A federal court of appeals this week affirmed that 21 photographs depicting abusive treatment of detainees by U.S. soldiers in Iraq and Afghanistan must be disclosed under the Freedom of Information Act.
“The public interest in disclosure of these photographs is strong,” the Second Circuit panel concluded in a September 22 ruling (pdf) in favor of the American Civil Liberties Union and other plaintiffs.
The ruling carefully analyzed and rejected several government arguments against disclosure.
Among other things, the government had contended that the photographs should be exempted from disclosure under FOIA exemption 7(F), which protects law enforcement records that “could reasonably be expected to endanger the life or physical safety of any individual.” Government attorneys said that release of the photographs (which were gathered in the course of an Army criminal investigation) could be used to incite violence against U.S. forces, coalition forces or civilians in Iraq or Afghanistan, and should therefore be withheld.
But even if potential incitement is a valid concern, the court said, it would not provide a basis for invoking FOIA exemption 7(F), which was intended to serve as “a shield against specific threats to particular individuals arising out of law enforcement investigations, never as a means of suppressing worldwide political violence.” The exemption is not supposed to be “an all-purpose damper on global controversy.”
In short, the court ruled, the cited FOIA exemption cannot be used as “an ersatz classification system” to bar access to these unclassified photographs.
Nor can the government legitimately invoke the Third and Fourth Geneva Conventions that protect prisoners “against insults and public curiosity.”
“Both of these treaties were designed to prevent the abuse of prisoners,” the court explained. “Neither treaty is intended to curb those who seek information about prisoner abuse in an effort to help deter it.”
At the end of World War II, the court noted, the government itself “widely disseminated photographs of prisoners in Japanese and German prison and concentration camps. These photographs of emaciated prisoners, corpses, and remains of prisoners depicted detainees in states of powerlessness and subjugation similar to those endured by the detainees depicted in the photographs at issue here. Yet the United States championed the use and dissemination of such photographs to hold perpetrators accountable.”
In the same way, “Release of the photographs is likely to further the purposes of the Geneva Conventions by deterring future abuse of prisoners,” the court concluded. A copy of the 52 page ruling in ACLU et al v. Department of Defense et al is posted here.
“These photographs demonstrate that the abuse of prisoners held in U.S. custody abroad was not aberrational and not confined to Abu Ghraib, but the result of policies adopted by high-ranking officials,” said Amrit Singh, the ACLU attorney who argued the case.
“Their release is critical for bringing an end to the administration’s torture policies and for deterring further prisoner abuse,” Ms. Singh said.