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Judge Gives US Government a Week to Appeal or Comply With Order Involving Thousands of Prisoner Abuse Photos

The United States government has been given a week to appeal or comply with a federal judge’s order to provide a justification for why approximately 2,100 photographs of torture and abuse of prisoners must remain secret.

The American Civil Liberties Union has pursued 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 (PNSDA) 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Three years later, Secretary of Defense Leon Panetta renewed the certification, even though US troops had withdrawn and the war in Iraq had been declared over.

Judge Alvin Hellerstein 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.” He ordered the government in August 2014 to go through each of the photos and explain why they should not be released.

On February 4, Hellerstein informed the government he was skeptical of Panetta’s reclassification. He had already seen a small sample of the photos and did not think a national security exemption covered many of the photos he reviewed, according to The Guardian. He requested the government put forward a plan for assessing each individual photo to justify withholding them from the public.

The government had previously been given a December deadline for completing a review of the secret photos. But, in a motion [PDF], the government objected to the court’s order.

According to The Intercept, government lawyers invoked the Islamic State’s use of past abuses to justify executions of hostages. A government lawyer stood in court and argued the government had already fulfilled its obligation to “review” the photos when associate deputy general counsel in the Department of the Army, Megan Weis, was designated in 2012 to look at the photos on Panetta’s behalf.

“During this review, she placed the photographs into three categories based upon the content of each photograph. Specifically, Ms. Weis considered the extent of injury suffered, if any, by the detainee depicted in the photograph; whether the photograph depicted United States service members; and the location of the detainee in the photograph (e.g., at point of capture, at a medical facility, etc.),” the government explained in its motion.

“Five to ten photographs from each of these three categories were then selected to comprise a representative sample of the [Defense Department] Photos. Ms. Weis worked directly with leadership in the Department of Defense, Office of General Counsel to ensure that this representative sample accurately characterized all of the photographs.”

General John R. Allen, who was the commander of military forces in Afghanistan, General James N. Mattis, commander of US Central Command and General Martin Dempsey, chairman of the Joint Chiefs of Staff, reviewed the sample and recommended the photos remain classified.

Hellerstein was not satisfied with this process.

The judge said he would be willing to go through the photos one by one in a closed session with the government. The government could explain why each one had to remain secret. But, at one point, Hellerstein added, “I did not enjoy seeing the pictures the first time. I would not want to see them again.”

He did not believe any threat posed by the Islamic State was justification for secrecy. Newsweek reported Hellerstein contended soldiers and citizens were as “exposed” as they were when the court favored release in 2005.

If the government refused to comply with his order, the court would be in a position to simply approve the release of all photos. Hellerstein was certain the government did not want that to happen.

When Obama refused to release the photos in 2009 and responded to criticism, one of his remarks in defense of the decision was that they were not “particularly sensational.”

Journalist Jason Leopold reported last year that documents from the Defense Department show the photos come from “203 closed criminal investigations into detainee abuse in Afghanistan and Iraq.”

The Defense Department had actually planned to “mitigate the threat to security and political stability” by offering apologies to “regional partners” and “audiences who find [the] images humiliating.”

The photos the government are afraid of releasing depict scenes such as soldiers zip-tying Iraqi detainees to bars in stress positions, a soldier pointing a pistol at a prisoner tied up with his head covered while lying on the ground, a dead Afghan national shot and killed and a female soldier holding a broom near a detainee as if she was going to stick it into his rectum.

Leopold’s report suggested the soldiers had wanted to hold on to these photos as “mementos.”

Like all court orders where judges refuse to show the utmost deference to the government’s secrecy arguments, the government does not think the court is correctly interpreting the law passed to effectively help the Pentagon conceal embarrassing photos. However, PNSDA clearly says the Secretary of Defense must issue a certification for a photograph. It does not refer to photographs collectively. So, a process that attempts to justify blanket certification for secrecy is not in line with the law.

The judge may decide that all or most of the photos should remain secret, but the judge has decided he will not defer to the government when it is not doing what the law says the Defense Department is supposed to do.

Photo from Wikimedia Commons

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Kevin Gosztola

Kevin Gosztola

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