Guest Blogger Jason Leopold: "Gates Invokes New Authority to Block Release of Detainee Abuse Photos"

Jason Leopold's latest piece, "Gates Invokes New Authority to Block Release of Detainee Abuse Photos," is sure to make your blood boil (which was originally posted on t r u t h o u t November 14, 2009):

Gates Invokes New Authority to Block Release of Detainee Abuse Photos

by: Jason Leopold, t r u t h o u t | Report

Secretary of Defense Robert Gates has blocked the release of photographs depicting US soldiers abusing detainees in Iraq and Afghanistan, using authority just granted to him by Congress to circumvent the Freedom of Information Act (FOIA) to keep the images under wraps on national security grounds.

(Photo to the right: Wikicommons - Blood on the floor and walls of a cell at Abu Ghraib. Defense Secretary Robert Gates invoked his new authority to block images like these from being released under the Freedom of Information Act.)

In a brief filed with the US Supreme Court late Friday, Department of Defense General Counsel Jeh Johnson, and Solicitor General Elena Kagan, said Gates “personally exercised his certification authority” on Friday to withhold the photos and “determined 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."

“Based on that determination, the Secretary has concluded that the photographs are ‘protected documents’” and are “exempt from mandatory disclosure under FOIA,” the government's brief states.

In his certification included with the filing, Gates said his decision to withhold the photos was based "upon the recommendations of the Chairman of the Joint Chiefs of Staff, the Commander of U.S. Central Command, and the Commander of Multi-National Forces-Iraq..."

As first reported by truthout, the photographs at issue include one in which a female solider is pointing a broom at a detainee "as if [she were] sticking the end of a broomstick into [his] rectum."

Other photos are said to show US soldiers pointing guns at the heads of hooded and bound detainees in prisons in Iraq and Afghanistan. The Army's Criminal Investigation Division investigated the matter and "three of the six investigations led to criminal charges and in two of those cases, the accused were found guilty and punished," according to papers Kagan previously filed with the Supreme Court.

The ACLU filed a FOIA request in 2004 to gain access to photographs and videos related to the treatment of "war on terror" prisoners in US custody and sued the government a year later to enforce the FOIA filing. The US District Court for the Southern District of New York ordered the release of the photos in a June 2005 ruling that was affirmed by the Second Circuit Court of Appeals in September 2008.

Last month, Congress passed a Homeland Security appropriations bill, which President Obama signed into law, that included a provision, sponsored by Senators Joe Lieberman, (I-Connecticut), and Lindsey Graham, (R-South Carolina, to amend the Freedom of Information Act (FOIA) authorizing Gates to withhold "protected documents" that, if released, would endanger the lives of US soldiers or government employees deployed outside of the country.

According to the bill, the phrase "protected documents" refers to photographs taken between September 11, 2001 and January 22, 2009, and involves "the treatment of individuals engaged, captured or detained" in the so-called "war on terror." Photographs that Gates determines would endanger troops and government employees could be withheld for three years.

Rep. Louise Slaughter, (D-New York), said in a floor statement in October as Congress was debating the provision to amend FOIA, that the language was stripped from an earlier version of the bill, but was quietly reinserted "apparently under direct orders from the administration."

Jameel Jaffer, director of the ACLU's National Security Project, said the abuse photos are “an important part of the historical record and they are crucial to the ongoing debate about accountability.

"In withholding the photos, Secretary Gates has cited national security concerns, but no democracy has ever been made stronger by suppressing information about its own misconduct."

Obama Backtracks

The Bush administration challenged the Second Circuit's September 2008 ruling, and in March the court denied that petition. In its earlier ruling, the appeals court also shot down the Bush administration's attempt to radically expand FOIA exemptions for withholding the photos, stating that the Bush administration had attempted to use the FOIA exemptions as "an all-purpose damper on global controversy."

The Obama administration indicated it would abide by the appeals court order and release at least 44 of the photographs in question, but, in May, after he was pilloried by Republicans, President Obama backtracked, saying he had conferred with high-ranking military officials who advised him that releasing the images would stoke anti-American sentiment and would endanger the lives of US troops in Afghanistan and Iraq.

As Truthout previously reported, the Obama administration petitioned the US Supreme Court to hear the case last summer at the same time the president privately told Lieberman and Graham he would work closely with Congress to help pass a measure to ensure the photographs could be withheld.

Obama's decision to sign legislation into law that allows his administration to circumvent FOIA marks an about-face on the open-government policies that he proclaimed during his first days in office.

On January 21, Obama signed an executive order instructing all federal agencies and departments to "adopt a presumption in favor" of Freedom of Information Act requests, and promised to make the federal government more transparent.

"The government should not keep 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," Obama's order said. "In responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public."

Instead of withdrawing its petition now that legislation has been passed, the Obama administration on Friday, citing precedent, asked the high court to vacate the Second Circuit's opinion, and then "remand to allow the lower courts to address the effect of the new legislation on the litigation."

"Given Congress’s enactment of intervening legislation resolving the present dispute by providing for withholding of the records at issue, the Court now has no occasion to address the proper construction of Exemption 7(F) as set forth in the government’s petition," the government's filing states. "The appropriate disposition, after these events, is for this Court to grant the certiorari petition, vacate the judgment of the court of appeals, and remand for further proceedings... in light of the intervening legislation" passed by Congress."

In its earlier Supreme Court petition, the Obama administration argued that FOIA Exemption 7(F) allows for the withholding of information if it threatens the lives of individuals.

The Second Circuit, however, disagreed. The court ruled that FOIA "mandates the public disclosure of such photographs - regardless of the risk to American lives - because FOIA Exemption 7(F) requires the government to 'identify at least one individual with reasonable specificity' and show that disclosure 'could reasonably be expected to endanger that individual.'"

The government argued that the Second Circuit misinterpreted the law when it ruled that the government had to identify specific individuals who would be harmed by the disclosure of the photographs

The Obama administration maintained that Exemption 7(F), "is inconsistent with the text of Exemption 7(F), which broadly encompasses danger to 'any individual,' with no suggestion of the court's extra-textual requirement of victim specificity. The history of drafting that exemption "underscores that conclusion. Congress did not mean for public disclosure of agency records to trump the life and physical safety of individuals - particularly in a case such as this, in which the government has already made public the underlying investigative reports revealing all relevant allegations of wrongdoing and the associated investigative conclusions."

"The President and the United States military fully recognize that certain photographs at issue depict reprehensible conduct by American personnel and warranted disciplinary action," the government's petition states. "There are neither justifications nor excuses for such conduct by members of the military. But the fact remains that public disclosure of the photographs could reasonably be expected to endanger the lives and physical safety of individuals engaged in the Nation's military operations in Iraq and Afghanistan. The photographs therefore are exempt from mandatory disclosure under FOIA. Review by this Court is warranted to give effect to Exemption 7(F) and the protection it affords to the personnel whose lives and physical safety would be placed at risk by disclosure."

Alex Abdo, a legal fellow with the ACLU's National Security Project, said the Obama administration's argument for continuing to suppres the photos "sets a dangerous precedent – that the government can conceal evidence of its own misconduct precisely because the evidence powerfully documents gross abuses of power and of detainees.

“This principal is fundamentally anti-democratic. The American public has a right to see the evidence of crimes committed in their name.”

Abdo said the ACLU will be filing a response to the administration's brief next week.

Jason Leopold is the deputy managing editor of t r u t h o u t.org and is a co-founder of The Public Record.

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