Legal Papers Unsealed Today in ACLU Quest for Government's Abu Ghraib Torture Images

August 11, 2005 12:00 am

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ACLU Chief Calls Government Secrecy a Further Attempt to Avoid Accountability at Highest Levels

NEW YORK — In legal papers unsealed today, the American Civil Liberties Union urged a federal court to order the release of photographs and videos that depict the abuse and torture of prisoners in U.S. custody at Abu Ghraib prison in Iraq. The ACLU also asked the court to reject the government’s attempt to file some of its legal arguments in secret.

“The ACLU shares everyone’s deep concern about the dangers facing American soldiers in Iraq and elsewhere,” said ACLU Executive Director Anthony D. Romero. “The actions depicted in these photos and videos demonstrate the failure of American leaders who placed our young men and women in compromising situations and are now seeking to blame them for it. The real shame here is that our leaders left our troops out on a limb and now they are hiding behind a veil of rank and government office to avoid accountability.”

Romero noted that until the first photos of detainee abuse at Abu Ghraib were made public in April 2004, the government had consistently denied that any wrongdoing had taken place despite news reports to the contrary. Since then, the ACLU has obtained through a court order more than 60,000 pages of government documents regarding torture and abuse of detainees.

Despite this evidence, the government continues to minimize the extent of the torture and to describe it as the action of a few rogue soldiers. In response, the ACLU has called for an independent counsel with subpoena power to investigate the torture scandal, including the role of senior policymakers, and has filed a separate lawsuit to hold Secretary Rumsfeld and high-ranking military officers accountable.

In a court declaration that was also unsealed today, former U.S. Army Colonel Michael E. Pheneger, a retired military intelligence expert, responded to the government’s “cause-and-effect” argument that release of the images would spark violence abroad. “Our enemies seek to prevent the United States from achieving its objectives in the Middle East,” he said. “They do not need specific provocations to justify their actions.” Noting that the Chairman of the Joint Chiefs of Staff, Gen. Richard B. Myers, has estimated that insurgents average 70 attacks a day, Col. Pheneger added: “The attacks will continue regardless of whether the photos and tapes are released.”

The ACLU is also engaged in an ongoing dispute over the government’s efforts to keep some of its legal documents in the case under seal and to conduct court hearings behind closed doors, including a hearing scheduled for this Monday, August 15. Depending on the court’s ruling on the sealing order during the first part of that hearing, arguments regarding the photos and videos may be opened to the media and the public.

The ACLU will file an additional brief tomorrow responding to the government’s efforts to suppress the photographs and to keep its legal arguments secret. The documents unsealed today are available online at

The government initially objected to the release of the images on the grounds that it would violate the Geneva Conventions rights of the detainees depicted in the images. That concern was addressed by court order on June 1 directing the government to redact any personally identifying characteristics from the images. The ACLU did not object to those redactions.

It is worth noting, the ACLU said, that the government has repeatedly taken the position that the detainees themselves cannot rely on the Geneva Conventions in legal proceedings to challenge their mistreatment by American personnel.

The case arose from a lawsuit filed under the Freedom of Information Act by the ACLU, the Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense and Veterans for Peace. The New York Civil Liberties Union is co-counsel in the case.

The FOIA lawsuit is being handled by Lawrence Lustberg and Megan Lewis of the New Jersey-based law firm Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C. Other attorneys in the case are Amrit Singh, Jameel Jaffer, and Judy Rabinovitz of the ACLU; Arthur N. Eisenberg and Beth Haroules of the NYCLU; and Barbara Olshansky of the Center for Constitutional Rights.

The ACLU’s Motion to Vacate the Protective Order and for Access to Papers Filed by the Government is available online at: /node/35489.

The ACLU’s Memo in Opposition to Defendant’s Supplemental Memo of Law and in Support of Plaintiff’s motion of Partial Summary Judgment is available online at:

The Declaration of Michael E. Pheneger is available online at: /node/35488.

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