A coalition of 14 media organizations and public interest groups organized by The Reporters Committee for Freedom of the Press have filed a friend-of-the-court brief in U.S. District Court in New York urging the release of Abu Ghraib prisoner abuse photos.
The coalition, which includes CBS Broadcasting Inc., NBC Universal Inc., and The New York Times Co. , supports a Freedom of Information Act lawsuit the American Civil Liberties Union has had pending the Defense Department since October 2003.
The government argues that the information is protected by Exemption 7(F) of the FOI Act, which protects law enforcement records from disclosure when they “could reasonably be expected to endanger the life or physical safety of any individual.” Citing recent riots in Afghanistan following Newsweek‘s publication of an article about alleged Koran abuse at Guantanamo Bay, later retracted, the government says the official release of Abu Ghraib prison abuse photos could similarly incite violence against military personnel and civilians overseas.
“The government has taken the position in this case that the more outrageously the behavior exhibited by American troops, the less the public has a right to know about it,” said Reporters Committee Executive Director Lucy Dalglish. “Such a stance turns the Freedom of Information Act inside out.”
Exemption 7(F) has never been applied to hide incendiary evidence of government misconduct. Adopting such an interpretation would have dire consequences, the coalition brief argues, by rewarding misconduct with secrecy and “obscuring government accountability at a time when it is most necessary for the public to have full access to the facts.” As a result, the American people would suffer a substantial erosion of meaningful news media coverage about wartime misconduct.
The photos at issue, known as the “Joseph Darby records” after the military policeman who first turned them over to the Army in early 2004, graphically depict detainee abuse at Abu Ghraib prison. A handful of them were leaked to reporter Seymour Hersh and published in the May 10, 2004, edition of The New Yorker magazine. Some also were broadcast by CBS News.
The story and photos made front-page news around the world, sparking international and domestic debate about wartime detainee treatment, interrogation techniques and military accountability.
Hellerstein had earlier ordered the government to prepare the Darby photos for release by redacting any detainees’ identifying features, but last month just hours before the July 23 deadline, the government filed its Exemption 7(F) claim instead of releasing the photos.
Exemption 7(F) has been invoked most often to hide the names of law enforcement agents, witnesses, and informants from criminal defendants and convicts that might hurt them. The government’s novel interpretation should be rejected, the coalition writes, because the public’s ability “to obtain facts about the government’s misconduct through the news media and to hold the government accountable through democratic institutions” depends on it.
Although it is relatively rare for friend-of-the-court briefs to be filed at the trial court level, the novelty of the government’s argument and its consequences for Americans’ access rights prompted the coalition’s formation and opposition.
The media and public interest coalition is represented pro bono by lawyer David Smallman of DLA Piper Rudnick LLP.
The 14 news organizations and companies are The Reporters Committee for Freedom of the Press, Advance Publications Inc., American Society of Newspaper Editors, CBS Broadcasting, Inc., the E.W. Scripps Company, the Hearst Corporation, Investigative Reporters and Editors, Inc., NBC Universal Inc., the Newspaper Association of America, the New York Times Company, the Radio-Television News Directors Association, the Society of Professional Journalists, the Newspaper Guild-CWA, and the Tribune Company.
The friend-of-the-court brief filed Aug. 3 can be found at: www.rcfp.org/news/documents/20050804-amicusbrie.html