Sept. 12, 2005 - Punch and Jurists: Federal Criminal Law Newsletter, Vol. 12, Nos. 36 & 37 Judge Orders Release Of Abuse Photos In ACLU/FOIA Lawsuit ACLU v. Department of Defense, No. 04 Civ. 4151 (S.D.N.Y 09/29/05) (Judge Hellerstein)

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On October 7, 2003, the American Civil Liberties Union (ACLU) filed a Freedom of Information Act (FOIA) lawsuit against the Government, seeking information regarding the mistreatment of detainees being held at various military prisons, including Guantanamo Bay, Cuba and the Abu Ghraib prison in Iraq. The ACLU has said that the information it was seeking was a critical component in its quest for public accountability.

From the beginning, Judge Hellerstein has warned the Government that: "Ours is a government of laws, laws duly promulgated and laws duly observed. No one is above the law: not the executive, not the Congress, and not the judiciary." (ACLU v. Dept. of Defense, 339 F. Supp.2d 501, 502 (S.D.N.Y. Sept. 15, 2004) (P&J, 08/30/04)).

Despite those warnings, the Government has done little but stall, stonewall, and frustrate all of the efforts of the ACLU and Judge Hellerstein to bring about a speedy resolution of that lawsuit. (See, e.g., ACLU v. Dept. of Defense, 351 F.Supp.2d 265 (S.D.N.Y. Feb. 2, 2005) (P&J, 01/10/05); and 357 F.Supp.2d 708 (S.D.N.Y. Feb. 28, 2005)).

In the latest episode of this battle of wills, Judge Hellerstein ordered the release of some 74 photographs showing mistreatment of detainees at Abu Ghraib, after rejecting claims that (I) the photos were exempt from production under various provisions of FOIA, and (ii) the release of the photos would endanger American troops.

Judge Hellerstein concluded that publication of the photographs will help to answer questions not only about the unlawful conduct of American soldiers, but about the command structure that failed to exercise discipline over the troops, and the persons in that command structure whose failures in exercising supervision may make them culpable along with the soldiers who were court-martialed for perpetrating the wrongs. With powerful words, he wrote:

"The interest at stake arises from pictures of flagrantly improper conduct by American soldiers -- forcing prisoners under their charge to pose in a manner that compromised their humanity and dignity. . . .

"Publication of the photographs is central to the purposes of FOIA because they initiate debate, not only about the improper and unlawful conduct of American soldiers, 'rogue' soldiers, as they have been characterized, but also about other important questions as well -- for example, the command structure that failed to exercise discipline over the troops, and the persons in that command structure whose failures in exercising supervision may make them culpable along with the soldiers who were courtmartialed for perpetrating the wrongs; the poor training that did not create patterns of proper behavior and that failed to teach or distinguish between conduct that was proper and improper; the regulations and orders that governed the conduct of military forces engaged in guarding prisoners; the treatment of prisoners in other areas and places of detention; and other related questions.

"Suppression of information is the surest way to cause its significance to grow and persist. Clarity and openness are the best antidotes, either to dispel criticism if not merited or, if merited, to correct such errors as may be found. The fight to extend freedom has never been easy, and we are once again challenged, in Iraq and Afghanistan, by terrorists who engage in violence to intimidate our will and to force us to retreat.

"Our struggle to prevail must be without sacrificing the transparency and accountability of government and military officials. These are the values FOIA was intended to advance, and they are at the very heart of the values for which we fight in Afghanistan and Iraq.

"There is a 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. But the education and debate that such publicity will foster will strengthen our purpose and, by enabling such deficiencies as may be perceived to be debated and corrected, show our strength as a vibrant and functioning democracy to be emulated."

Recognizing that many aspects of his order had enormous potential political amifications, Judge Hellerstein stayed his order for 20 days to allow for appeals; and we are certain that this ruling will be appealed - if for no reason than to delay the release of information damaging to the Administration.

For example, one of Judge Hellerstein's specific rulings was a direction to the CIA to admit the existence of a memorandum from the Department of Justice to the CIA interpreting the Convention Against Torture and either produce it or explain its reasons for withholding the document. We suspect that it will be a cold day in hell before the CIA ever complies with that portion of Judge Hellerstein's order.

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