Call them Abu Ghraib Redux, or the 87 Photos and Four Videos the Government Doesn’t Want the World to See.
One thing’s for certain: a cadre of taxpayer-funded Pentagon lawyers would prefer to find a sympathetic activist judge willing to rewrite the federal Freedom of Information Act so that the second batch of Abu Ghraib torture images — the so-called “Darby photos,” named for the key whistleblower in the torture scandal, Specialist Joseph M. Darby — never see the light of day.
As this column went to press, a New York federal judge was hearing a rather unique argument from government lawyers: release of the photos and videos “would endanger the safety and lives of individuals, including soldiers and civilians in Iraq, Afghanistan and elsewhere,” the government argued.
The dispute began when the American Civil Liberties Union, along with the Center for Constitutional Rights, filed a FOIA request in October 2003 to make public the photographs and videos of prisoner abuse in Iraq. The Department of Defense’s original argument — that releasing the images would violate the Geneva Convention rights of the detainees by subjecting them to public humiliation — was quickly dismissed by U.S. District Court Judge Alvin Hellerstein, who had to be struck by the irony of the Department of Defense leaning on the same Geneva Convention it scoffed at as it incarcerated detainees in Abu Ghraib.
The ACLU quite reasonably agreed that the Pentagon could black out “identifying characteristics.” Not so fast, said Judge Hellerstein: He ruled that the Department of Defense must explain publicly why it’s concealing each image.
It’s a pretty safe bet that we know why the Department of Defense wishes to conceal the images. An Aug. 17 Editor & Publisher article references a year-old CNN report in which U.S. Defense Secretary Donald Rumsfeld said, “If these are released to the public, obviously it’s going to make matters worse. I mean, I looked at them last night, and they’re hard to believe.’
“The American public needs to understand we’re talking about rape and murder here. We’re not just talking about giving people a humiliating experience,” U.S. Sen. Lindsey Graham, R-S.C., told reporters after Rumsfeld testified before the Senate Armed Services Committee in 2004.
According to E&P, the military later screened some of the images for lawmakers, who said they showed, among other things, attack dogs snarling at cowed prisoners, Iraqi women forced to expose their breasts and naked prisoners forced to have sex with each other.
Bad stuff indeed, quite the public relations black eye for a nation grown quite accustomed to wearing a shiner these days. But are they bad enough to hide from the American public? From the world?
The Pentagon surely thinks so, for at the 11th hour, it unveiled its new tactic: having requested and received an extension from the judge after telling him they needed time to redact the men, women and children believed to be shown in the photographs and videos. They spent the time instead crafting a new motion. Forget the Geneva Convention, the Pentagon argued, now we request a 7(F) exemption from disclosure under the Freedom of Information Act.
Exemption 7(f) allows the government to withhold law enforcement-related information in order to protect the physical safety of individuals. It has never been extended to military guards, and it’s never been used, as far as I know, to withhold the release of information implicating American military personnel in possibly criminal acts.
Professor James T. O’Reilly, one of the foremost FOI experts and author of the treatise on the subject, said that the exemption was created in 1974 amendments to the FOIA to protect police or law enforcement officers by shielding their home addresses. A 1986 expansion was intended to protect the informants and family members of the targeted enforcement officer.
“I was involved in the FOIA discussions at the time, and I have no recollection that any legislator was asked to or had contemplated the global, worldwide protection of millions of unknown persons who might be caught in future violent acts,” O’Reilly said.
The Pentagon’s argument is a timeworn government bromide: Release of the Abu Ghraib material will boost al-Qaida recruitment, destabilize governments in Iraq and Afghanistan and incite riots throughout the Muslim world. It’s the FOIA equivalent of the heckler’s veto, in which the government argues that if the disclosure of government wrongdoing might really make someone angry, it must be withheld.
“The ‘heckler’s veto’ pegs a federal statutory right in FOIA upon what might occur in unknown nations by unknown persons attacking other unknown persons. How amorphous can it get?” O’Reilly asked.
Unfortunately, we may be about to find out.
Charles Davis, co-chair of SPJ’s Freedom of Information Committee, is an associate professor and executive director of the Freedom of Information Center at University of Missouri School of Journalism.
Tagged under: FOI
