Pentagon Wrongfully Withholding Images of Detainee Abuse, ACLU Tells Court

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CONTACT: media@aclu.org

NEW YORK – The American Civil Liberties Union appeared in court today 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.

“In this new climate of renewed checks and balances, the Bush administration should not be allowed to hide the truth, and individual leaders should never be allowed to subvert the law to cover up their misdeeds,” said Anthony D. Romero, ACLU Executive Director. “The ACLU is pursuing this fight on behalf of all Americans to keep our government honest.”

The government is appealing a district court order to release the 21 photographs, once redactions have been made to obscure individually identifying features. The district court issued its ruling after first reviewing the photographs in private chambers. The ACLU, the New York Civil Liberties Union and the Center for Constitutional Rights have led a Freedom of Information Act challenge since 2003 to obtain records related to the treatment and death of detainees held in United States custody abroad, as well as the rendition of detainees to countries known to employ torture.

This is the second time the government has attempted to withhold visual evidence of detainee abuse on the grounds that the public disclosure of such evidence would generate outrage, and would violate U.S. obligations towards detainees under the Geneva Conventions. Earlier this year, the government appealed an order to release 74 photographs and three videotapes of abuse at Abu Ghraib, claiming that releasing the images would result in widespread violence. The government withdrew its first appeal when most of those images were published on Salon.com without causing violence.

Amrit Singh, the ACLU attorney who argued the case before the court today, said the government is attempting to radically expand the exemptions allowed under the Freedom of Information Act for withholding records.

“Under the government’s logic, records that uncover the most egregious government misconduct would be afforded the greatest protection from disclosure under the Freedom of Information Act. That cannot be,” said Singh. “These images shed light not only on the scope of prisoner abuse by U.S. forces, but also on command responsibility for that abuse. The public has a right to examine these images for itself.”

The government agrees that the final ruling on appeal with respect to the 21 images will also apply to other images of prisoner abuse that it is withholding on the same grounds. So far, the government has identified approximately 23 such images of prisoner abuse.

Several organizations and legal experts have filed briefs with the Second Circuit Court of Appeals supporting the release of the abuse images, including 22 professors of the law of armed conflict, the National Security Archives, the New York City Bar Association, the Reporters Committee for Freedom of the Press and more than a dozen media organizations. Some of the briefs note that the United States itself pioneered the use of photographs of prisoners to strengthen international human rights, and images of abuse led to the ratification of the Geneva Conventions.

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 a related case, the ACLU and Human Rights First represent nine men subjected to torture and abuse in Iraq and Afghanistan. That lawsuit charges that then-Defense Secretary Rumsfeld bears direct responsibility for the torture and abuse of detainees. A federal court hearing is scheduled in that case on December 8 in Washington, D.C.. For more information, go to www.aclu.org/rumsfeld.

On November 28, the ACLU will appear at a federal hearing in Richmond, VA in the case of Khaled El-Masri, an innocent German man who was kidnapped by the CIA and transported to a secret site in Afghanistan where he was detained and abused. A district court upheld the CIA’s claim that the case could not proceed without disclosing state secrets. The ACLU appealed the decision, noting that accounts of El-Masri’s abduction have already appeared in news reports around the world and foreign governments have launched their own investigations into the matter. For more information go to www.aclu.org/rendition.

Attorneys in the FOIA case are Lawrence Lustberg and Melanca Clark of the New Jersey-based law firm Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C.; Jameel Jaffer, Singh and Judy Rabinovitz of the ACLU; Arthur Eisenberg and Beth Haroules of the NYCLU; and Bill Goodman and Michael Ratner of the Center for Constitutional Rights.

Legal documents filed in today’s case, including friend-of-the-court briefs, are online at: www.aclu.org/torturefoia/legaldocuments/index.html.