Human rights lawyers are proving to be a major headache for the new administration of President Barack Obama by stepping up their court challenges on issues of prisoner abuse to test the reality of the president's pledge to create a "an unprecedented level of openness" in government.
A series of current court challenges illustrates the point.
Five years ago, the American Civil Liberties Union filed a Freedom of Information Act request that the Department of Defense release photos showing prisoner abuse by the U.S. military in Iraq and Afghanistan that the public had never seen. The government refused.
Five years later, in September 2008, a unanimous three-judge panel of the U.S. Circuit Court of Appeals ordered the George W. Bush administration to release the photos. But, as of today, the government has not complied with the court's order. The only record the government has released to date is a set of media talking points used by the State Department.
In early March, the DOD asked for a hearing by the full appeals court. That request was denied. The government then asked for a 30-day stay of the court's mandate.
That prompted ACLU lawyers to write to the Defense Department, asking the government to reconsider its position and release the photos in light of President Barack Obama's executive order. The Defense Department has not yet replied.
Jameel Jaffer, Director of the ACLU's National Security Project, told us, "The Obama administration's commitment to transparency is commendable. "We want to make sure that this rhetoric becomes reality."
ACLU attorney Amrit Singh, who argued the case in court, added, "The American public has the right to view these images to know what was done in its name."
"Release of the photos would send a powerful message that the new administration truly intends to break from the unaccountability of the Bush years," she said.
The government refusal to disclose these images is based on its attempt to radically expand the exemptions allowed under the FOIA for withholding records. The government also claimed that the public disclosure of such evidence would generate outrage and would violate U.S. obligations towards detainees under the Geneva Conventions.
However, the appeals court panel rejected the government's attempt to use exemptions to the FOIA as "an all-purpose damper on global controversy" and recognized the "significant public interest in the disclosure of these photographs" in light of government misconduct. The court also recognized that releasing the photographs is likely to prevent "further abuse of prisoners."
Much of what the public knows about U.S. treatment of prisoners has been learned from the more than 100,000 pages of government documents obtained in response to the ACLU's FOIA lawsuit.
Attorney General Eric Holder recently issued comprehensive new FOIA guidelines that direct all executive branch departments and agencies to apply a presumption of openness when administering the FOIA.
In another case, in 2003, lawyers from the Center for Constitutional Rights, the ACLU, Physicians for Human Rights, Veterans for Common Sense, and Veterans for Peace, filed a FOIA request to the Departments of Defense, State, Homeland Security, and Justice, as well as the CIA, to immediately process and release all records relating to treatment of prisoners in U.S. custody.
When the government failed to respond, the organizations filed a lawsuit charging that these government agencies illegally withheld records concerning the abuse of detainees in American military custody.
Their complaint noted, "Photographs and videos leaked to the press have established beyond any doubt that detainees held in Iraq have been subjected to humiliating and degrading treatment. The government has conceded that numerous detainees have died in custody; at least sixteen of these deaths have been classified as homicides. There is growing evidence that the abuse of detainees was not aberrational but systemic, that in some cases the abuse amounted to torture and resulted in death, and that senior officials either approved of the abuse or were deliberately indifferent to it."
In 2005, a federal district court judge ordered the government to release 74 photos and three videos. The DOD and the Army appealed the district court's decision. A year later, the Court of Appeals upheld the lower court's decision, dismissing the government's appeal. But the government still has not released the photos and videos.
In other cases, human rights lawyers have filed two court challenges against the Obama administration's treatment of Guantanamo detainees and its future plans for the men, most of whom have been held for years without trial.
One motion was filed on behalf of Chinese Uighur, Huzaifat Parhat. He was among 17 Uighurs ordered released by a U.S. court last June, seven years after their arrest, but who remain in detention at Guantanamo Bay.
Lawyers filed a motion of contempt against Secretary of Defense Robert Gates denouncing his "continued refusal to comply with a final order" by the appeals court to release Parhat, the document said.
The lawyers also demanded that a new court ruling should include "a threat of sanctions" in order to ensure Gates complies with the order to release Parhat.
Yet another lawsuit filed by about 15 Guantanamo inmates took issue with new rules laid down by the administration of President Obama earlier this month justifying the state's right to hold terror suspects.
On March 13, the Justice Department said it was dropping the "enemy combatant" designation for terror suspects and vowed to apply international law to its detention policies. It said only those who "substantially supported" the Al-Qaeda network, Taliban Islamic militants or "associated forces" would be held under such laws.
But the detainees' lawyers minimized the new policy as only a "partial retreat" from the positions held under the previous administration of former president Bush.
"The conceptual approach they now advance has not greatly changed," they argued in the court filing.
They also lashed out at the government for justifying detaining suspects without charge or trial solely on the basis of a congressional decision authorizing the U.S.-led "war on terror" after the September 11, 2001 attacks.
The political decision to hold suspects indefinitely without charge because they are deemed too dangerous to be free is a policy choice that under the US Constitution "must be resolved by Congress, not by the executive branch," they wrote.
In a fourth case, lawyers for 30 Guantanamo detainees filed a motion accusing the Obama administration of violating the Geneva Conventions in its treatment of the estimated 240 prisoners remaining at the controversial prison camp.
Obama has vowed to close the camp within the next 12 months, and has ordered individual reviews of the cases against each of the remaining prisoners.
Civil libertarians are perplexed by some of the early actions the Obama administration has taken in court. In two recent cases, lawyers for the Obama Justice Department have invoked the same "state secrets" defense used by President Bush's administration.
They are also disappointed by the lack of media interest in issues of prisoner detention and treatment. Based on questions asked of President Obama during many interviews and during his two recent press conferences, the mainstream press appears to have little interest in these issues. So these questions are likely to be resolved in the courtroom.
Since the terrorist attacks of 9/111, the judicial branch has rebuffed many of the policies and practices of the Bush Administration. But with a large proportion of Bush appointees now sitting as federal judges, how their future decisions will impact the Obama Administration remains unclear.