Appeals Court Refuses To Revisit Decision Ordering Defense Department To Release Prisoner Abuse Photos

March 17, 2009

Photos Depict Abuse By U.S. Personnel At Facilities In Afghanistan And Iraq

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

NEW YORK – A federal court rejected a Bush administration request to reconsider a decision that ordered the Department of Defense to release photographs depicting the abuse of detainees by U.S. forces in Iraq and Afghanistan. The U.S. Court of Appeals for the Second Circuit rejected the government's request to have the full appeals court rehear a decision from last September ordering the release of the photos as part of an American Civil Liberties Union lawsuit seeking information on the abuse of prisoners held in U.S. custody overseas.

The Obama administration, which has not taken a position on the litigation, has 90 days to appeal to the Supreme Court if it chooses to challenge the September order.

"This decision is a stinging rejection of the Bush administration's attempt to keep the public in the dark about the widespread abuse of prisoners held in U.S. custody abroad," said ACLU staff attorney Amrit Singh, who argued the case before the court. "These photographs demonstrate that prison abuse was not aberrational and not confined to Abu Ghraib. Release of the photographs would send a powerful message that the new administration intends to make a clean break from the unaccountability of the Bush years."

Since the ACLU's Freedom of Information Act (FOIA) request in 2003, the government has refused to disclose these images by attempting to radically expand the exemptions allowed under the FOIA for withholding records. The government claimed that the public disclosure of such evidence would generate outrage and would violate U.S. obligations towards detainees under the Geneva Conventions.

However, the appeals court in September 2008 rejected the government's attempt to use exemptions to the FOIA as "an all-purpose damper on global controversy" and recognized the "significant public interest in the disclosure of these photographs" in light of government misconduct. The court also recognized that releasing the photographs is likely to prevent "further abuse of prisoners."
 
"This is yet another instance in which the Bush administration used national security as a pretext to suppress information relating to crimes that were endorsed, encouraged or tolerated by government officials," said Jameel Jaffer, Director of the ACLU National Security Project. "The Obama administration should release these photographs now rather than participate in a cover-up of the last administration's crimes." 
 
A copy of a recent ACLU letter to the Department of Defense seeking the release of the photographs is available at: www.aclu.org/safefree/torture/38967res20090310.html

To date, more than 100,000 pages of government documents have been released in response to the ACLU's FOIA lawsuit. They are available online at: www.aclu.org/torturefoia
 
Many of these documents are also compiled and analyzed in "Administration of Torture," a book by Jaffer and Singh. More information is available online at: www.aclu.org/administrationoftorture

In addition to Jaffer and Singh, attorneys on the case are Alexa Kolbi-Molinas and Judy Rabinovitz of the national ACLU; Arthur Eisenberg and Beth Haroules of the New York Civil Liberties Union; Lawrence S. Lustberg and Melanca D. Clark of the New Jersey-based law firm Gibbons P.C.; and Shayana Kadidal and Michael Ratner of the Center for Constitutional Rights.

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