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.