In an unprecedented move, Congress passed legislation Tuesday including an amendment which would maintain one of the most contentious hangovers of the Bush administration, allowing the Department of Defense to exempt torture photos of US detainees overseas from public access under Freedom of Information Act requests.
This amendment, passed as part of the Department of Homeland Security appropriations bill, would give Secretary of Defense Robert Gates the prerogative to suppress photos of prisoner abuse taken after September 11, 2001, which could result in the endangering of US citizens, troops or employees.
The availability of photos and records of detainee abuse has been at the center of a lawsuit between the American Civil Liberties Union and the Bush administration since 2003. The lawsuit is now continuing under the Obama administration and is aimed at photos that were ordered released by a federal appeals court as part of an ACLU FOIA lawsuit, though it would apply to other photos in government custody as well.
President Obama had initially indicated that he would not block the release of these photographs; however, in May, he reversed his decision and filed an appeal with the Supreme Court.
Despite the uncertain effect of Tuesday's legislation on their ongoing litigation, the ACLU plans to continue with the case. It has thus far been upheld by two federal courts, which found that there was "significant public interest in the disclosure of these photographs." A decision from the Supreme Court is expected on October 30, 2009.
The measure in the appropriations bill was initially removed and then reintroduced covertly, according to Rep. Louise Slaughter (D-New York), who, during a speech on the House floor, expressed her disappointment. "It's unfortunate given that this Administration promised that openness and transparency would be the norm. We should never do anything to circumvent FOIA and I believe that our country would gain more by coming to terms with the past than we would by covering it up."
Both the inclusion of the FOIA amendment in the bill as well as the administration's decision to fight the release of the photos has been disillusioning for many who hoped that Obama would usher in a change to the policies which marred the Bush presidency.
"The failure of the country's current leadership to fully confront the abuses of the prior administration - a failure embodied by the suppression legislation at issue now - will only compound these harms," the ACLU said in their letter to Gates. "Those favoring suppression of the images of detainee abuse and torture have stated their concerns in the language of national security, but no democracy has ever been made stronger by concealing evidence of its wrongdoing."
In an open letter to Defense Secretary Gates, to whom the task of deciding which photos could be realized will fall, the ACLU urged him not to exercise the authority given him by the bill.
"Their release would allow the public to understand better what took place in the military's detention centers, and why. They might show patterns that have until now gone unnoticed. They would surely convey, better than mere text ever could, the cruelty of such practices as stress positions, hooding, and mock executions," the letter said.
The ACLU, in a press release Tuesday, also said releasing the photos "would show the pervasiveness of detainee abuse and would shed light on the connection between that abuse and the decisions of high-level Bush administration officials. The photos "are of critical relevance to an ongoing national debate about accountability."
They were, however, more hopeful regarding another provision passed in the appropriations bill, allowing the Obama administration to bring detainees to America to stand trial.
"Congress should not be passing legislation making it more difficult for President Obama to keep his commitment to closing Guantánamo," said Christopher Naders, ACLU senior legislative counsel in a press release Tuesday, "but it is a step in the right direction that the legislation allows for transfer of detainees for prosecution in the US. Continuing to hold detainees without charge or trial indefinitely flies in the face of our ingrained values of justice and due process. Our federal courts are perfectly capable of providing justice, security and the protection of fundamental rights, and we should use them to finally achieve real justice in cases where evidence of terrorism crimes exists."
The Department of Homeland Security appropriations bill will now go to President Obama to be signed.
Yana Kunichoff is an intern at Truthout.