ACLU Files Lawsuit to Require Department of Defense to Comply With FOIA Request on Human Costs of War

FOR IMMEDIATE RELEASE
CONTACT: media@aclu.org

NEW YORK - The American Civil Liberties Union is filing a lawsuit today against the Department of Defense (DoD), demanding that it comply with a Freedom of Information Act request to release documents regarding civilians killed by coalition forces in Iraq and Afghanistan.

"There can be no more important decision in a democracy than whether to go to war, yet this administration has gone to unprecedented lengths to control the information that the American people need to make informed judgments," said Ben Wizner, an attorney in ACLU's National Security Project. "The government’s refusal to comply with the ACLU’s FOIA request unlawfully obstructs the public’s right to know the true costs of our nation’s wars."

The ACLU sought records from several components of DoD more than a year ago, but has received documents only from the Department of the Army. The Army has provided thousands of pages of documents chronicling civilian casualties in Iraq and Afghanistan.  Those documents include new evidence of coalition forces’ involvement in civilian casualties in Iraq and Afghanistan. The nearly 10,000 pages that the ACLU is making public today include courts martial proceedings and military investigations regarding the possible wrongful death of civilians. The documents released by the ACLU today are available online in a searchable database at
www.aclu.org/natsec/foia/log2.html

"The secrecy that surrounds the human costs of these wars keeps Americans from knowing what is being done in our name," said Nasrina Bargzie, an attorney in ACLU's National Security Project. "When the exigencies of war and the Pentagon’s policies interfere with the free flow of information, we must rely on our own government’s documents and records to help Americans make informed decisions." 

Since U.S. troops first set foot in Afghanistan in 2001, the Defense Department has gone to unprecedented lengths to control and suppress information about the human costs of war. 

The ACLU pointed out that during both the wars in Afghanistan and Iraq, the Defense Department has instituted numerous policies designed to control information about the human costs of war. These policies include:

• Banning photographers on U.S. military bases from covering the arrival of caskets containing the remains of U.S. soldiers killed overseas;
• Paying Iraqi journalists to write positive accounts of the U.S. war effort;
• Inviting U.S. journalists to "embed" with military units but requiring them to submit their stories for pre-publication review;
• Erasing journalists' footage of civilian deaths in Afghanistan; and
• Refusing to disclose statistics on civilian casualties.

The files made public today cast further light on the killings of Iraqi and Afghan civilians in the conflict zones.

One file describes the court martial proceeding of a U.S. soldier who shot an Iraqi man at close range in the head.  The Iraqi man had been taken prisoner after a battle.  Prior to the shooting, the solider had told another soldier that he wanted to shoot the prisoner.  The other soldier told him not to, but minutes later heard the shot.  After hearing testimony from many of the soldiers involved in the incident, an Army Investigating Officer recommended that a general courts martial be convened and noted:

"One issue that was highlighted during the hearing was the testifying Soldier’s general lack of understanding, knowledge, and training on the treatment of enemy prisoners, Rules of Engagement (ROE), and use of force.  Although, most Soldiers testified that they received some prisoner handling training prior to deployment in either a classroom briefing setting or a classroom briefing followed by hands on training, the majority of the Soldiers who testified seem to be uncomfortable on how they were to search and then secure enemy prisoners . . . .  I do not believe any one soldier could articulate the same understanding of the ROE and use of force guidance.  I recommend that additionally [sic] training be conducted for both units on prisoner handling, ROE, and use of force . . . .   

The soldier was tried by court martial and acquitted by a jury of officers and enlisted men. 

Another file describes an investigation of the killing of two Afghan men that was prompted by a report in the New York Times. U.S. soldiers allegedly shot and killed two fleeing villagers.  While noting that the investigators had declined to exhume the bodies or obtain a copy of the Afghan police report on the incident, the investigation concluded that there was "insufficient evidence to prove if [four Special Forces soldiers] committed the offense of Murder." 

Yet another file describes an investigation of a riot at a U.S. interment facility at Camp Bucca, Iraq, evidently related to claims that U.S. personnel had defaced the Qur’an.  At least four Iraqi prisoners were shot and killed by Coalition Forces during the disturbance.

One of the few files in which an investigation recommended disciplinary action involved the death of a six-month old child who died in a traffic accident.  The file determined that the U.S. driver should be charged with negligent homicide and reckless endangerment.

The lawsuit was filed in United States District Court for the District of Columbia. Attorneys on the FOIA project are Wizner, Bargzie, and Jameel Jaffer of the national ACLU, and Art Spitzer of the ACLU of the National Capital Area.

For more information on the ACLU's efforts to obtain information on the human costs of war in Iraq and Afghanistan go to
www.aclu.org/civiliancasualties

In a separate project, the ACLU filed a FOIA request in October 2003 for records concerning the abuse of prisoners held by U.S. forces in Iraq, Afghanistan, and Guantánamo Bay. To date, that request has resulted in the release of more than 100,000 pages, all of which are available online at: www.aclu.org/torturefoia. Litigation regarding that FOIA request is ongoing.