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After nearly five years of fighting between the federal government and the American Civil Liberties Union over images of torture at Iraq's Abu Ghraib prison, a federal appeals court ruled today that the photos must be made available to the public.
The U.S. Court of Appeals in Manhattan (2nd Cir.) affirmed a 2006 district court order that dismissed the government's arguments that privacy rights of the soldiers and detainees in the images would be violated -- noting the redactions in the form of black bars over the subjects' faces -- and agreed that any potential damage caused by the release of the photos was "far too speculative" to justify their withholding.
The Department of Defense had initially only argued the privacy implications warranted withholding the 29 images under the Freedom of Information Act. Months after oral arguments, the defendants asserted a second rationale for non-disclosure -- essentially that the images were so incendiary that the government "reasonably believed" their release could lead to endangerment of "the life or safety of any individual."
Both the district court and the appeals court noted the "eleventh-hour" nature of the argument in dismissing it, though the appellate court spent some time discussing the "any individual" language and whether the facts showed a reasonable expectation of endangerment. Without identifying "at least one individual with reasonable specificity" who might be endangered, the Second Circuit said exempting records from release under this provision of FOIA -- Exemption 7(F) -- was simply not justified.
It was October 2003 when the ACLU first requested the images now infamous for uncovering abuses that lead to multiple charges against soldiers which resulted in courts martial, demotions, dishonorable discharges and prison sentences. When the government argued that FOIA exemptions applied, allowing it to withhold the photos, the ACLU sued and won release of most of the images in the U.S. District Court in Manhattan in 2005. In the meantime, many photos were leaked to the media, including CBS, which showed some of the images in the spring of 2004. The Reporters Committee wrote friend-of-the-court briefs at both the district and appellate courts.
But even though photos had made their way into the public sphere, it was not pointless to continue fighting the lawsuit -- there was no way to know whether these were the only images that existed unless the government, conducting investigations and maintaining files, was the one to say so. Further, the actions of these soldiers -- and actions of any soldiers -- were all conducted in the name of Americans who have the right to demand from the government information about the acts it conducts in their name.
When the Defense Department came back and said the photos would invade the privacy of the soldiers and detainees pictured within them, the ACLU said fine -- mask their identifying features; no need to cause more embarrassment or harm to the individual folks who will (hopefully) appropriately be disciplined. But when the Defense Department came back a second time to essentially concede that what was contained in the photos was so bad that Americans should fear retaliation by their very release, that was absolutely offensive.
It's the public's job to act as the watchdog on government. And especially when government actors are engaging in conduct that violates the law -- or here, even basic human decency -- the public has an absolute right and duty to see what it is the government is doing in its name. Hiding behind a law that is designed to provide the public with oversight in most circumstances was unacceptable and the courts quite easily agreed the government was in the wrong.
It's a shame it took five years of tying this up in court to see that.