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Gates Bars Torture Photos' Release

| Fri Nov. 13, 2009 9:17 PM PST

— A sketch by Thomas V. Curtis, a former Reserve M.P. sergeant, showing how a detainee in Afghanistan was allegedly chained to the ceiling of his cell. (Wikimedia Commons).

Defense Secretary Robert Gates has used powers granted to him by a controversial new law to block the court-ordered release of numerous photos of detainee abuse, government lawyers revealed in a court filing [PDF] Friday evening.

Gates' new authority comes from a law, signed by President Barack Obama last month, that gives the Secretary of Defense the power to rule that photos of detainees are exempt from release under the Freedom of Information Act. Gates' action on Friday was the first use of the new FOIA exemption since it passed Congress last month. The photos in question are the subject of a years-long legal fight by the American Civil Liberties Union, which first filed a FOIA request for records pertaining to detainee treatment, rendition, and death in May of 2005. The case is currently being reviewed by the Supreme Court.

The administration first sought to change FOIA in June, shortly after deciding to contest a ruling by the Second Circuit Court of Appeals that ordered the photos' release. The resulting bill, championed by Sen. Joseph Lieberman (I-Conn.), was specifically designed to nullify the effect of the appeals court's ruling. Since the court had ruled that the photos couldn't be withheld under an existing FOIA exemption, the Obama administration simply asked Congress to carve out a new exemption. Despite objections from liberal members of the House, Congress obliged.

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The new exemption's requirements are stunningly lax. In order to withhold the photos, Gates simply had to certify, as he did in the court filing, that "public disclosure of these photographs would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States." In other words, their release had to endanger someone, somewhere. And in the unlikely event that Gates had to stretch the truth to make that certification, it wouldn't matter, since there's no provision in the law that allows any court to review Gates' determination or rule on whether it was truthful.

This isn't just a few photos. Gates' block could apply to a far larger group of images than the 44 that are at issue in the ACLU's lawsuit. "The photographs include but are not limited to the 44 photographs" in the suit, Gates wrote in his certification. The extension of the ban beyond the 44 photos is the result of a flip-flop by the Obama administration. The Obama administration had originally planned to comply with the appeals court's order to release the photos. In April, Justice Department lawyers informed the ACLU in a letter [PDF] that the government planned to release the 44 photos and a "substantial number" of other images—over 2,000, according to some reports. But three weeks later, the administration changed course and decided to contest the appeals court's decision and pursue a legislative workaround. Now it appears that Gates has blocked the release of a large number—perhaps all—of the extant photos depicting abuse during the period from September 11th until the end of the Bush administration.

The administration undoubtedly has its reasons for withholding the photos. It's certainly possible that the release of more photos could help terrorist recruitment or further enrage anti-American sentiment abroad. But make no mistake. The new FOIA exemption that the Obama White House sought and obtained has one obvious result: shielding evidence of government lawbreaking, abuse, and torture under the Bush administration from public scrutiny. So much for Obama's claim that "transparency and the rule of law will be the touchstones of this presidency." There's a name for what the Obama administration did on Friday. It's called a coverup.

Nick Baumann covers national politics for Mother Jones' DC Bureau. For more of his stories, click here. He can also be found on twitter.

Nick Baumann covers national politics for Mother Jones' DC Bureau. For more of his stories, click here. He can also be found on twitter.

Comments

IF the ACLU really wants to help people...

Submitted by GarySeven on Sat Nov. 14, 2009 2:10 AM PST.

...then why don't they work to decriminalize drugs? It seems, from the news, that the biggest problem currently facing Afghanistan is...drugs. Specifically, opium cultivation. Sooo...if this stuff is SO popular, in western countries, then why doesn't Bayer just put the stuff back on the market, why doesn't the ACLU petition them to do that? Essentially, you've got a pharmaceutical company that used to make the stuff that all these people are now killing each other over, and by this news report, a 65 billion dollar annual market,
http://www.nytimes.com/2009/10/23/world/23nations.html
"UNITED NATIONS — The Afghan opium harvest is feeding a $65 billion global trade in heroin each year, which now kills many more people in NATO countries in a year than the number of NATO soldiers who have died on the battlefield in Afghanistan since 2001, Antonio Maria Costa, the senior United Nations official on drugs and crime, said Thursday."

So, let's be 3% smarter than the problem, here, and have the stuff coming from a legitimate pharmacy company, from crops grown in the US and Europe, instead of a far-east country where they do business at gunpoint over the stuff.

Legalization of drugs puts the ball in the court of medicine, instead of the military. The medical community, in all their wisdom, probably knows how to get people unhooked off of heroin, and if the 'customers' are coming to them, instead of dealing with habib on a streetcorner, then maybe they stand a better chance of dealing with people and actually helping them, before they come to the emergency room, O.D.'d.

If the ACLU was that perturbed about the whole business of torture, then why didn't they do more to support the impeachment effort against Bush? It's too late now, water under the bridge, but now at least maybe they could use whatever influence they have to help get this country, and others, in front of the drug issue in a meaningful and productive way, and put the overseas parties out of business.

http://en.wikipedia.org/wiki/Heroin
http://en.wikipedia.org/wiki/Marijuana

The US and europe have farmers, there's all this talk about unemployment, so,
'steal' the market from the folks in Afghanistan, and just grow the stuff inside our borders, keep the problem(and the money) local, and give the medicos a leg to stand on. That is, if the ACLU actually intends on doing anything meaningful, and helpful.

When the drug dealers have no more reason to smuggle to the United States, or even come to the United States, then they'll stop. And, maybe other countries can emulate our eventual success on dealing with 'dope' in this country. People are using the stuff anyway, in spite of best efforts, so...?

Klaatu Marachas Necktie

ACLU & Drugs

Submitted by cinnamonape (not verified) on Sat Nov. 14, 2009 9:49 AM PST.

klaatu- The ACLU's mandate is to protect Constitutional rights. I'm unaware that there is a Constitutional right to use drugs. As you point out legalization requires a change in the laws. That's not the domain of the ACLU. There are lots of other organizations to donate and support for that.

The ACLU has been involved in civil rights issues related to drug prosecutions...search and seizure, unfair sentencing, evidence issues...and they do great work there.

The ACLU did expose more of Bush's Unconstitutional ACTS and did more than any other to build the case for impeachment. But impeachment is not something you do in Court...it's a political act.

Ummmyeah....that whole

Submitted by Anonymous (not verified) on Sat Nov. 14, 2009 1:56 PM PST.

Ummmyeah....that whole "life, liberty, and the pursuit of happiness" means absolutely nothing....

Constitution

Submitted by BoiseLib (not verified) on Sun Nov. 15, 2009 7:26 AM PST.

9th amendment.

I like it!

Submitted by DaveD (not verified) on Mon Nov. 16, 2009 4:15 AM PST.

I like the idea; let's end our dependence on foreign drugs by producing more here at home.

Grow, Baby, Grow!

faces of death

Submitted by MJ (not verified) on Sat Nov. 14, 2009 10:14 AM PST.

wanting mr obama to release new photos of torture is a large request to meet the standards of transparency and i also assert thats its unnecessary. at least the admn. is admiting that the photos exist and that they are a problem. wanting to see them is another story. its like wanting to watch an al-queda training video. i dont see this as a cover up at all, its really handling sensitive material in a respectful way. and its absurd to insist that the world needs to see more acts of violence in order to be a fair and just place. if you all are so interested in others knowing the realities of the current war encourage your friends to read (ricks, coll, wright, johnson, etc...) there are plenty of outlets for us to educate ourselves without becoming fanatic consumers of the pain and suffering our lifestyle/culture is creating.

Agree completely. No one

Submitted by klm (not verified) on Sat Nov. 14, 2009 1:44 PM PST.

Agree completely. No one 'needs' to see this photos. With all of the idiotic rampage running around the country in the name of 'freedom' and the fanatics who would have a hay day with these photos, the last thing we need is to fuel the fire.

What we need to do is hold the Cheney/Bush Adm accountable for their existence.

Torture photos

Submitted by KTal (not verified) on Sun Nov. 15, 2009 6:25 AM PST.

I don't think it's the government's job to decide what horrible images they need to "protect" us from. The law prevents effective legal action (both nationally and internationally) against torture, and puts the government that oversaw the crimes in charge of cleaning up its own house. It undermines the checks and balances that are supposed to restrain the executive branch. It's more important to prevent that than it is to "protect" anyone.

Non-release of photos

Submitted by coolfire (not verified) on Sat Nov. 14, 2009 10:36 AM PST.

So much for Open Government, taking responsibility for acts, being big enough to face the world openly and admit wrong-doing with photographic evidence, and the rule of law. It is simply shameful. The rationale is flagrantly specious.

So covering up evidence of a

Submitted by Anonymous (not verified) on Sat Nov. 14, 2009 11:01 AM PST.

So covering up evidence of a crime is now legal because a new law allows it. With power like this is there anything the government can't do?

So covering up evidence?

Submitted by Jeronimo Dan (not verified) on Sat Nov. 14, 2009 11:10 AM PST.

The answer to your question is "NO"...

torture cover-up

Submitted by Junior (not verified) on Sat Nov. 14, 2009 11:15 AM PST.

By covering up the torture by the Bush administration, Obama becomes complicit in the crime. He is guilty after the fact. Just how significant is the difference between Obama and Bush?

torture cover-up

Submitted by Junior (not verified) on Sat Nov. 14, 2009 11:19 AM PST.

Sorry folks, believe me, I feel as bad about thlis as anybody, but, when it counts. like this torture cover-up, Bush = Obama, Obama = Bush.

Ever heard that Obama is is

Submitted by Obama - What a dis-appointment! (not verified) on Sun Nov. 15, 2009 6:00 AM PST.

Ever heard that Obama is is AKA - BUSHAMA!! It fits him perfectly.

Kerry for Secretary of Defense

Submitted by edbrylovesaguy on Sat Nov. 14, 2009 12:33 PM PST.

John Kerry's qualifications for Secretary of Defense are exceptional.
We have one presidential candidate as our Secretary of State, why
not another as Secretary of Defense?

Sadgurunath Maharaj ki jay!

We know that the torture

Submitted by riffraff on Sat Nov. 14, 2009 1:44 PM PST.

We know that the torture happened, we've seen the proof, why does anyone want to see more pictures? Is torture your hobby? Do you need more pictures for your collection? Just get some snuff videos.Maybe someone can tell me why these photos need to be published. They add nothing to the narrative.

"Intelligence" Matters

Submitted by SeaClearly (not verified) on Sat Nov. 14, 2009 2:29 PM PST.

In direct relation: http://seaclearly.wordpress.com/2009/11/11/reliable-intelligence-prisone...

http://www.youtube.com/watch?v=QhZSlE69h9M

It is amazing what minuscule

Submitted by Anonymous (not verified) on Sat Nov. 14, 2009 2:47 PM PST.

It is amazing what minuscule detail are often made a big fuss of, made to an all important
issue. What purpose would they serve anyhow? Sometimes human rights issues
are more a matter of egomania and righteousness, quarrelling over totally
unimportant things - and thus committing some kind of perfect sabotage when
it come to be bigger and actual issues.

War is Peace Freedom is

Submitted by Anonymous (not verified) on Sat Nov. 14, 2009 3:35 PM PST.

War is Peace

Freedom is Slavery

Ignorance is Strength

Democrat thugs

Submitted by Anonymous (not verified) on Sat Nov. 14, 2009 4:08 PM PST.

And who voted for OB? I knew he was a liar from the get go over that telecom immunity thing.
Democrats could have elected Bozo the Clown last election so who did they choose? A warmongering child killer. A wedding bomber.
I'm progressive. I don't vote for Democrats. Why? Because they're lying back stabbers.

Torture Photos' Release ....

Submitted by Neil kevin on Sat Nov. 14, 2009 8:51 PM PST.

tagged as:

result

ink cartridges

Fascism seems normal, these

Submitted by Anonymous (not verified) on Sun Nov. 15, 2009 8:09 AM PST.

Fascism seems normal, these days. Where, oh where has my country gone? Obama is a very dangerous man. I'm ashamed to have voted for him.

156 Chinese protesters

Submitted by Josh Fulton (not verified) on Sun Nov. 15, 2009 5:47 PM PST.

156 Chinese protesters killed before Obama's arrival

http://joshfulton.blogspot.com/2009/11/china-jails-dissidents-before-oba...

I am sorry to hear about

Submitted by cartouche d'encre (not verified) on Mon Nov. 16, 2009 1:09 AM PST.

I am sorry to hear about this new law, which does seem to continue policies I had hoped a new administration would correct. As for putting Americans in jeopardy, why permit photos to be taken in the first place? In the second place, I am thinking the US gov. is worried about war crimes trials initiated by foreign powers. In the third place, I have seen some of these photos all over the INTERNET. If there are photos worse than that, we all need to hang our head in shame. We have destroyed international treaties that our Americans initiated in the first place. I suppose that was long ago and Americans were different then.

Hope

Submitted by Sufragerie (not verified) on Mon Nov. 16, 2009 2:31 AM PST.

I truly believed in Obama's plans for the future but now i am very disappointed. Still, i think he's better than Bush.

By covering up the torture

Submitted by Breville (not verified) on Mon Nov. 16, 2009 9:42 AM PST.

By covering up the torture by the Bush administration, Obama becomes complicit in the crime.

Try Bush in international courts?

Submitted by Anonymous (not verified) on Mon Nov. 16, 2009 10:47 AM PST.

If we're going to continue sending troops to Afghanistan we don't need to publish new anti-American material for enemy recruitment purposes.

If Obama wanted he could get some good political mileage out of the release of the photos. But Bush is no longer president. But an international court could try him for war crimes. Dragging Bush back thru the mud may have some (entertainment/political) value, but where do we draw the line as far as allowing our troops to be prosecuted in international courts for following orders.

At some point we need to think on how to move on from the Bush era and focus on what's best for the USA. Beating on Nixon might have been fun but Ford knew the country needed to focus on the future. Maybe Obama is trying to take the high road and do the same thing. It's not like he doesn't have other fish to fry...