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Obama Builds On Record Of Transparent Secrecy, Won’t Disclose Thousands Of Torture Photos

President Barack Obama’s administration has once again shown it is committed to transparency, as long as that transparency does not reveal abuse or crimes committed by military officers or security officials.

Nearly 200 indistinguishable photos of detainee abuse, including close-ups showing cuts, bruises, swelling, etc, were released by the Pentagon on Friday, February 5 [PDF].

The release was clearly timed to minimize media interest in the photos. On top of that, months ago, the Pentagon, with the support of the Obama administration, re-classified nearly two thousand other photos in order to make it more difficult for a court to order their release.

The photos were only released because the American Civil Liberties Union (ACLU) filed a lawsuit more than twelve years ago. In March 2015, a federal district court ordered the release of photos. The Pentagon completed a new review of the photos last November to protect the vast majority of them from disclosure.

“From the nearly 6,000 reports, investigations, emails, and other documents the government has been forced to release to us in the course of this litigation (all searchable in our Torture Database), we have found more than 100 documents that either reference photos related to cases of abuse or actually contain photos that were redacted before they got to us,” according to the ACLU. “From what we can infer from the descriptions, we know that the most damning evidence of government abuse remains hidden from the public.”

For example, one Army investigation from June 2004 found U.S. soldiers at an unnamed detention facility near Baghdad abused an elderly woman. Her fingers were broken. She got a black eye. She was “made to crawl around on all fours as a ‘large man rode'” her. There are photos mentioned in the Army’s report on the investigation.

In June 2005, one detainee claimed he had a “bloody rectum” after being kicked. The detainee’s injury was not documented at Abu Ghraib so the Army determined there was no probable cause to believe abuse occurred. There are photos mentioned in the report on the investigation.

Three Iraqis were kicked and struck in the back of their heads by soldiers, according to a 2003 Army memo. There are photos of this abuse.

Each of the photos show evidence of widespread detainee abuse and torture in Afghanistan and Iraq, including instances of inhumane treatment at Abu Ghraib prison.

One of Obama’s most notorious acts in his first year as president was to instruct government lawyers to oppose the release of photos of detainee abuse and torture. He not only parroted the fear-mongering of the Pentagon by suggesting disclosure might endanger troops, but he also argued it could have a “chilling effect” on investigations into detainee abuse. This is, in retrospect, laughable because only a few lower level government officials have been held accountable for systematic abuse or torture.

In October 2009, the Protected National Security Documents Act amended the Freedom of Information Act 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 U.S. troops had withdrawn, and the war in Iraq was declared to be over.

Judge Alvin Hellerstein of the U.S. District Court of the Southern District of New York was never convinced that the government properly justified why each photo must remain secret. Hellerstein also contended different circumstances existed in Iraq when Panetta renewed the certification in 2012.

Panetta’s certification was not the result of a review of each individual photograph, which is how the review should have been conducted. The judge also did not buy the argument that the Islamic State would pose a greater threat if the photographs were released. As Newsweek reported, he believed soldiers and citizens were as “exposed” as they were when the court favored release in 2005.

Every step of the way, as is often the case when the government fights the release of information, the government employed stall tactics and legal maneuvers to postpone judgment on this significant lawsuit.

On February 4, 2015, Hellerstein said it appeared the “government’s conduct reflected a ‘sophisticated ability to obtain a very substantial delay’” in order “to defeat FOIA’s purpose of prompt disclosure.”

The efforts to delay the lawsuit paid off. The Obama administration was able to seize upon the expiration of Panetta’s certification and, instead of releasing all the photos, fine tune the process so it would be slightly less bothersome to a court. It also enabled them to decide what photos they wanted to release on their own terms without having to follow any order from a judge.

Dr. Vincent Iacopino, medical director of Physicians for Human Rights (PHR), reacted to the few hundred photos the Pentagon released. “These photos fail to show a single act of abuse, which the government’s own records describe as having taken place.”

“The failure to release virtually any image responsive to the ACLU’s request is tantamount to obstruction of justice,” Iacopino asserted. “There was widespread and systematic torture and ill-treatment of detainees in military custody, as our investigations have previously shown. The release of those photos could shed light on one of the darkest chapters in U.S. history. The public has a right to see all the photos and to know what was done in its name.” [Note: Physicians for Human Rights is a party to the ACLU lawsuit.]

“In releasing the photos, the Defense Department points to the punishment of a handful of low-level soldiers, but the scandal is that no senior official has been held accountable or even investigated for the systemic abuse of detainees,” said Alex Abdo, an ACLU staff attorney. “What the photos that the government has suppressed would show is that abuse was so widespread that it could only have resulted from policy or a climate calculated to foster abuse. That is why the government must release all of the photos and why today’s selective disclosure is so troubling.”

The concealing of photos of torture and abuse is similar to other instances where secrecy was more important to the Obama administration than truth and accountability.

After months of obstructing a court order to release footage of Guantanamo military personnel force-feeding a former prisoner, the Obama administration filed an appeal to suppress disclosure last month.

Cori Crider of Reprieve, which pursued the lawsuit on behalf of former Syrian prisoner Abu Wa’el Dhiab, said “I hoped for better from the Solicitor General, and from an Administration that promised to be ‘the most transparent in history.’ Make no mistake—the force-feeding tapes would make your blood run cold. One assumes that is why they have fought so hard to keep it secret. We’ll keep pushing for the truth in the Court of Appeals.”

The Obama administration has rapidly increased the amount of information which it refuses to release under the Freedom of Information Act because of “national security.” It has invoked the “state secrets privilege” to prevent CIA torture survivors, like Khaled el-Masri, from having their day in court. It has relied on secret interpretations of the law to place suspected terrorists on “kill lists” and expand warrantless surveillance. And the administration has zealously pursued whistleblowers, or lower-level government officials, who leak details about corruption within security agencies and the military.

The Most Transparent Administration Ever™ has perfected the art of feigning openness while disingenuously engaging in transparent secrecy. After seven years, it is a model for future administrations seeking to strike a balance between shielding war criminals and abuses of power from scrutiny and throwing civil liberties and human rights organizations bread crumbs to create the illusion that the president truly opposes torture and other crimes.

Kevin Gosztola

Kevin Gosztola

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