The government’s authentication of the Abu Ghraib abuse photos coincided with the announcement that more images exist and should be kept secret.
From the Spring 2006 issue of The News Media & The Law, page 16.
By Corinna Zarek
Giving up its nearly two-year battle over release of the now legendary “Darby photos,” the government in April authenticated previously published images depicting prisoner abuse at Iraq’s Abu Ghraib prison.
But then it announced the existence of 29 more photos and two videos that it refuses to release, citing the same privacy and security reasons it used in withholding the original images, arguably in violation of the court’s order on the matter.
The American Civil Liberties Union sued for release of the first batch of images after the Department of Defense, citing exemptions to the Freedom of Information Act, refused to disclose the images. A federal district court agreed in September that the images must be public. The Pentagon appealed but decided abruptly in March to withdraw its appeal and comply with the lower court order, and agreeing to release any additional images under a second court order.
“The government indicated it was willing to authenticate what was in the public domain and give us anything that wasn’t in the public domain. From our perspective, it’s a victory for the public’s right to know,” said Amrit Singh, an ACLU attorney. “The government made it clear that it was willing to withdraw the appeal while letting Judge Hellerstein’s decision stand with respect to the Darby images.”
Judge Alvin K. Hellerstein, of the U.S. District Court in Manhattan, ordered release of the images, calling the ACLU’s reasons for requesting the images “the very purposes that FOIA is intended to advance.”
The government appealed to the U.S. Court of Appeals in Manhattan (2nd Cir.), but withdrew its appeal in March, entering into an agreement with the ACLU to let Hellerstein’s order stand to release the Darby images, and, in addition, produce any additional images related to prisoner abuse at Abu Ghraib. The ACLU argues that the government’s refusal to release the additional 31 images the government refuses to release violates the second court order. Singh said the parties have until early June to file documents with the court, at which time she expects Hellerstein to rule on these images.
The government’s claims that the second batch of images are exempt from FOIA for the same reasons — privacy issues and safety issues related to law enforcement investigations — are in dispute in the district court and Singh says they’re prepared to fight for release of those images.
“It remains to be seen whether the government intends to continue to resist public scrutiny or whether it will acknowledge that Judge Hellerstein’s opinion binds it to turn over all images related to detainee abuse,” Singh said.
The Darby images — named for the military policeman who first turned them in to his superiors — were leaked to the media in April 2004. Some photos were published at that time, but the entire collection of the 74 photos and three videos had not been published in their entirety until the Internet news site Salon made them available in February 2006, Salon Washington Bureau Chief Walter Shapiro said. Salon spent weeks vetting the photos to ensure their authenticity before publication, going through all the images, cross-checking them with other information reporters had gathered and finally determining that they were legitimate.
“We did an amazing Web archive,” Shapiro said. “We did that because we really believe that it was important for all of these photos to be in one place — not for prurient interests, but so that people trying to track back to what happened at Abu Ghraib and why would have one place to go where everything that is publicly known about Abu Ghraib appears.”
Both the parties to the case and the district court noted Salon’s role in making the images available, using the publication’s archive as its benchmark in release of the images.
Shapiro pointed out the dual ways that his publication and the ACLU and other groups acted to make the images available, but with slightly different routes to get there.
“This is an example of the symbiotic relationship between human rights groups and free press groups doing what they believe is right under the legal system and publications like Salon doing what it believes is good journalism,” he said. “As far as we were concerned — while it was nice that government authenticated the photos — at that point, we had spent three to four weeks with about 10 people working full time on Abu Ghraib, and we had no issues whatsoever with their authenticity.”
Visual images can provide much stronger evidence than written documents, and Ralph Begleiter, a University of Delaware professor, firmly believed that in his recent quest for images of war casualties returning to the U.S. In April 2005, Beigleiter won a FOIA lawsuit for hundreds of images depicting flag-draped coffins that he pursued because of his strong belief that such images should be part of the public record.
“I believe those photos are every bit as much documents of the most important kind of foreign policy and warfare and should be part of the public record in the same way that the budget of the war is public,” he said. “The images have an incredible power that mere lists of names or mere statistics and number of casualties simply don’t convey; imagery is very powerful in our society.”
Begleiter called the images of the casualties some of the most “vivid,” “poignant,” and “sacred” evidence of war and represent what is being done in the “name of the American people.” He sees his quest for the casualty images as a parallel to the ACLU’s quest for the prisoner abuse images.
“I believe that documents such as these — both the Abu Ghraib pictures and the images of the returned casualties — fall into the category of documenting what is being done in name of the American people. The American people have not only right to know about this, but a responsibility to know.”
The Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense and Veterans for Peace joined the ACLU its suit against the government. The Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief joined by 18 other media organizations, arguing for the important public interest in viewing these images, and discussing the powerful way that images can convey what really occurred.
“In theory, they should be the same,” Shapiro said of the way words and images convey a message. “In reality, photographs and moving pictures have a haunting effect that mere words — unless they are written with literary genius — do not have. . . . In this case, a photograph has a searing effect.”
“In a sense Abu Ghraib has become a symbol here in part because it is the place that comes not only with the accounts of detainees, not only with a few government references to ghost detainees, but comes with a photographic record and that makes a difference. In that sense, it’s what is really important because photographs can be tremendously suggestive.”