The Justice Department’s release last week of Bush-era Office of Legal Counsel memos was an important step towards exposing past abuses of executive power and restoring government transparency. But still lingering out there, attracting much less attention, yet just as crucial for us to see, are still-secret photos of U.S. personnel abusing prisoners at overseas locations other than Abu Ghraib. The Defense Department has withheld these images from public view for more than five years. As part of its commitment to an “unprecedented” level of openness and accountability, the Obama administration should immediately disclose these pictures.
Most people do not even know that these photographs exist. When the Abu Ghraib prisoner abuse images were first leaked to the press almost five years ago, the Bush administration painted the abuse as anomalous and pinned the blame on a few bad apples, a handful of low-ranking “rogue” soldiers. Then-Defense Secretary Donald Rumsfeld said, “I can’t conceive of anyone looking at the [Abu Ghraib] pictures and suggesting that anyone could have recommended, condoned, permitted, encouraged, subtly, directly, in any way, that those things take place.” There were certainly no admissions from the administration that Abu Ghraib was just the tip of the iceberg, or that the administration was in possession of photographic evidence of prisoner abuse at other locations. It was only in the context of the ACLU’s Freedom of Information Act (FOIA) lawsuit that the Defense Department was ultimately forced to disclose that it was withholding photographs of prisoner abuse at locations other than Abu Ghraib in Iraq and in Afghanistan.
The public value of these images is considerable. As visual records, they convey what words could not possibly communicate. As evidence of abuse at locations other than Abu Ghraib, they undermine the Bush administration’s claim that abuse was aberrational. The disclosure of these images is critical to help the public understand the scope and scale of prisoner abuse as well as the extent to which such abuse was caused by policy decisions. Disclosure is also crucial for assessing official responsibility for the abuse.
In court, the Bush administration conceded that the secret photographs depict governmental wrongdoing. The government argued, however, that it was entitled to withhold the images because their disclosure could lead to violent outrage and propaganda directed against the United States. In effect, the Bush administration argued that the images should be withheld from public view precisely because they depict governmental wrongdoing. And even though it had previously determined that the Geneva Conventions did not protect Taliban and al Qaeda prisoners, the Bush administration also argued that disclosure would expose the prisoners to “insults and public curiosity” in violation of the Geneva Conventions.
These arguments have no place in a democracy. They effectively place the government above the law. If accepted, these arguments would prevent human rights violations committed by the government from ever coming to light.
Nor do these arguments have any place in the law. Congress enacted FOIA precisely to ensure government accountability. By effectively seeking the greatest protection from disclosure for records that depict the worst government misconduct, the Bush administration’s argument turns FOIA on its head.
The administration’s argument with respect to the Geneva Conventions is similarly unsupportable. Plaintiffs in the FOIA lawsuit seek disclosure of the images only after individually identifying information has been deleted from each of them. Release of the images in this form does not expose the prisoners depicted to “insults” or “public curiosity.” Rather, by exposing prisoner abuse, it serves the Conventions’ central aim of ensuring that prisoners are treated humanely. Nor can the Bush administration’s position be squared with historical United States practice. At the end of the Second World War, while the 1929 Geneva Conventions’ “public curiosity” provisions were in effect, the United States disseminated to the media large numbers of photographs of prisoners in German and Japanese prisons and concentration camps in order to hold the perpetrators accountable.
It should therefore come as no surprise that both the district court and a unanimous panel of the U.S. Court of Appeals for the Second Circuit soundly rejected these arguments for withholding the prisoner abuse images. In ordering release of the images, the appeals panel expressly recognized that “the facts of this case place governmental accountability at the center of the dispute,” and that “there is significant public interest” in disclosure of the images. Yet, the Bush administration took the added step of requesting further review by the full court of appeals. That request — which is still pending — had the intended effect of further delaying the release of the images.
However, that pending request does not and should not prevent the Obama administration from holding true to its promise of transparency and releasing the prisoner abuse images. The American public has the right to know what was done in its name and to draw its own conclusions from viewing these images.
Indeed, withholding the prisoner abuse images would seriously undermine President Obama’s recent directives on government openness. One of those directives expressly prohibits the government from “keep[ing] information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.” That directive also quotes Supreme Court Justice Louis Brandeis’s famous observation that sunlight is the best of disinfectants. The President should heed that wisdom, and instruct his administration to publicly disclose these photographs.