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Judge: Government’s Justification for Keeping Detainee Abuse Photos Secret Is ‘Not Sufficient’

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A federal district court judge has ruled that the government’s certification to prevent the disclosure of thousands of photos of detainee abuse and torture in Afghanistan and Iraq—including inhumane treatment at Abu Ghraib prison—is “not sufficient to prevent publication.”

The federal judge ordered the government to appear in court on September 8 and produce the photographs or submit additional evidence to support keeping the photos secret.

American Civil Liberties Union (ACLU) staff attorney Marcellene Hearn reacted, “Americans have a right to know what was done in our names in military detention centers. We have a right to know what resulted from senior officials’ decisions to authorize and tolerate the abuse and torture of prisoners.”

The ACLU has been pursuing the release of records related to detainee treatment and “the death of prisoners in United States custody and abroad after September 11, 2001, since October 2003.

In October 2009, the Protected National Security Documents Act amended the Freedom of Information Act (FOIA) to “provide that photographs could be made exempt from disclosure for a three-year certification by the Secretary of Defense to the effect that publication would endanger American lives.” Prime Minister Nouri al-Maliki asked President Barack Obama not to release photographs of detainees abuse, for “fear of the consequences.” Secretary of Defense Robert Gates filed a certification to prevent the release of photographs and the court upheld that certification.

Three years later, Secretary of Defense Leon Panetta renewed the certification, even though US troops had withdrawn and the war in Iraq had been declared to be over.

Judge Alvin Hellerstein, who was appointed by President Bill Clinton, found that Panetta’s certification failed to show why the release of the photos would continue to “endanger the citizens of the United States, members of the United States Armed Forces or employees of the United States Government deployed outside the United States.”

 Hellerstein agreed with the ACLU that the government had failed to make an individual determination about each photo, as required by law. Panetta’s certification had been “conclusory as to all, when it should have been focused on each separate photograph.”

Additionally, Hellerstein highlighted the different circumstances that existed when Panetta renewed the certification to ensure detainee abuse photos remained secret.

“On November 9, 2012, the United States’ combat mission in Iraq had ended (in December 2011), and all (or mostly all) American troops had been withdrawn from Iraq. I am aware of no impassioned plea from the Prime Minister of Iraq relating to the photographs made at that time. The 2009 certification was based on the recommendation of the US commander responsible for the continuing deployments on active battlefields of our forces in Iraq.”

Hellerstein continued, “The 2012 certification was based on the recommendation of the US commander responsible for the deployment of our troops in Afghanistan. Given the passage of time, I have no basis for concluding either that the disclosure of photographs depicting the abuse or mistreatment of prisoners would affect United States military operations at this time, or that it would not.”

US military operations are escalating in Iraq again as the government monitors and launches attacks against the Islamic State in Iraq and Syria (ISIS). That may provide new justification for keeping photos showing the truth of how detainees were handled secret. But, under the law, the government cannot invoke anything related to ISIS to keep photographs from being released. Everything submitted has to explain why Panetta was justified in suppressing the release of photos on November 9, 2012.

When Obama reversed his position and demonstrated in May 2009 that he was going to block the release of the photographs, the ACLU, Amnesty International, Human Rights Watch, Reporters Committee for Freedom of the Press and other groups protested.

“The hallmark of an open society is that we do not conceal information that reflects poorly on us—we expose it to the light of day, so that wrongdoers can be held accountable and future abuses prevented,” a letter to Obama declared.

Finally, thousands of photographs may see the “light of day.”

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."