CommunityThe Dissenter

Government Seeks ‘Emergency Stay’ of Decision Ordering Release of Thousands of Torture Photos

The United States government requested an “emergency stay” of a federal court decision, which ordered thousands of photographs of detainee abuse and torture in Iraq and Afghanistan to be released.

In March, Judge Alvin Hellerstein of the US District Court of the Southern District of New York was no longer willing to tolerate the government’s secrecy arguments or the government’s refusal to individually review each photo and explain why each photo would pose a national security risk if made public.

The judge immediately issued a temporary stay and gave the government 60 days to file an appeal.

With that 60-day period about to elapse, the government abruptly announced it would appeal on May 15 and filed a motion requesting a stay.

The American Civil Liberties Union, which 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, objected in a letter to the Second Circuit Court of Appeals [PDF].

“The government simply does not explain why it could not have made its decision long before the eve of the expiration of the stay granted by the district court,” the ACLU declares. “Its last minute decision to do so is abusive of both the court and counsel and should not be rewarded by the routine grant of this kind of motion which the government expressly seeks.”

Back in August, when Hellerstein ruled that the Secretary of Defense’s certification for keeping the photos secret was “inadequate,” the government was instructed to individually review the photographs and inform the court of why each photograph could not be released. Government attorneys rebuffed his request.

In October and February, the court reminded the government that the Secretary of Defense had to certify each picture “in terms of its likelihood or not to endanger American lives.” It explained again afterward that the government could not certify a mass of photographs as a risk to national security. The government never complied, which led to the judge’s decision in March.

The Protected National Security Documents Act (PNSDA) was passed in October 2009 to amend the Freedom of Information Act. It was the prime measure supported by President Barack Obama to ensure torture photographs remained secret.

The law established 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. (Military operations against ISIS were not ongoing at the time.)

The ACLU points out in the letter to the judge, “PNSDA did not strip courts of the power to review the basis for the secretary’s suppression of otherwise public documents.” The Secretary of Defense “must provided some basis to believe that he reviewed each photograph and evaluated its individual risk in advance of certification.”

Only a “sample of photographs” were ever reviewed by the government for this lawsuit, and the ACLU argues an “emergency stay” should not be granted because the government is not likely to succeed in its appeal.

The government maintains in its motion that an “emergency stay” will cause minimal harm to the ACLU. On the other hand, no stay will mean the photographs are released and the “status quo” is destroyed. It will harm the ability of the government to appeal.

“The absence of a stay will cause the disclosure of records that the Secretary of Defense has certified to be exempt from disclosure under the PNSDA, a statute that was enacted by Congress in order to protect U.S. citizens, members of the US Armed Services, and US government employees from harm while overseas,” the government argues.

According to the government, the Secretary of Defense’s certification of the photographs is not subject to “judicial review.” They could remain in secret in perpetuity if the Secretary of Defense kept re-certifying them as a risk. The district court also erred in making its own “assessment of the likelihood of harm, based upon its own analysis of the military situation in Iraq. That was reversible error.”

Nothing in the text of the PNSDA precludes the Secretary from collectively certifying a group of photos, so long as the Secretary has concluded that disclosure of those photos, as a group, would endanger US citizens, members of the Armed Forces, or US Government employees abroad. [emphasis added]

But the ACLU counters the government’s argument that there would be no “substantial injury” if the government was granted an “emergency stay”:

This case concerns records, including photographs, that document our Government’s treatment of detainees abroad. Since 2004, Plaintiffs have diligently sought release of this information so that the public could have the information necessary to understand the nature of these actions, confront the reality of the conditions endured by detainees, and grapple with the public policy ramifications of this brutality…

…And, as Judge Hellerstein warned, the Government in this case has done everything in its power to avoid this democratic debate, employing what the Court deemed a “sophisticated ability to obtain a very substantial delay.” [emphasis added]

While it is true that the “status quo” will be preserved if the government is granted an “emergency stay,” the ACLU suggests that is no argument for automatically granting such a stay because a stay will make it possible for the government to “continue to evade its statutory responsibility of openness to its citizens.”

This impacts the ACLU, which has worked to educate the public on the torture and abuse committed by US officials and military personnel. If the photographs continue to remain secret, the American public will remain in the dark on the extent of torture committed in their name.

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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."

  • Shutter

    We can’t read the TARP giveaway, we can’t see photos which would no doubt conclusively prove that the United States government is a lying, murdurous bunch of thugs… and this is the stuff we know about. Makes ya wonder what unknown unknowns are out there buried in the desert.

  • bsbafflesbrains

    Stay necessary because Government hasn’t found enough low ranking patsies to take the blame this time. Maybe throw in a Captain or Major this time.

  • ThingsComeUndone

    “In October and February, the court reminded the government that the Secretary of Defense had to certify each picture “in terms of its likelihood or not to endanger American lives.” ” Any picture with an American face on it will endanger an American life granted the life of someone who committed torture. But thats the whole point we want to identify these people cops release photos of crooks all the time.

  • ThingsComeUndone

    America signed treaties against torture and to protest human rights this law violates those treaties what happens when new federal law contradicts an already signed International treaty?

  • jane24

    Do they also fear that the release of these photos might, (just might), stir up some outrage here in the US?

  • bsbafflesbrains

    Wasn’t there a time in USA when torture was illegal and we were outraged by it even without the pictures?

  • jane24

    Things do seem to have changed…and not for the better! Torture apologists, (and they’re out there), tell me that this was “necessary” in order to “protect us.” Sad when you think about it.

  • dubinsky

    ‘ The government maintains in its motion that an “emergency stay” will cause minimal harm to the ACLU”
    I can’t see how another 60 days much matters at this point.

  • dubinsky

    that never changed. ot was still illegal under federal law even when the Bush admin chose to pretend otherwise.

  • JamesJoyce

    “I can’t see how another 60 days much matters at this point.”

    How naive can one be…..

    Nazis were not subject to judicial review either. They rigged the game to subvert safeguards put in place, in a one time republic. Here we have the overt violation of separation of powers when the judiciary is usurped. When does the government exhaust all its remedies or do we go judge shopping all the way top the top to hide government criminality? Funny how all that criminality was exposed at Nuremberg Trials??

    “What does another 60 days matter at this point?” Sounds like Hillary??

    In another 60 days we could be at war with Iran predicated a “Gulf of Aden Incident,” probably fabricated like a “Tonkin Incident” and/or “Yellow cake,” as Nazi used operation Himmler to preemptively invade Poland and the issue of Judicial Review goes away with new, War Footing, after the old war footing.

    This is what can happen in 60 days when one looks only forward. You fall off of a cliff. Google it or simply follow the bouncing ball in the sing-a-long.

    Fact is “Zoogle” did not exist in Germany in 1933 or 1939. One might figure we would be able to learn something from prior mistakes given Google, in the year 2015? Guess not?

  • dubinsky

    wow. are you rabid or merely freaking out?

    a short stay allowing for appellate review has not a dam thing to do with subversion or erosion of separation of powers or flaming Nazis,

    or any imaginary war with Iran.

    get a grip and some chill pills, James,

  • JamesJoyce

    Simpler please…. What happens when government officials lie under the color of law to justify policy and preemptive aggressive invasion of sovereign state and in clear violation of well established law?

    At the end of 1945 those responsible for such crimes were held accountable.

    As of yet those responsible for similar crimes in the modern era, post 911, have not been held accountable…

    Senator Byrd warned us and few listened to his warning. He was warning us about the “Good German,” and turning a blind eye…

    Americans do not turn blind eyes to fascist behavior committed in America’s name. It is un-American to remain silent and become the “next of kin” to the “Good German!”

    I doubt photos of the camps would ever have been released if we were all speaking German today?

    60 more dayz to hide reality? WTF?

  • Shutter

    He’s not rabid nor freaking out. Perhaps you need to take notes to better remember these potentially destabilizing events. They often disappear ‘in process’, forgotten by the propaganda media, forgotten by individuals.

    We need more people who will draw the line and stand by it, not more mellow procrastinators.

  • JamesJoyce

    I think you are foolish and ignorant of history. These are war crimes. You need to get a grip on history and more important, human nature. Where were you in 1964?

    Excuse me, if a court orders the release of material held by the executive and the executive refused to comply we have a constitutional crisis.

    I did mention exhaustion remedies. How many bites of the apple is the government entitled to??

  • Shutter

    Make that Captain or Major a female minority, older the better. Remember the General at Abu Ghraib? She was the perfect fall guy.. or gal.

  • bsbafflesbrains

    I don’t see what the justification was for another 60 day delay? Obfuscate, delay, and abuse of National Security secrecy laws have been the order of the day since 2001. Big surprise is that this Judge is not “goin along to get along” with the PTB.

  • tjbs

    Torture / Murder / Treason

  • dubinsky

    I think that you have no idea in hell as to whether or not I’m ignorant of history and that you best learn to get some facts before running your yap.

    in 64, I was 13 and just starting 10th grade……. in 66, I was demonstrating for civil rights and against a war in Asia.

    try a nice cold shower,

  • starrynight

    who gives a shit. the president of the usa is covering criminals

  • dubinsky

    we damn sure don’t need people who think that appellate briefs are destabilizing or something against which we must “draw a line”.

    freaking lunacy is not a philosophical or political stance that serves us well.

    I shutter to think about those who are too weirded out to understand that

  • tjbs

    Over 108 died as suspects under “questioning”. I’m betting there are some pictures of some fresh dead “suspects” along with their American murderer .That could be a problem for the smiling murderer as is there is no ,zero, none statute of limitations for murder.

    Myself, I firmly believe each and every service person is a traitor to their oath to preserve and protect the constitution who went on the Iraq killing spree.

  • tjbs

    I give a big shit. The president is an accessory after the fact and one day may answer for his war crimes and the cover-up of the previous criminal administration.

  • Wayne Christensen

    They’ve already has several years and have done nothing. Why should they have more time to do nothing again? Would you explain your thinking regarding giving the gov’t more time?

  • Wayne Christensen

    Aren’t Saddam’s WMD’s still buried out there somewhere?

  • JamesJoyce

    “Nuremberg Defense” did not work in 1945=46. It should not be applicable in 2015.

    I wonder if some here even understand the significance of using the the city of Nuremberg’s name when used the term “Nuremberg Effect,” or “Nuremberg Laws.”
    Understanding what they were and the import of the laws on a one time republic is correct and proper, given post 911 realities here in America.

  • dubinsky

    If I have to explain to you why the orderly process of the courts is a good thing and our main protection from overreach by the executive branch then it’s just a shame that you never got the education that you should have.

    ask Nixon about the courts and release of recordings…….

    or just finish high school.

  • dubinsky

    you really should start giving a shit.

    it’s important not to remain full of it.

  • JamesJoyce

    We have much in common. I will not take a cold shower.

    Being 13 years old in 1964, you should know better…

  • JamesJoyce

    “….before running your yap.”

    KMA!

  • dubinsky

    I much prefer hot showers as well

  • dubinsky

    not gonna,,,especially if you refuse to take a shower.

  • starrynight

    well slapping the shit out of me won’t lesson the criminality

  • starrynight

    no they haven’t.we will never agree to compromise

  • Shutter

    Grow up dubinsky. You haven’t aged well at all.

  • dubinsky

    I promise not to slap ya or get slaphappy.

  • dubinsky

    well I ain’t a cheese or a bottle of wine.

    I do have a far better than average grasp of 20th century history.
    and don’t much care for someone who doesn’t know me from a hot rock to be yapping about me being ignorant.

  • dubinsky

    what’s the problem in a delay of sixty days for photos that are maybe 10 years old?

    the pictures aren’t gonna change in two months and neither is the overall situation in the US, Iraq and Afghanistan.

  • dick_c

    While I’m not personally upset about the stay, I can see how those who are more involved would be. More power to them. I hope the last thing I’d do would be to argue that others should be as complacent as I sometimes tend to get.

  • dubinsky

    nothing at all complaisent about the appeals process.

  • dick_c

    I said nothing about complacency of the appeals process. This has been going on for much longer than necessary. The ACLU first filed their FOIA request for documents and photos relating to torture six months before the Abu Ghraib story broke. After this length of time I can’t find any fault with anyone being upset with the government’s refusal to cooperate.

  • dubinsky

    and I’m not supporting the government’s position.

    all I’ve said was another 60 days to follow legal procedure isn’t going to much matter as the photos are all several years old and there’s nothing urgent about this particular material

    the more that the (higher) courts rule against the government’s position on classified material, the better for all of us…..

  • dubinsky

    where did you get the “108”, if I may ask?

  • FukTheArmy

    We hung Germans and Japanese after WWII for such things.

    Congratulations Amerikkka!
    You have now debased yourself down to the level of Hitler & gang.

  • FukTheArmy

    Nuremberg was chosen for the war crimes tribunal because it was the spiritual home of the Nazis, it was also where they stripped Jews of their citizenship in 1935 under the ‘Nuremberg decree’.
    They held annual week-long party rallies there up to WWII.

  • Wayne Christensen

    I asked you a simple question. You, in return, insult me instead of answering my question. Get a grip snake.

    The executive branch has already had years to comply with the “orderly process of the court.” They have not done so. They drag their feet so they can delay the release of said photos as long as possible. This court decision is designed to keep the executive branch from “overreaching.” They should comply or they are putting themselves above the law.

  • dubinsky

    going to a higher court is not putting themselves above the law, it’s following it.

    when Julian Assange had his barristers appeal the extradition order, it’s wasn’t Assange putting himself above the law. it was Assange seeking legal relief.

    it was when Assange lost at every level and then ran away and hid, claiming that the law was all unfair, that he finally revealed himself to be a narcissist who put himself above the law.

    and sorry, if I was too harsh with you, but I did no more than express the idea that an appeal and sixty day delay wasn’t going to harm anyone…and people insulted me and started lecturing me about Nazis.

    (and it’s a blue-tongued skink, not a snake)

  • JamesJoyce

    you lose………

  • Wayne Christensen

    Thanks for both the clarifications

  • dubinsky

    asking you a question…is an activity that is just a loss?

  • dubinsky

    no thanks necessary.

    I came to discuss issues and events not to fight about personal things.