The Pentagon’s Latest Scheme to Keep Nearly 2,000 Detainee Abuse Photos Secret

For twelve years, the American Civil Liberties Union has pursued a lawsuit to force the United States government to release about 2,100 photographs of detainee abuse and torture in Afghanistan and Iraq, including inhumane treatment at Abu Ghraib prison. A federal district court ordered the release of the photos in March, but the government indicated it would appeal. Now, the Pentagon has “re-certified” the vast majority of the photos to keep them secret.

In October 2009, the Protected National Security Documents Act amended the Freedom of Information Act to “provide that photographs could be made exempt from disclosure for a three-year certification by the Secretary of Defense to the effect that publication would endanger American lives.” Prime Minister Nouri al-Maliki asked President Barack Obama not to release photographs of detainees abuse, for “fear of the consequences.” Secretary of Defense Robert Gates filed a certification to prevent the release of photographs, and the court upheld that certification.

Three years later, Secretary of Defense Leon Panetta renewed the certification, even though US troops had withdrawn and the war in Iraq was declared to be over.

In a motion [PDF] requesting Hellerstein’s order be vacated and the case be sent back to the federal district court for reconsideration, the government states, “The Panetta Certification expired on November 9, 2015. Approximately six months before its expiration, [the Pentagon] implemented a multi-phase process to determine whether the photographs certified by Secretary Panetta should be re-certified or released.”

Defense Secretary Ashton Carter “certified” all but 198 of the photographs on November 7.

This time, the government claims an attorney from the Pentagon’s Office of General Counsel reviewed photos individually “based on how likely it was that the public release would result” in the “endangerment” of U.S. citizens, U.S. military forces, or U.S. government employees. Commissioned officers from the Joint Staff, Deputy Director for Special Operations, and Counterterrorism and Detainee Operations offices then reviewed each of the photographs individually.

The work of both the Pentagon attorney and Joint Staff officers was assessed, and then Carter was shown a “representative sample” of the photos to determine whether to sign off on the assessments of the photos.

This may not satisfy the district court. Hellerstein instructed on February 18 [PDF]:

…While I did not hold that there could be no delegation, the Secretary is required, at a minimum, to explain the terms of his delegation so it is the Secretary, and not any subordinate, who takes responsibility for his knowing and good faith Certification that release of a particular photograph would result in the harm envisioned. In order to make such a Certification, the Secretary must demonstrate knowledge of the contents of the individual photographs rather than mere knowledge of his commanders’ conclusions. He may obtain such knowledge either by reviewing the photographs personally or having others describe their contents to him, but he may not rely on general descriptions of the “set” or “representative samples,” such as aggregation is antithetical to individualized review without precise criteria for sampling. [emphasis added]

Previously, Hellerstein concluded Panetta’s certification failed to show why the release of the photos would continue to “endanger the citizens of the United States, members of the United States Armed Forces or employees of the United States Government deployed outside the United States.”

Hellerstein contended different circumstances existed when Panetta renewed the certification in 2012. He agreed with the ACLU that Panetta’s certification should have dealt with each individual photograph and not been a blanket certification to keep all photographs secret. The judge also did not buy the argument from the government that the Islamic State would pose a greater threat if the photographs were released. As Newsweek reported, he contended soldiers and citizens were as “exposed” as they were when the court favored release in 2005.

The district court may recognize this “re-certification” of photos as a part of the government’s scheme to subvert the judicial process. On February 4, Hellerstein told the government it appeared the “government’s conduct reflected a ‘sophisticated ability to obtain a very substantial delay’” in order “to defeat FOIA’s purpose of prompt disclosure.”

“The photos are crucial to the public record,” ACLU Deputy Legal Director Jameel Jaffer previously declared. “They’re the best evidence of what took place in the military’s detention centers, and their disclosure would help the public better understand the implications of some of the Bush administration’s policies. And the Obama administration’s rationale for suppressing the photos is both illegitimate and dangerous.”

Though it has become a tired refrain, the Obama administration insists it is The Most Transparent Administration Ever™ as it commits repeated acts intended to keep indefensible conduct by military or security agencies concealed from the public.