Blood on the floor and walls of a cell at Abu Ghraib. A provision in a Homeland Security spending bill would block the release of new images like these. (Photo: Wikicommons)
Congressional lawmakers moved a step closer Wednesday toward banning the Department of Defense from releasing photographs depicting US Soldiers abusing detainees held in prisons in Iraq and Afghanistan.
Conferees on the Senate and House Appropriations Committees released a Homeland Security spending bill summary, which includes a provision that would allow President Obama to authorize "the Secretary of Defense to bar the release of detainee photos," essentially exempting the images from Freedom of Information Act requests.
The American Civil Liberties Union, which sued the government in 2003 to gain access to photographs and videos related to the treatment of "war on terror" prisoners in US custody, criticized committee members who supported the measure.
"Congress should not give the government the authority to hide evidence of its own misconduct, and if it does grant that authority, the Secretary of Defense should not invoke it," said Jameel Jaffer, director of the ACLU's National Security Project. "If this shameful provision passes, Secretary [of Defense Robert] Gates should take into account the importance of transparency to the democratic process, the extraordinary importance of these photos to the ongoing debate about the treatment of prisoners, and the likelihood that the suppression of these photos will ultimately be far more damaging to our national security than their disclosure would be.
"The last administration's decision to endorse torture undermined the United States' moral authority and compromised its security. The failure of the current administration to fully confront the abuses of the last administration will only compound these harms."
The US District Court for the Southern District of New York ordered the release of the photos in a June 2005 ruling that was affirmed by the Second Circuit Court of Appeals in September 2008. The Obama administration indicated earlier this year it would abide by a court order and release at least 44 of the photographs in question, but President Obama backtracked, saying he conferred with high-ranking military officials who advised him that releasing the images would stoke anti-American sentiment and would endanger the lives of US troops in Afghanistan and Iraq.
As Truthout previously reported, the Obama administration petitioned the US Supreme Court to hear the case at the same time the president privately told Sens. Joe Lieberman (I-Connecticut) and Lindsey Graham (R-South Carolina) he would work with Congress to help get a measure passed aimed at blocking the photographs from being released.
That revelation was made in a footnote contained in a 33-page petition the Obama administration filed with the high-court in August.
According to the petition and other documents, the photographs 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 are said to 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."
Supreme Court justices are expected to meet Friday to discuss whether they intend to take up the case. Presumably, the Obama administration would withdraw its Supreme Court petition if Congress passes a final version of the bill with the language banning the photos intact.
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."
Lieberman and Graham sharply criticized Obama's original decision not to fight the appeals court ruling in favor of the ACLU's FOIA lawsuit all the way to the Supreme Court. Lieberman and Graham then sponsored an amendment - the Detainee Photographic Records Protection Act of 2009 - attached to the Senate's Homeland Security appropriations bill that called for the Department of Defense to prohibit the release of abuse photographs for a period of three years.
The Senate unanimously passed the Lieberman/Graham amendment on July 9. Congressmen Mike Conaway (R-Texas) and Heath Shuler (D-North Carolina) sponsored similar legislation in the House. But House Speaker Nancy Pelosi said at the time it was a strong possibility the language barring release of the photographs would be stripped from the final version of the spending bill, which now appears unlikely.
In a statement after House and Senate conferees on the Appropriations Committee met Wednesday, Lieberman and Graham said they are both "looking forward" to swift passage of the legislation and urged Obama to sign the bill into law.
"I'm pleased Congress has finally acted to prevent the further release of photos showing detainee abuse," Graham said. "I hope the courts will give deference to the Executive and Legislative branches who now speak with one voice prohibiting the photos' release. From the beginning I have said these photos do not add anything new. The release of these photos would be used by our enemies to incite violence against our soldiers and civilians serving abroad."
Last September, in upholding a lower court ruling ordering the release of the photos, the Second Circuit Court of Appeals 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."
Additionally, the appeals court shot down arguments like those made by Graham, saying, "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 added that releasing "the photographs is likely to further the purposes of the Geneva Conventions by deterring future abuse of prisoners."