Photographs documenting US military abuse of detainees overseas will likely remain secret under a new law passed by Congress.
The action releases the Obama administration from compliance with a federal court order requiring the photographs be make public as part of a Freedom of Information Act lawsuit filed by the American Civil Liberties Union.
The measure was passed Tuesday as an amendment to the homeland security bill. It now goes to the White House for President Obama’s signature.
“We are deeply disappointed that Congress has voted to give the Defense Department the authority to hide evidence of its own misconduct,” said Jameel Jaffer, director of the ACLU’s National Security Project.
A federal appeals court panel in New York had agreed with the ACLU that disclosure of the photos was necessary.
Government lawyers had appealed that decision to the US Supreme Court, arguing that release of the photos would endanger the lives of US forces overseas.
The amendment gives the administration the power to keep all the photos secret. If Defense Secretary Robert Gates decides to exert that power, the appeals court ruling will be rendered moot and there will be no pending controversy for the Supreme Court to decide.
Last week, Solicitor General Elena Kagan asked the high court to hold off deciding whether to take up the FOIA case. She noted that Congress was then considering passing an amendment to the law.
As passed, the amendment creates a new FOIA exemption allowing the government to keep secret any photograph, video, or film of detainees taken from September 11, 2001 until the end of the Bush administration on January 22, 2009.
The amendment empowers the defense secretary to block the public release of any such depictions after certifying that public disclosure “would endanger citizens of the United States, members of the United States armed forces, or employees of the United States government deployed outside the United States.”
The certification would expire after three years, but could be renewed multiple times, under the law.
The detainee photo issue is part of a larger ACLU lawsuit aimed at examining the full scope of US efforts to detain and interrogate individuals. The suit, filed in 2004, has forced disclosure of more than 130,000 classified documents, including memos produced at the Bush Justice Department’s Office of Legal Counsel and a Central Intelligence Agency inspector general’s report.
Despite the other releases, the government continued to object to release of the photos. Last year, a federal appeals court disagreed with the Bush administration’s narrow interpretation of the FOIA and ordered the government to release the photos.
The Obama administration initially said it had no problem making the photos public, but later reversed course and filed an appeal asking the Supreme Court to overturn the appeals court’s release order.
After passage of the amendment on Tuesday, Mr. Jaffer sent a letter to the defense secretary urging him not to exercise his newly-established authority to keep the photos secret.
“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,” Jaffer wrote.
“The prior administration’s decision to endorse torture undermined the United States’ moral authority and compromised its security,” he said. “The failure of the country’s current leadership to fully confront the abuses of the prior administration … will only compound these harms.”
Jaffer says the government has already released information from investigative files related to the pictured detainees. But he says the photos are likely contain information the text documents do not.
“The photographs at issue depict wide-ranging governmental mistreatment from detention facilities throughout Afghanistan and Iraq,” Jaffer’s letter says. “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 letter adds: “They would surely convey, better than mere text ever could, the cruelty of such practices as stress positions, hooding, and mock executions.”
Jaffer asks that even if Gates decides to withhold some of the photos, that he carefully consider each photograph individually before deciding whether to suppress the image or disclose it.
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