It's pouring rain outside American Civil Liberties Union (ACLU) staff attorney Jameel Jaffer's office on an October afternoon, making the room dark and chilly, and Jaffer holds up a legal document so a visitor can get a better look. In the document, a 23-page affidavit filed on July 28 in the U.S. District Court, Southern District of New York in Manhattan, General Richard B. Myers, chairman of the Joint Chiefs of Staff, explains why releasing additional Abu Ghraib photos through the Freedom of Information Act (FOIA) is a bad idea. Yet there's little to be seen of Myers' argument on the page -- regardless of the lighting in the room.
In fact, whole sections of the affidavit filed in the civil suit, ACLU v. Department of Defense -- and in particular pages 16, 17, and 18 -- are blank except for ghostly, dotted lines and the words “Redacted” and “[SEALED].” Another affidavit, filed in the federal court on the same day and signed by a former State Department deputy assistant secretary, Ronald Schlicher of the Bureau of Near Eastern Affairs, got similar treatment: Chunks of white space and “Redacted” are found on 12 of the 18 pages, and seven pages are completely blank.
The ACLU lawsuit aims to pry a set of photos from Abu Ghraib out of the Defense Department, and the affidavits include much of the government's argument for withholding them from public view. Government lawyers have argued that releasing the additional photos could incite riots in Muslim countries and put U.S. troops in danger. Still, that doesn't explain why the arguments in the suit against releasing the photos can't be seen by the public. “It's a kind of secrecy creep,” says the ACLU's Jaffer. “Not only are the images secret but the reasons for keeping the images that way are also secret -- or were.”
Jaffer and his colleagues, Amrit Singh of the ACLU and Megan Lewis of the New Jersey–based law firm Gibbons, Del Deo, Dolan, Griffinger & Vecchione along with several other lawyers, demanded the release of the briefs sans Wite-Out after they were filed. Judge Alvin K. Hellerstein partly agreed, and the Defense Department refiled the affidavits in expanded form on August 29. The passages that were redacted because they had posed a threat to national security don't seem particularly dangerous. Instead, they run the gamut from the banal to the “embarrassing,” says Jaffer, standing over the affidavits and pointing out the previously deleted sections to a reporter.
In a section of the sealed affidavit in the ACLU suit, General Myers lays out part of the reasoning for withholding the photos, saying, “Our democratic idea of public accountability -- the airing of misdeeds by government officials and employees in order to hold government to the highest standards of conduct -- is an idea that is misunderstood in other parts of the world.” Explains Jaffer, “They're saying: ‘Other people in the world don't understand democratic accountability. We do.' … It's quite galling.”
In another section, State Department official Schlicher explains why photos of detainee abuse shouldn't be released. “The stigma associated with masturbation or public nudity can limit a man's prospects for marriage, limit his prospects for employment, diminish his role in the community, and lead him to being cast out of the family,” he says. “These pictures are offensive to anyone, regardless of his or her religion,” says Khaled Fahmy, an associate professor of modern Middle Eastern history at New York University who served as an expert witness in the suit. “To assume this would be particularly offensive to Muslims is itself offensive.”
Jaffer, a 34-year-old, Harvard Law School–educated Canadian and veteran of suits against the U.S. government (including Doe v. Ashcroft and MCA of Ann Arbor v. Ashcroft, both of which challenge the USA PATRIOT Act), says suppression of the government's case is part of a larger strategy. “The redactions were made for political reasons,” he says. “The government did not want the arguments to be subjected to public scrutiny because many are indefensible generalizations about the Muslim and Arab world. I think the government has adopted this secrecy strategy over the last few years -- in the way officials have dealt with the PATRIOT Act, for instance, and after September 11, when the government rounded up hundreds of immigrants and refused to release even their names.”
Beyond those redactions, however, looms the larger question of whether the photos themselves will be released. Clearly the images -- which along with those first disclosed on 60 Minutes II on April 28, 2004 -- are disturbing. Members of select congressional committees were horrified during slide shows of the images held in a closed-off room on Capitol Hill on May 12, 2004. The photos show grim-faced young Iraqi women baring their breasts, forced sex among detainees, and a prisoner smashing his head against a wall, according to lawmakers who watched the slide shows. Trent Franks, a Republican congressman from Arizona, told an Associated Press reporter he saw a photo of a bloodied prisoner “sodomizing himself” with an object.
In September, Judge Hellerstein allowed for the disclosure of 74 of the 87 photos and three of the four videos requested under FOIA. Yet he says some of the images, mainly those of female detainees, should not be released. “The risk of exposure is too great,” he wrote, explaining that hiding the identity of the female detainees would be tricky and would make the images nearly incomprehensible, and that “the informational value is minimal.” Government lawyers say they will appeal Judge Hellerstein's decision that materials be handed over to the ACLU, and on November 15 they asked for a one-week extension for filing a notice of appeal. An appeal could delay the release of the photos by months or prevent them from being released at all.
General Myers, reflecting the administration line, argues that releasing the photos would “endanger the lives and physical safety” of U.S. troops. Charles Gardner Mills, a judge advocate who works with the American Legion, a 3 million–member organization of U.S. veterans, filed an amicus brief saying that the photos should be withheld. “There is a real, serious danger -- almost a certainty -- that if these photos are made public, people will get killed,” he explains.
There's no doubt that the additional, as-yet-unreleased images would drum up strong emotions, and certainly headlines. But there's no evidence that their release would cause immediate retaliatory violence against U.S. troops. “There was no [immediate] spike in violence due to Abu Ghraib,” says Michael O'Hanlon, a senior fellow at the Brookings Institution who tracks security issues, among other factors, through a database known as the “Iraq Index.” In fact, the weeks before the April 28, 2004, release of the photos were the worst ever, surpassing the violence in the weeks after. (O'Hanlon does believe the photos have contributed in some way to the increasing violence of that season, though other factors -- such as the Fallujah battles, a flawed military strategy, and disenfranchisement among Baathists -- have played at least as important a role.)
For advocates of the photos' release, the benefits of publicly showing them -- all of them -- far outweigh the dangers. “The administration has a propensity not to tell the whole truth,” says Janis Karpinski, the author of the book One Woman's Army who was reprimanded by the military for her blunders as the commanding general at Abu Ghraib and considers herself a scapegoat in the detainee-abuse scandal. “It's not that they're lying; it's that they're not telling everything they know.” She says she hasn't seen the additional photos but that she'd like them to be made public. “As long as they suppress this information, people will speculate,” she says. “I say, ‘Release them. Release it all.' Say, ‘This is all we have,' and you will end the speculation.”
Thomas S. Blanton, director of the National Security Archive at George Washington University, argues that the basis for withholding the images is anti-democratic. Says Blanton, “It's one of the most creative arguments for covering up official misbehavior the government has ever come up with: ‘Because the government's behavior is so reprehensible, it must be hidden.' It turns the whole argument for open government on its head.” Blanton filed his first FOIA request as a reporter in 1976 and now oversees an organization where, he says, staffers file 1,000 to 2,000 requests each year.
Judge Hellerstein, who was appointed to the federal bench in 1998 by President Bill Clinton, seems inclined to agree. “Our nation does not surrender to blackmail,” he wrote. “With great respect to the concerns expressed by General Myers, my task is not to defer to our worst fears, but to interpret and apply the law, in this case the Freedom of Information Act, which advances values important to our society: transparency and accountability in government.”
Indeed, argues NYU's Fahmy, it's precisely by honoring those values that the United States will find allies in the Muslim world. “In the Muslim world and elsewhere, much of the anger surrounding the photos stems from the fact the U.S. endorses torture and has failed to hold officials accountable,” he says. “The government's concealment of evidence only feeds the anger. The release of the pictures would win support around the world because it would show people the U.S. government is upholding principles of accountability and transparency.”
Tara McKelvey is a Prospect senior editor.
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