Dispatches from the Creation Wars

Bush Loses Key FOIA Case

A 3 judge panel of the 2nd circuit has unanimously ruled against the Bush administration and the Pentagon and ordered them to turn over photographs depicting abusive treatment of prisoners in American custody in Iraq and Afghanistan. The ACLU had filed a FOIA request for the pictures and the Pentagon refused to turn them over, claiming they were exempt from FOIA. And wait till you hear their basis for claiming exemption from FOIA.

When the case was filed, the first argument the government offered – and this is stunning chutzpah even for the Bush administration – was that turning over the photos would violate the privacy of the detainees pictured in the photos. That’s right. After encouraging the abuse and torture of these same people, they suddenly show great concern for their privacy rights. And if you believe that, I’ve got a bridge to nowhere to sell you.

The district court ruled against them and simply ordered that the pictures be redacted to hide the identity of the people being abused but still show the abuse.

On September 29, 2005 the district court rejected the defendants’ arguments and ordered the disclosure of the Abu Ghraib photos. It determined that redaction of “all identifying characteristics of the persons in the photographs” would prevent an invasion of privacy interests. To the extent that an invasion of privacy might occur in spite of the redactions, the court found that such an invasion would not be “unwarranted” since the public interest involved “far outweighs any speculative invasion of personal privacy.”

But at the last minute the government tried to amend their answer and submit a second basis for exemption from FOIA:

More than two months after oral argument of the cross-motions, the defendants added another justification for withholding the Abu Ghraib photos: exemption 7(F). That exemption authorizes withholding of records “compiled for law enforcement purposes” where disclosure “could reasonably be expected to endanger the life or physical safety of any individual.” According to the defendants, release of the Abu Ghraib photos could reasonably be
expected to endanger the life or physical safety of United States troops, other Coalition forces,
and civilians in Iraq and Afghanistan.

The district court then ruled on that argument:

The district court stated, “Our nation does not surrender to blackmail, and fear of blackmail is not a legally sufficient argument to prevent us from performing a statutory command.” While acknowledging the “risk that the enemy will seize upon the publicity of the
photographs and seek to use such publicity as a pretext for enlistments and violent acts,” the
court balanced that risk against the benefits of “education and debate that such publicity will
foster,” and ordered the photos released in redacted form.

The Pentagon appealed that ruling, but those Abu Ghraib pictures ended up on the internet anyway so the appeal was withdrawn. But then the ACLU found out that there were an additional 29 pictures that the Pentagon was refusing to turn over that depicted abuse of prisoners at several other locations in Iraq and Afghanistan. Those pictures came from cases that the Pentagon had brought against soldiers for prisoner abuse, two of whom have been convicted.

The district court then reopened the case to deal with those photos rather than the original ones and reached the same result, ruling against the government and ordering them to release the photos. And now the appeals court has upheld the lower court ruling. This is a very good thing. The American public has to know what the government has done in their name. Another crack in the wall of unaccountability that the Bush administration has worked so hard to build.