Editor's note: Glenn Greenwald is on vacation this week. Daphne Eviatar of The Washington Independent is guest-blogging today.
If, as the latest reports indicate, Eric Holder is serious about prosecuting the worst torture and abuse of "war on terror" prisoners that occurred during the Bush administration, then there's some key evidence he's going to want to take a look at: photographs. Although Bush Justice Department prosecutors claimed they didn't have the facts to support prosecuting anyone for the mysterious deaths and disappearances of detainees hauled out of Bagram and Abu Ghraib in body bags, the photographs -- which two courts have now ordered the Obama administration to turn over -- would seem likely to provide some of the missing evidence.
The photos I'm talking about are the same ones that President Obama back in April promised to release to the public by May. Then, after consulting with Defense Department and CIA leaders, he changed his mind. The ACLU, which sued under the Freedom of Information Act to obtain them, won orders from a federal district court in New York in 2005 and then the court of appeals in 2008; both courts agreed that the photos are critical to the public debate over torture and the U.S. government's counter-terrorism tactics, and don't fall under any exemption to the freedom of information law. Still, the Obama administration isn't budging.
Interestingly, while the case was on appeal, lawyers from the same Washington law firm that Eric Holder was then working at, Covington & Burling, wrote a powerful brief on behalf of 22 legal experts on the laws of war arguing for the photos' release. These sorts of images are in part responsible for the regime of international humanitarian law that we have today, they argued.
The cornerstone of modern international humanitarian law -- the Geneva Conventions of 1949 -- was adopted after the release of vivid images of Nazi concentration camp survivors. And it was the United States and General Dwight D. Eisenhower himself who insisted on distributing huge volumes of these photos to the media. The images of corpses, prisoner remains and emaciated survivors helped persuade nations around the world to develop and adopt new universal humanitarian norms.
It's because images can be so powerful and can motivate action that the Obama administration now wants to suppress them.
On Friday, the Justice Department filed a petition with the U.S. Supreme Court, arguing that releasing the photos of detainee abuse would so inflame public opinion against the United States abroad that it would endanger the lives of U.S. soldiers stationed in Iraq and Afghanistan.
(Initially, the government refused to turn them over on the grounds that they would violate the privacy rights of the detainees. After the ACLU and the court agreed to have the photos redacted to conceal identifying information and protect personal privacy, the government came up with this second reason to object.)
On its face, the argument sounds pretty reasonable. I have to admit that when the administration first announced its change of heart, although Glenn, Andrew Sullivan and many others were immediately outraged, I was somewhat sympathetic. After all, the Freedom of Information Act does include an exception to releasing information if it would reasonably be expected to "endanger the life or physical safety of any individual." The photos of abuse at Abu Ghraib were certainly alarming. And who would want to endanger the lives of U.S. troops?
Meanwhile, the Justice department had collected sworn statements from top military generals -- including General Richard Myers, then the Chairman of the Joint Chiefs of Staff and the Nation's highest ranking military officer -- saying that releasing the photos would do just that. Who are we to question the top brass?
Amrit Singh, an ACLU lawyer handling the case, answered that for me yesterday. "The argument the government has put forward is unacceptable because it would afford the greatest protection from disclosure to records that depict the worst kind of government misconduct. That is fundamentally inconsistent with FOIA. And it's fundamentally inconsistent with democracy."
It's a good point. Though I want to protect our troops as much as anybody, it turns out the law wasn't drafted to protect Americans from retaliation that might result because their country did something illegal, or even just really embarrassing. If it were, then evidence of any illegal or upsetting U.S. government conduct would be exempt from disclosure. And that would defeat the entire purpose of the Freedom of Information law.
According to the U.S. Supreme Court, the purpose of FOIA is "to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." So you can see how that would be seriously compromised by the government's interpretation of the law here.
It turns out that when you look at the language of the FOIA itself, the government's interpretation doesn't make much sense either.
Exemption 7(f) allows an agency to withhold "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to endanger the life or physical safety of any individual."
But does "any individual" mean any conceivable individual out there, or some specific individual that the government can identify?
The Court of Appeals ruled that because Congress said the release must endanger "any individual" rather than just "endanger life or physical safety" generally to be considered exempt, Congress must have meant some identifiable individual -- a particular witness to a crime or subject of a law enforcement investigation, for example. If Congress had meant to include anyone who's a member of a group of people who could possibly become the target of someone's anger, it would have used the more general phrase, the court reasoned. So the court ruled the exemption doesn't apply, and the Obama administration has to turn over the photographs.
Now, the administration faces a dilemma. When it released the Office of Legal Counsel memos written by the now-infamous John Yoo authorizing the administration to torture prisoners abroad, it wasn't prepared for the media firestorm that erupted -- and the growing public pressure to prosecute. Reluctant to face that again, Obama and senior officials in his administration are trying hard now not to stoke the fires. (Even if they can go along with a limited prosecution along the lines of what Eric Holder has described, they certainly don't want to face calls for prosecuting senior Bush officials.)
But it looks like they can't legally stop this release.
Still, they can delay it. Supreme Court review could delay the case months or even years, depending on what the court decides to do. In the meantime, other reports will be released about the Bush era anti-terror tactics. Those include the Senate Intelligence committee's investigation led by Senator Dianne Feinstein, the report from the ethics division of the Justice Department, the Office of Professional Responsibility, on the work of the DOJ lawyers who crafted the memos, and, of course, the 2004 CIA Inspector General report I wrote about earlier that's supposed to be released by the 24th of this month.
Which raises the question whether the government will invoke Exemption 7(f) of FOIA to try to withhold that report. After all, couldn't the government make the exact same argument about the CIA report that it's making about the photos? You see the slippery slope we're on.
The CIA report apparently describes cases of abuse and deaths in custody so horrific that Attorney General Eric Holder was moved to consider initiating prosecutions. And that's despite the fact that the Justice Department under Bush investigated those cases, but decided not to prosecute them. That report must be pretty upsetting.
So don't be surprised if we start hearing that we shouldn't be allowed to see that one either, because someone somewhere might get hurt.
The administration could, of course, try to distinguish the report from the photographs, arguing that, essentially, a picture is worth a thousand words. The photos may be just too powerful.
When faced with the atrocities of the Nazi concentration camps at the close of World War II, Eisenhower found that words failed him:
I have never felt able to describe my emotional reactions when I first came face to face with indisputable evidence of Nazi brutality and ruthless disregard of every shred of decency. Up to that time I had known about it only generally or through secondary sources. I am certain, however that I have never at any other time experienced an equal sense of shock . . . as soon as I returned to Patton's headquarters that evening I sent communications to both Washington and London, urging the two governments to send instantly to Germany a random group of newspaper editors and representative groups from the national legislatures. I felt that the evidence should be immediately placed before the American and British publics in a fashion that would leave no room for cynical doubt. -- "Crusade in Europe," Dwight Eisenhower, pp. 408-9
One can only conclude that the Obama administration is taking refuge in that doubt, or is not prepared to face the consequences in this country once the current veil of doubt is lifted.
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