The Justice Department filed a motion in the 2nd Circuit Court of Appeals today asking the court to recall its mandate that the administration hand over dozens of photographs of detainees held in Iraq and Afghanistan.

The ACLU sought the pictures, which allegedly depict detainee abuse, in a Freedom of Information Act lawsuit. The administration initially agreed to comply with a 2nd Circuit order to turn over the photographs. But earlier this month, President Obama decided not to do so. On May 21, the Senate adopted an amendment to a fiscal 2009 supplemental spending measure that would exempt the photos from the FOIA law.

The government told the 2nd Circuit -- whose members include Supreme Court nominee Sonia Sotomayor -- that Solicitor General Elena Kagan has decided if that legislation is not enacted by June 9, the government will petition the Supreme Court to decide the case