Senate Approves Bill Giving Defense Department Authority To Exempt Photos From Freedom Of Information Act
WASHINGTON – After the Senate today passed a Homeland Security appropriations bill with an amendment that would grant the Department of Defense (DOD) the authority to continue suppressing photos of prisoner abuse, the American Civil Liberties Union sent a letter to Secretary Robert Gates urging him not to exercise the authority to suppress the photos. The amendment, which would allow the DOD to exempt photos from the Freedom Of Information Act (FOIA), is aimed at photos ordered released by a federal appeals court as part of an ACLU FOIA lawsuit for photos and other records related to detainee abuse in U.S. custody overseas, although it would apply to other photos in government custody as well. The bill will now head to President Obama's desk for signature.
The ACLU letter states that the photos would show the pervasiveness of detainee abuse and would shed light on the connection between that abuse and the decisions of high-level Bush administration officials. According to the letter, the photos "are of critical relevance to an ongoing national debate about accountability."
The following can be attributed to Jameel Jaffer, Director of the ACLU National Security Project:
"We are deeply disappointed that Congress has voted to give the Defense Department the authority to hide evidence of its own misconduct. If President Obama signs this bill into law, the Secretary of Defense should not invoke his authority to suppress the photos. Instead, Secretary Gates should be guided by the importance of transparency to the democratic process, the extraordinary importance of these photos to the ongoing debate about the treatment of prisoners and the likelihood that the suppression of these photos would ultimately be far more damaging to national security than their disclosure. The last administration's decision to endorse torture undermined the United States' moral authority and compromised its security. The failure of the current administration to fully confront the abuses of the last administration will only compound these harms."
Another provision contained in the appropriations bill allows the transfer of detainees from Guantánamo Bay to the U.S. for prosecution, though not for any other reason.
The following can be attributed to Christopher Anders, ACLU Senior Legislative Counsel:
"Congress should not be passing legislation making it more difficult for President Obama to keep his commitment to closing Guantánamo, but it is a step in the right direction that the legislation allows for transfer of detainees for prosecution in the U.S. Continuing to hold detainees without charge or trial indefinitely flies in the face of our ingrained values of justice and due process. Our federal courts are perfectly capable of providing justice, security and the protection of fundamental rights, and we should use them to finally achieve real justice in cases where evidence of terrorism crimes exists."
The full text of the ACLU's letter to Secretary of Defense Gates is below and available online at: www.aclu.org/safefree/torture/41309res20091020.html
More information about the ACLU's FOIA litigation is at: www.aclu.org/accountability
October 20, 2009
Robert M. Gates
Secretary of Defense
U.S. Department of Defense
1000 Defense Pentagon
Washington, DC 20301-1000
Dear Secretary Gates,
The American Civil Liberties Union has been litigating since 2004 for the release of photographs depicting the abuse and torture of detainees in American custody. Today, Congress passed a law authorizing you to withhold such images of governmental misconduct if you certify that release would endanger U.S. citizens, troops, or employees. We urge you not to exercise that discretion in this case.
As you know, images of detainee abuse have been withheld until now under a law-enforcement exception to the Freedom of Information Act ("FOIA") on the grounds that their disclosure could provoke violence against U.S. troops and others in Afghanistan and Iraq. Two federal courts have now considered and rejected that argument, finding instead that there is a "significant public interest in the disclosure of these photographs," and that the FOIA exception relied upon by the government was never intended to serve as "an all-purpose damper on global controversy."
Congress has now passed a law, however, that authorizes you to withhold photographs relating to "to the treatment of individuals engaged, captured, or detained after September 11, 2001" by U.S. troops. Respectfully, you should not invoke the legislation in this case. The photographs at issue depict wide-ranging governmental mistreatment from detention facilities throughout Afghanistan and Iraq. The pervasiveness of the abuse undermines the official assertion that abuse was aberrational, and the photos' release would shed light on the connection between the abuse and the decisions of high-level officials. The photos are also a crucial part of the historical record and are of critical relevance to an ongoing national debate about accountability. Their release would allow the public to understand better what took place in the military's detention centers, and why. They might show patterns that have until now gone unnoticed. They would surely convey, better than mere text ever could, the cruelty of such practices as stress positions, hooding, and mock executions.
The U.S. district judge who first ordered release of these photographs explained their importance in this way:
The interest at stake arises from pictures of flagrantly improper conduct by American soldiers—forcing prisoners under their charge to pose in a manner that compromised their humanity and dignity. . . . [T]he pictures are the best evidence of what happened, better than words, which might fail to describe, or summaries, which might err in their attempt to generalize and abbreviate. Publication of the photographs is central to the purposes of FOIA because they initiate debate, not only about the improper and unlawful conduct of American soldiers, "rogue" soldiers, as they have been characterized, but also about other important questions as well—for example, the command structure that failed to exercise discipline over the troops, and the persons in that command structure whose failures in exercising supervision may make them culpable along with the soldiers who were court-martialed for perpetrating the wrongs; the poor training that did not create patterns of proper behavior and that failed to teach or distinguish between conduct that was proper and improper; the regulations and orders that governed the conduct of military forces engaged in guarding prisoners; the treatment of prisoners in other areas and places of detention; and other related questions.
Those favoring suppression of the images of detainee abuse and torture have stated their concerns in the language of national security, but no democracy has ever been made stronger by concealing evidence of its wrongdoing. The prior administration's decision to endorse torture undermined the United States' moral authority and compromised its security. The failure of the country's current leadership to fully confront the abuses of the prior administration—a failure embodied by the suppression legislation at issue now—will only compound these harms.
For these reasons, you should not invoke your new and discretionary authority to suppress images of abuse. If you choose to do so, however, we request that you carefully consider each photograph individually as required by subsection (d)(1) of the new law, and that, with respect to each photograph you withhold, you provide (1) a detailed textual description of the photograph, (2) a cross-reference to the public files that the government has already claimed describe the image, and (3) a detailed explanation of the basis for the withholding of the photograph. The government has previously asserted that disclosing these photographs poses risks in part because it is a "particularly critical time" in Iraq, Afghanistan, and Pakistan. We accordingly ask that you review any decision to withhold any photographs every ninety days to account for changing circumstances.
Thank you for your consideration. We would welcome the opportunity to meet with you to discuss the issues raised above.
Alexander A. Abdo
 We do not waive any legal challenges we might raise to the legislation, to your invocation of it, or to its application in this case.
 We request this information and reevaluation with respect to the 21 responsive images initially identified, the 23 images identified as responsive on June 29, 2006, and the "substantial number" of additional responsive images acknowledged to exist on May 28, 2009.