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From the Summer 2005 issue of The News Media & The Law, page 29. The government was told by the…

From the Summer 2005 issue of The News Media & The Law, page 29.

The government was told by the federal district court in Manhattan that, no, it could not withhold pictures of the torture of detainees to protect their personal privacy. The public’s interest in knowing about the torture those pictures would show outweighed any privacy intrusion. But the government still did not give out the pictures Judge Alvin Hellerstein had ordered released.

Instead, it asked the judge to consider a new excuse for withholding them. The pictures, the government now said, are so inflammatory, and the conduct depicted so offensive, that disclosure would trigger rioting and violence.

The U.S. government’s conduct at Abu Ghraib was so offensive that the public cannot be allowed to see pictures of it, because the pictures would be incendiary?

That’s right, said the government in papers filed in the American Civil Liberties Union v. Department of Defense lawsuit. Richard B. Myers, Chairman of the Joint Chiefs of Staff, said he looked at the 87 pictures not yet released and believed that even if the government obscured “identifying information and, where applicable, the genitalia of those depicted,” disclosure of those pictures would endanger soldiers, sailors, airmen, Marines, coalition forces, contractors, and Iraqi and Afghanistani civilians, military and police forces and United States interests, personnel and citizens worldwide.

Okay. These pictures attest to horrible conduct. But it is the conduct, not the photographs and videos that show it, that is incendiary. And even if the conduct might provoke insurgents to act up, it does not require rioting and violence. When religious fanatics learn of outrageous conduct the mix can turn volatile. But it would be far more dangerous to the institutions of democracy to keep government conduct secret, especially government misconduct like that we’ve already seen.

In early 2004, military policeman Joseph Darby turned over graphic photographs and images depicting abuse or mistreatment of detainees at Abu Ghraib to the Army Criminal Investigative Command, and they were requested by the ACLU as part of its larger effort to obtain records through the Freedom of Information Act showing how Americans treated detainees during the war on terror.

A handful of the pictures were leaked to reporter Seymour Hersh and to CBS’s “60 Minutes.” The New Yorker magazine published them with an article by Hersh in May 2004. As a direct result of that leak, the military prosecuted personnel involved in torture; changed its policies on torture; and set up task forces to study the parameters of interrogation. Congress entertained measures to stop the abuses.

The leak opened the government’s activities to “the sharp eye of public scrutiny,” a concept the Supreme Court has called the “core purpose” of the federal Freedom of Information Act. That purpose should long ago have triggered the government’s release of the rest of the photographs and videos of Abu Ghraib.

Instead the government went to court to defend against release. It first claimed disclosure would violate detainees’ privacy. Although government has regularly claimed that the Geneva Conventions, the international treaty safeguards for prisoners of war, do not apply to these “enemy combatant” detainees in the war on terrorism, it denied the request for the pictures because of the Geneva Conventions’ prohibition against “subjecting detainees to public curiosity and humiliation.” The privacy exemptions to the FOI Act apply, it said, because this intrusion on personal privacy described in the Geneva Conventions would outweigh any public interest in disclosure, the standard balancing test for these exemptions.

Judge Hellerstein reviewed a sample of photographs and ordered the government to redact identifying details from photographs, readying them for release. At that point the government invoked a new exemption: Disclosure could reasonably be expected to “endanger the life or physical safety of any individual.” By early August the ACLU had objected to that motion and 14 news media groups led by the Reporters Committee had filed a friend-of-the-court brief to challenge the government’s new argument.

If this argument fails, government officials will appeal the denial of the privacy excuse to the U.S. Court of Appeals in New York City (2nd Cir.). They will claim that release of the pictures of torture will intrude upon the victims’ privacy even if the victims cannot be identified.

In earlier privacy exemption cases, the government claimed and judges agreed that requesters had to show government misconduct before the balance of interests would tilt in their favor. The Darby pictures show raw government misconduct the public needs to see.

The leaked photographs caused a public demand for changes in government’s treatment of the detainees. They spawned prosecutions, policy change, task forces, congressional hearings. They brought the public in to play the role in democracy that the Freedom of Information Act should allow it to play.

The truth may hurt, but it’ll set you free.