American Civil Liberties Union

Declassified Memo Sets Policy for Photographing Detainees; ACLU Fought Attempt to Make Memo "Disappear" From Its Files

NEW YORK - One week after the American Civil Liberties Union moved to quash an unprecedented government grand jury subpoena demanding "any and all copies" of a previously "secret" memorandum, the government today backed down from the fight, asking a judge to withdraw the subpoena and saying that the document in question has been declassified.
 
"This was a legal stand-off with enormous implications for free speech and the public's right to know, and today the government blinked," said ACLU Executive Director Anthony D. Romero.  "The Bush Administration's attempt to suppress information using the grand jury process was truly chilling and is unprecedented in law and in our history as an organization. We could not be more pleased to have turned back the government from its strong-arm tactics, which were clearly aimed at silencing critics – both those from within the government and those outside, such as the ACLU and members of the media."
 
The government today also agreed, and the judge ordered, that related documents in the case be unsealed, including a transcript of court arguments on December 11. 
 
The document at issue, which the government has now said is declassified as of last Friday, is a December 2005 memorandum, marked "Secret," with the subject line: "The Permissibility of Photographing Enemy Prisoners of War and Detainees."  The memorandum concludes that the news media and members of the Public Affairs Office are allowed to photograph detainees "so long as the photography is done in such a manner that cannot be interpreted as holding the EPWs and detainees up to public curiosity."  U.S. soldiers, the memorandum says, are prohibited from photographing detainees and EPWs except as part of their official duties. 
 
Romero noted that the memorandum was issued more than a year after the infamous Abu Ghraib photos came to light.  The documents, he said, "raise the question of whether the guidelines were in place prior to the Abu Ghraib scandal and if not, why it took more than a year after the scandal to issue a policy."
 
Since the Abu Ghraib scandal, the government has strenuously resisted the release of further images.  The ACLU recently appeared in federal court to challenge the government's appeal of an order directing the Defense Department to release 21 photographs depicting abuse of detainees by U.S. forces in Afghanistan and Iraq. To date, more than 100,000 pages of government documents have been released in response to the ACLU's Freedom of Information Act lawsuit. The ACLU has been posting these documents online at: www.aclu.org/torturefoia.
 
In fighting the grand jury subpoena, the ACLU called the designation of the document as "Secret" a striking example of the Bush administration's rampant use of claims of "state secrecy" and overclassification of documents and information to hide its actions.
 
"As we have said all along, the issue was not the content of the document, but the government's unprecedented effort to suppress it," said ACLU Legal Director Steven R. Shapiro.  "Now that the document has been declassified, it should be plain for all to see that it should never have been classified to begin with, and that the grand jury subpoena was overreaching and inappropriate."
 
Romero added: "We saw this from the start as a fight not over a document but over the principle that the government cannot and should not be allowed to intimidate and impede the work of human rights advocates like the ACLU who seek to expose government wrongdoing." 
 
The case is In re Grand Jury Subpoena Served on the ACLU, No. M11-188, filed in the U.S. District Court for the Southern District of New York before presiding Judge Jed S. Rakoff.   The ACLU is represented by Shapiro of the ACLU, Charles S. Sims and Emily Stern of Proskauer Rose LLP and Joshua L. Dratel and Erik B. Levin, of Joshua L. Dratel, P.C., all of New York.
 
Legal documents in the case, including the now declassified secret memorandum, are online at: www.aclu.org/subpoena