The trickle of scandalous Abu Ghraib photos that surfaced in 2004 during the United States occupation of Iraq could soon become a flood after a federal judge on Friday ordered the government to release thousands of photographs of American soldiers abusing detainees at facilities in Iraq and Afghanistan.
US District Court Judge Alvin Hellerstein's three-page order said the government failed to meet a deadline to certify that each of the 2,100 photographs in question would incite violence and "endanger Americans" if publicly released. But he gave it 60 days to appeal his decision. The government can continue to withhold the photographs in the meanwhile.
A Justice Department spokesperson did not respond to requests for comment.
The decision on the American Civil Liberties Union's decade-long Freedom of Information Act (FOIA) lawsuit is a major victory that arrives, fittingly, at the end of Sunshine Week, an annual initiative that promotes transparency and open government.
"The photos are crucial to the public record," Jameel Jaffer, the ACLU's deputy legal director, told VICE News. "They're the best evidence of what took place in the military's detention centers, and their disclosure would help the public better understand the implications of some of the Bush administration's policies."
Jaffer characterized the Obama administration's rationale for suppressing the photos as both illegitimate and dangerous.
"To allow the government to suppress any image that might provoke someone, somewhere, to violence would be to give the government sweeping power to suppress evidence of its own agents' misconduct," he noted. "Giving the government that kind of censorial power would have implications far beyond this specific context."
President Barack Obama pledged in 2009 that he would not defy a ruling by the 2nd Circuit Court of Appeals that upheld a lower court's decision ordering the Bush administration to release the photographs to the ACLU. He said he made the decision because the White House did not believe that it could convince the Supreme Court to review the case. Republicans and right-wing pundits, including former Vice President Dick Cheney and his daughter Liz, pilloried the new president, accusing him of siding with terrorists and questioning whether he really cared about US soldiers.
The White House worked with Congress to secretly change the FOIA law to allow the Secretary of Defense to withhold the images on national security grounds via a certification waiver that has to be renewed every three years. But Hellerstein suggested last year that the passage of time since the photos were taken removed the national security argument.
In his ruling on Friday, Hellerstein said a certification waiver renewed in 2012 by then-Secretary of Defense Leon Panetta blocking all of the photographs from disclosure was "deficient" because "it was not sufficiently individualized and it did not establish the Secretary's own basis for concluding that disclosure would endanger Americans," as required by the changes to the FOIA passed by Congress in 2009.
"The Government's refusal to issue individual certifications means that the 2012 Certification remains invalid and therefore cannot exempt the Government from responding to [the ACLU's] FOIA requests," Hellerstein wrote in his order.
VICE News reviewed Army criminal investigative reports that probed detainee abuse allegations and contained descriptions of some of the controversial images. 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 shows a female soldier holding a broom, as she later 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 troops in her unit saying that she had discovered that the photograph 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. "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."
In interviews with Army criminal investigators, the soldiers said that they intended to keep the prisoner abuse photographs as "mementos" to recall their deployment in Afghanistan.
Army investigators concluded that eight soldiers, all of 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."
In 2009, Obama remarked that the photographs at issue "are not particularly sensational."
"It's therefore my belief that 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," the president said.
But VICE News obtained documents from the Department of Defense in response to a FOIA request that indicate the photographs may be far more troubling than the administration had let on.
The documents [PDF below] state that the photographs were from 203 closed criminal investigations into detainee abuse that occurred 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 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."
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