A naked prisoner chained to prison bars. (Photo: CID)
The American Civil Liberties Union asked the US Supreme Court this week to deny a request by the Obama administration to review and, if justices take up the case, reverse a lower court's ruling ordering the government to comply with a Freedom of Information Act request and release more than four dozen photos depicting US soldiers in Iraq and Afghanistan abusing prisoners.
The group's 37-page opposition was supported by friend-of-the-court briefs filed by Human Rights Watch, the International Center for Transitional Justice and Amnesty International and another filed by the Reporters Committee for Freedom of the Press and 16 media organizations. The ACLU filed a Freedom of Information Act lawsuit in 2003 to gain access to the images.
"These photos may be profoundly disturbing, but they are a crucial part of the historical record and the appeals court was right to find that they should be released," said Jameel Jaffer, director of the ACLU National Security Project. "It's disappointing that the Obama administration, which in other contexts has recognized the close connection between transparency and accountability, is continuing to argue that the photos should be suppressed."
But even if the court refuses to take up the case, President Barack Obama has vowed to continue to suppress the images.
Obama sent a letter July 29 to Sens. Joe Lieberman and Lindsey Graham informing them that he would work with Congress to ensure legislation is passed that would block the release of the photographs.
The disclosure was made in a footnote in a 33-page petition the Obama administration filed last month with the US Supreme Court. Neither the White House nor spokespeople for Lieberman and Graham responded to phone calls and email queries seeking a copy of the letter.
The petition confirms that the contents of the 44 images at issue includes one in which a female solider pointed a broom at one detainee "as if I was sticking the end of a broom stick into [his] rectum."
Other photos at issue show US soldiers pointing guns at the heads of hooded and bound detainees in Iraq and Afghanistan. The filing also notes that the detainee abuse was investigated by the US Army's Criminal Investigation Division and "three of the six investigations led to criminal charges and in two of those cases, the accused were found guilty and punished."
In June, the Senate unanimously passed the Detainee Photographic Records Protection Act of 2009, an amendment to the supplemental appropriations spending bill sponsored by Lieberman and Graham. The House of Representatives referred the amendment to two House committees on June 18 where it is pending.
Additionally, on July 9, the Senate unanimously passed the amendment again as it was attached to the Department of Homeland Security appropriations bill.
"The President recently informed the sponsors of the pending detainee photograph legislation that he 'support[s] this legislation' and 'will work with Congress to get it passed,'" says the footnote in the Supreme Court petition prepared by Solicitor General Elena Kagan, quoting from Obama's July 29 letter to Lieberman and Graham.
The bill has faced opposition in the House and that may explain why the Obama administration has decided to appeal to the US Supreme Court if the House kills the measure altogether
Lieberman (I-Connecticut) and Graham (R-South Carolina) were sharply critical of Obama's decision not to fight a final ruling in March by the US Court of Appeals for the Second Circuit that called upon the Department of Defense to release the photographs. Obama indicated he would abide by that decision, but he abruptly shifted his stance after he was publicly criticized by the likes of Dick Cheney and Cheney's daughter, Liz.
Lieberman and Graham's amendment would authorize the Secretary of Defense to prohibit the release of the abuse photographs and videos for three years and renew it for three-year intervals thereafter. The Obama administration would, presumably, drop its appeal if the House passes the legislation when it returns from its summer break in September.
In June, Graham said during a floor speech, before the appropriations spending bill was passed, that White House Chief of Staff Rahm Emanuel assured him that the abuse photographs would never "see the light of day" and would sign an executive order if the Supreme Court refuses to take up the case or rule in favor of the administration if it decides to hear the appeal or if Congress does not pass legislation banning the disclosure of the images.
"I wanted to be assured by the administration that if the Congress fails to do its part to protect these photos from being released, the President would sign an Executive order which would change their classification to be classified national security documents that would be outcome determinative of the lawsuit," Graham said on June 17. "Rahm Emanuel has indicated to me that the President is committed to not ever letting these photos see the light of day, but they agree with me that the best way to do it is for Congress to act."
Obama had originally decided to release the photos because the administration did not believe the Supreme Court would take the case.
At a press briefing on April 24, White House Press Secretary Robert Gibbs told reporters, "the Department of Justice [had] decided based on the [Second Circuit's] ruling that it was hopeless to appeal."
Gibbs's comment came a day after acting US attorney Lev Dassin confirmed in a letter filed with US District Court Judge Alvin Hellerstein that the Obama administration would not challenge the Second Circuit's decision.
But in May, following the long-awaited release of Bush administration torture memos that Republicans and former Bush officials sharply criticized, the Obama administration changed its position and said it would fight to keep the photographs secret, fearing that releasing it would stoke anti-American sentiment in the Middle East and put the lives of US soldiers at greater risk.
Obama's decision to fight to conceal the photos to the Supreme Court marks an about-face on the open-government policies that he proclaimed during his first days in office.
On January 21, Obama signed an executive order instructing all federal agencies and departments to "adopt a presumption in favor" of Freedom of Information Act requests and promised to make the federal government more transparent.
"The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears," Obama's order said. "In responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public."
But in the Supreme Court petition Solicitor General Kagan filed Friday, the administration argued that a specific provision of FOIA allows the withholding of information if it threatens the lives of individuals.
The petition says that the Second Circuit Court of Appeals ruled that FOIA "mandates the public disclosure of such photographs - regardless of the risk to American lives - because FOIA Exemption 7(F) requires the government to 'identify at least one individual with reasonable specificity' and show that disclosure 'could reasonably be expected to endanger that individual.'"
Kagan wrote that the Second Circuit Court of Appeals misinterpreted the law when it ruled that the government had to identify specific individuals who would be harmed by the disclosure of the photographs
The Obama administration argued that Exemption 7(F), "is inconsistent with the text of Exemption 7(F), which broadly encompasses danger to 'any individual,' with no suggestion of the court's extra-textual requirement of victim specificity. The history of drafting that exemption "underscores that conclusion. Congress did not mean for public disclosure of agency records to trump the life and physical safety of individuals - particularly in a case such as this, in which the government has already made public the underlying investigative reports revealing all relevant allegations of wrongdoing and the associated investigative conclusions."
"The President and the United States military fully recognize that certain photographs at issue depict reprehensible conduct by American personnel and warranted disciplinary action," the brief states. "There are neither justifications nor excuses for such conduct by members of the military. But the fact remains that public disclosure of the photographs could reasonably be expected to endanger the lives and physical safety of individuals engaged in the Nation's military operations in Iraq and Afghanistan. The photographs therefore are exempt from mandatory disclosure under FOIA. Review by this Court is warranted to give effect to Exemption 7(F) and the protection it affords to the personnel whose lives and physical safety would be placed at risk by disclosure."
The ACLU said in its opposition brief that the Obama administration's "argument here would turn FOIA on its head by affording the greatest protection from disclosure to records that depict the worst governmental misconduct."
The Obama administration's arguments against disclosure are not that much different from the Bush administration's, and have, as the ACLU noted, been rejected by Second Circuit Court of Appeals. The appeals court said threats needed to be specific in order to justify withholding information.
The appeals court also shot down the Bush administration's attempt to radically expand FOIA exemptions for withholding the photos, stating that the Bush administration had attempted to use the FOIA exemptions as "an all-purpose damper on global controversy" and "an alternative classification mechanism."
"It is plainly insufficient to claim that releasing documents could reasonably be expected to endanger some unspecified member of a group so vast as to encompass all United States troops, coalition forces, and civilians in Iraq and Afghanistan," the appeals court panel of judges ruled.
The appeals court further deemed the Bush administration's position legally flawed and added that releasing "the photographs is likely to further the purposes of the Geneva Conventions by deterring future abuse of prisoners."
Last September, in upholding a lower court ruling ordering the release of the photos, the appeals court noted that past US administrations had championed the release of photos that showed prisoners of war being abused and tortured.
Notably, after World War II, the US government publicized photos of prisoners in Japanese and German prisons and concentration camps, which the court noted, "showed emaciated prisoners, subjugated detainees, and even corpses. But the United States championed the use of the photos as a means of holding the perpetrators accountable."
The petition heavily recycles the Bush administration's legal arguments and includes a previous sworn declaration from the likes of former Joint Chiefs of Staff Richard Myers warning that releasing the photographs to the ACLU would threaten national security and could lead to the deaths of American servicemen and women in Iraq and Afghanistan.
In it's opposition brief filed with the Supreme Court, the ACLU contends that granting the Obama administration's petition "would only serve to further delay the disclosure of information that is of extraordinary interest to the public and of crucial importance to the ongoing national discussion about the abuse of prisoners in US custody overseas."