NEWS MEDIA UPDATE · SECOND CIRCUIT · Freedom of Information · Nov. 30, 2006
National security interests stop release of detainee photos
Nov. 30, 2006 · Saying their release would threaten national security, a federal judge this week ruled that detainee photographs taken at the U.S. military base in Guantanamo Bay, Cuba, are not subject to the Freedom of Information Act.
Earlier this year, The Associated Press requested photographs identifying past and present detainees, as well as information on each detainee’s weight and height.
“Our belief is that the identification information is incomplete without the pictures,” said Dave Tomlin, AP’s assistant general counsel. “The public does not fully know who is there unless faces are attached to the information.”
The Department of Defense argued that releasing detainee photographs would threaten the U.S. government’s ability to interrogate the detainees.
In accepting the Defense Department’s national security arguments, the court pointed to the concerns set forth in an affidavit of Paul Rester, a department intelligence official. Rester asserted that combining photographs with the previously released names of prisoners would “specifically identify each detainee in a way that a release of names and other biographical information does not.”
Thus, Rester stated that “official public disclosure of such photographs would both increase the risk of retaliation against the detainees and their families and exacerbate the detainees’ fears of reprisal, thus reducing the likelihood that detainees would cooperate in intelligence-gathering efforts.”
The court said these findings by the Department of Defense were sufficient to withhold the pictures under the national security exemption of FOIA.
Despite denying the photograph request, U.S. District Judge Jed S. Rakoff in New York required the department to turn over the height and weight information by Dec. 11.
Attorney David Schulz, who represented AP, is unsure whether the news organization will appeal the case.
The decision is the latest in a series of FOIA disputes between the AP and the Department of Defense over the Guantanamo detainee information.
In a different case, Rakoff had previously ordered the release of names and other identifying information in documents detailing abuse at Guantanamo Bay. The September ruling settled a two-year quest by the AP seeking documents on detainee abuse allegations lodged against Defense Department personnel, as well as documents related to any detainee-on-detainee abuse. Only the address of a single detainee’s wife was withheld.
In January, Rakoff ordered the U.S. to release the names and nationalities of more than 500 detainees held at Guantanamo.
(The Associated Press v. Dep’t of Defense, Media Counsel: David A. Schulz, Levine Sullivan Koch & Schulz LLP, New York) — KO