ACLU Challenges Latest U.S. Move to Block Release of Detainee Abuse Photos

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A picture obtained by ABC News and released May 19, 2004 shows a man identified as Sgt. Charles Graner posing over the body of detainee Manadel a-Jamadi in Abu Ghraib prison. ABC News/Reuters

The American Civil Liberties Union (ACLU) filed a brief Friday evening challenging the U.S. government’s assertion last month that releasing thousands of classified images depicting the U.S. military’s abuse of prisoners in Iraq and Afghanistan would threaten national security.

While the disturbing images from Abu Ghraib -- including of U.S. personnel giving the thumbs-up sign amid piles of naked bodies and detainees being led on leashes -- have been seared into the American consciousness, some of the photographs being sought by the ACLU are said to be possibly even more disturbing. One of the classified photos reportedly shows a female soldier pretending to sodomize a naked prisoner with a broom, while others allegedly depict U.S. troops pointing guns at detainees’ heads.

The brief is part of a legal battle that started with the ACLU filing a Freedom of Information Act (FOIA) request for the pictures’ release in 2003 and suing the government in 2004 after it refused to comply.

The brief begins: “Even in an age which information, whether photographs or cartoon images, the written word or even satirical cinema, may give rise to horrific terroristic reaction,” the FOIA provides “legal standards that if correctly applied, stand as a bulwark against excessive government secrecy, thereby assuring the informed citizenry that is so critical to the survival of our democracy.”

In 2009, the legal standoff led to a debate in Congress that culminated in the passage of the Protected National Security Documents Act (PNSDA) the same year. The statute allows the secretary of defense to keep a photograph concealed for up to three years if its release would be seen as endangering American lives.

Former secretaries of defense Robert Gates and Leon Panetta opted to use this power in 2009 and 2012, respectively, saying the release of the more than 2,100 images sought by the ACLU would pose a security risk.

In August 2014, however, U.S. District Court Judge Alvin Hellerstein ruled against the lump concealment, saying that if the government wanted to keep the images classified for the remainder of the three-year allotment, it would have to review “each and every photograph, individually and in relation to the others,” and demonstrate why each release would endanger Americans.

December 19 was the last opportunity for the government to give a picture-by-picture explanation to the court for withholding the images. Instead, the Department of Defense argued that the original evaluation process, which led to Panetta’s blanket assertion in 2012 that the images were unfit for declassification, was sufficient.

The government explained that Megan M. Weis, associate deputy general counsel, had reviewed all of the photographs and placed them into three categories based on content.

Weis “considered the extent of the injury suffered, if any, by the detainee depicted in the photograph; whether the photograph depicted United States service members; and the location of the detainee photograph,” the government memorandum from December reads.

It explains that Weis then selected between five and 10 photographs from each of the three categories and presented the representative sample to three senior military officials: General John R. Allen, commander of U.S. Forces in Afghanistan, General James N. Mattis, commander of U.S. Central Command, and General Martin Dempsey, chairman of the Joint Chiefs of Staff. All three recommended that Panetta certify all of the photographs classified.

The government maintained that all of the images had been reviewed by Weis and that the “three recommendations expressly relied upon by Secretary Panetta...provide more than an ample basis for his conclusion.”

The ACLU argues that the government failed to explain why each image threatened national security and therefore should remain classified, as mandated by the court.

During the congressional debate over the pictures, and afterward, the images have been labeled everything from “relatively innocuous” to “even more gruesome than the last.” The ACLU contends that had a proper review been conducted, the innocuous documents could be disclosed without endangering Americans.

“Congress did not create an exemption to FOIA for inconvenient truths,” the ACLU writes, “only for photographs that would actually endanger Americans.”

The ACLU also takes issue with the government’s claim that release of the images, even the most gruesome, would incite violence against Americans. It argues that not every disclosure of U.S. misconduct triggers a backlash, as evidenced by the fact that many warned that release of the heavily redacted, 500-page executive summary of the Senate Intelligence Committee's 6,400-page report on CIA “torture” would pose a risk to Americans around the world, but no uprisings occurred.

The group adds that it is unreasonable to withhold the images based on the possibility of retaliation because “one need look no further than the recent tragedy in Paris to see that some people react violently and irrationally to even cartoons.”

A hearing is set for January 20 in a Manhattan federal court, when Hellerstein will review the submissions and make a decision about the release of the images. Even if Hellerstein rules in favor of the ACLU, however, the government could appeal and the prolonged legal battle over the images would continue.