Would the release of 10-year-old detainee abuse photographs, such as one depicting US soldiers pointing a broom handle at a hooded detainee's rectum, incite terrorist organizations and threaten national security?
That's a question government attorneys will have to answer next week when they explain to a federal court judge why as many as 2,100 unclassified photos of US soldiers abusing Iraqi and Afghan captives should continue to be concealed from the public.
The Freedom of Information Act (FOIA) case, which resurfaced last week, is part of the American Civil Liberties Union's (ACLU) long-running lawsuit against the US government to obtain documents about the treatment of detainees in custody of the CIA and military.
Last week, US District Court Judge Alvin Hellerstein scheduled a hearing on the matter for September 8 and said he would allow the government to submit additional evidence to justify the withholding of the pictures before he renders a decision. But he also signaled that he may ultimately order the Department of Defense to release the abuse photographs, stating in a 21-page ruling that the government did not submit evidence to back up its 2012 claims that releasing the photographs would endanger national security and the lives of US military personnel.
"The government has failed to submit to this Court evidence supporting the Secretary of Defense's determination that there is a risk of harm," Hellerstein said, "and evidence that the Secretary of Defense considered whether each photograph could be safely released."
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Barack Obama inherited dozens of George W. Bush-era open-records lawsuits pertaining to Bush's post-9/11 interrogation program involving CIA prisoners and the treatment of detainees by US military personnel at prisons in Iraq and Afghanistan.
Obama, who signed an executive order — one of his first acts as president — promising to usher in a new era of transparency and open government, had to decide whether his administration would fight various federal court rulings ordering the release of highly sensitive documents that laid bare the brutality of the treatment of detainees.
He acted on that pledge. In April of that year, Obama released memos written after 9/11 by a young Justice Department attorney named John Yoo authorizing the CIA to subject high-value detainees to 10 so-called "enhanced interrogation techniques," a euphemism for torture. (This was also in response to the ACLU lawsuit.) Obama explained that withholding the documents "would only serve to deny facts that have been in the public domain for some time." The release of the memos was sharply criticized by Republican lawmakers and former CIA officials who asserted that the release would endanger the lives of US soldiers and other US personnel working abroad.
But it did not result in a single reported threat to US interests or military personnel.
One soldier attached a copy of the photograph in an email and wrote, 'I can't see how they think this is anything but fun.'
About a month later, Obama indicated he would not defy a March 2009 ruling by the 2nd Circuit Court of Appeals that upheld a lower court's decision ordering the Bush administration to release the 2,100 photographs to the ACLU Obama said he made the decision because the White House did not believe it could convince the Supreme Court to review the case.
The new president was pilloried by Republicans and right-wing media outlets, along with and by former Vice President Dick Cheney and his daughter Liz, who accused Obama of "siding" with "terrorists" and questioned whether he "really cared" about US soldiers.
Responding to the criticism, Obama said the photographs "are not particularly sensational."
But last week, VICE News obtained documents from the Department of Defense that indicates the photographs may be far more troubling than the administration let on.
The documents [pdf below] state that the photographs were from 203 closed criminal investigations into detainee abuse in Afghanistan and Iraq. The Defense Department set up a task force to evaluate the images in May 2009, and the photographs were broken into three different categories:
Category A: Will require explanation; Egregious, iconic, dramatic.
Category B: Likely to require explanation; injury or humiliation.
Category C: May require explanation; injury without context.
The documents VICE News obtained go on to explain how the US government intended to "mitigate the threat to security and political stability" and the response to the release of the photographs in 2009, which included apologies to "regional partners" and "audiences who find images humiliating."
Still, Obama was pressured by Bush-era holdovers at the Defense Department to withhold the photographs and, going against his own promises of transparency — "The government should not keep information confidential… because of speculative or abstract fears," he'd said months earlier — he reversed his stance.
"The publication of these photos would not add any additional benefit to our understanding of what was carried out in the past by a small number of individuals," Obama told reporters in explaining his flip-flop. "The most direct consequence of releasing them, I believe, would be to further inflame anti-American opinion and to put our troops in greater danger."
The administration appealed the case to the Supreme Court. At the same time, key Obama officials worked with senators Joseph Lieberman and Lindsey Graham, two vocal critics of the President's decision to release the images, on legislation that would ultimately grant the Secretary of Defense the authority to conceal the photographs on national security grounds via a certification waiver that has to be renewed every three years.
After both houses of Congress passed the legislation in late 2009 and Obama signed into law, the administration withdrew its Supreme Court petition. But not before then-Secretary of Defense Robert Gates signed a certification waiver concluding that the photographs are "protected documents" and "exempt from mandatory disclosure under FOIA."
The "public disclosure of these photographs would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States," Gates's certification said.
Three years later, then-Secretary of Defense Leon Panetta renewed the certification, the integrity of which Judge Hellerstein is now calling into question. Government attorneys contended that Hellerstein did not have the authority to review Panetta's decision. But the judge rejected the government's argument.
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Hellerstein said Panetta's recertification amounts to a blanket waiver exempting all detainee abuse photographs from disclosure. But the legislation passed by Congress calls for each individual photograph to first be reviewed by the Secretary of Defense, which Panetta apparently did not do, Hellerstein said.
"Three years is a long time in war, the news cycle, and the international debate over how to respond to terrorism," Hellerstein said. "As applied to this case, the government must show why, on November 9, 2012, the release of pictures taken years earlier would continue to 'endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States.'"
He added: "Even if some of the photographs could prompt a backlash that would harm Americans, it may be the case that the innocuous documents could be disclosed without endangering the citizens, armed forces, or employees of the United States. Considering the photographs individually, rather than collectively, may allow for more photographs to be released, furthering FOIA's 'policy of full disclosure.'"
Although there are more than 2,000 abuse photographs that could potentially be released, the ACLU's lawsuit against the Department of Defense centered around 44 pictures.
VICE News reviewed Army criminal investigative reports that probed detainee abuse allegations and contained descriptions of some of the controversial images that lawmakers and Obama administration officials fear could endanger national security and the lives of military personnel if released. [The Army reports and descriptions of the photographs can be found here: Part 1, Part 2, Part 3, Part 4, Part 5.]
In one photograph, three soldiers at the St. Mere Forward Operating Base in Iraq posed with three Iraqi detainees who were "zip-tied to bars in a stress position, fully clothed, with hoods over their heads." Army investigators also found that a soldier "possessed a photograph of himself pointing what appears to be a pistol at an unidentified [prisoner], whose hands were tied and his head covered laying down."
Another photograph captured the corpse of a dead Afghan national who was shot to death by US soldiers in January 2004. The Afghani was believed to be responsible for a rocket-propelled grenade attack on Fire Base Tycze that seriously wounded three US soldiers, according to the Army criminal probe.
More than a dozen other photographs, Army criminal investigative reports say, show US Army soldiers in Afghanistan pointing assault rifles and pistols at the heads and backs of hooded and bound detainees, and soldiers kicking and punching detainees.
In interviews with Army criminal investigators, the soldiers said they intended to keep the prisoner abuse photographs as "mementos" to recall their deployment in Afghanistan.
Another photograph shows a female soldier holding a broom, she testified to Army investigators in April 2004, "as if I was sticking the end of a broom stick into the rectum of a restrained detainee." A month earlier, this soldier sent an email to an undisclosed number of soldiers in her unit. She said she discovered that the photograph she appeared in had been widely disseminated and that she was under investigation.
"You guys have a picture of me holding a broom near a detainee," she wrote in the email. "I don't have a copy of this picture anywhere… but some Marine got a hold of it and now I'm being investigated for detainee abuse. I guess one of you share (sic) the photos with the Marines… but either way, they have a copy of that picture."
"Anyway, this email serves two purposes," she continued. "First, I know that at least one more of you guys is in the picture, but I cannot remember who. If I'm being investigated… I'm sure that the other individuals in this picture will be investigated as well, so heads up! Secondly, can I please have a copy of this picture ASAP!!! I can't stress how badly I need this picture so I can show people that it was just a posed shot, and that I wasn't physically beating anyone with a broom."
One soldier replied to the email by attaching a copy of the photograph and wrote, "I can't see how they think this is anything but fun."
Army investigators concluded that eight soldiers, whose identities were redacted, "committed the offense of dereliction of duty, when as guards detailed to secure and protect detainees, they willfully failed to perform their duties with no reasonable or just excuse, by jokingly pointing weapons at the bound detainees, and exposed photographs of this unwarranted activity."
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A US official told VICE News that government attorneys would likely argue next week that the photographs could "lead to a violent reaction" by Islamic State insurgents, who have reportedly subjected American captives to CIA interrogation techniques such as waterboarding, a detailed description of which is contained in the memos Obama released in 2009.
The fear, the US official said, is that the "terrorists will parade their victims around" in the same manner US soldiers did with the detainees in their custody. In that regard, the US official said, the photographs become nothing more than a propaganda tool for terrorists.
Richard Barrett, a former United Nations counterterrorism official and UK intelligence officer, agreed.
"The Abu Ghraib [pictures] and similar photographs certainly incited anti-US sentiment, and all such things play to the extremist narrative and increase the sense of disrespect and humiliation," said Barrett, now a senior vice president at private security firm The Soufan Group.
But Jameel Jaffer, the ACLU's deputy legal director, said caving into terrorist organizations like the Islamic State is misguided.
"You can't give terrorist organizations veto power over the disclosure of information about the conduct of the US government," Jaffer told VICE News. "The argument that the government is making is that a disclosure of government misconduct will incite violence. The government could make the same argument about stories on the front pages of every major newspaper. Where does it end?"
Follow Jason Leopold on Twitter: @JasonLeopold