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Judge orders release of detainee abuse photos

A federal judge has ordered the release of about 2,000 photos depicting the abuse of prisoners in U.S. military custody—images that President Barack Obama declared years ago should be kept from public view.

New York-based U.S. District Court Judge Alvin Hellerstein said he told government lawyers last month that he viewed a certification then-Defense Secretary Leon Panetta signed in 2012 as not legally adequate to withhold the photos. The judge called the finding "deficient because it was not sufficiently individualized and it did not establish the Secretary's own basis for concluding that disclosure would endanger Americans."

The judge offered the Obama administration an opportunity to provide a more detailed certification by this week, but officials declined to meet that deadline, while insisting that a re-certification is underway on a somewhat longer timeline.

In an order released Friday (and posted here), Hellerstein suggested the administration was stalling in the lawsuit, filed by the American Civil Liberties Union and other groups seeking to expose more information about abusive treatement of prisoners in the custody of the U.S. military in places like Afghanistan and Iraq.

"The Government's refusal to individual certifications means that the 2012 Certification remains invalid and therefore cannot exempt the Government from responding to Plaintiffs FOIA requests," Hellerstein wrote in a sharply-worded order Friday. "The Government has known since August 27, 2014 that I considered a general, en grosse certification inadequate. Certainly, that has been clear since the hearing on February 4, 2015. I commented on February 4th that it appeared the Government's conduct reflected a 'sophisticated ability to obtain a very substantial delay,' tending to defeat FOIA's purpose of

prompt disclosure."

The case came to prominence in the early months of Obama's presidency, when the administration agreed to give up the court fight against release of the photos, but reversed course on Obama's personal order after Gen. Ray Odierno told the president that the disclosure could put American soldiers at risk.

Then-White House Chief of Staff Rahm Emanuel hammered out a deal with Congress that allowed the Secretary of Defense to remove the photos from coverage under the Freedom of Information Act by issuing a certification that releasing them could endanger American lives. Then-Defense Secretary Gates did one certification in 2009, effectively blocking the photos' release. Panetta did another in 2012, but Hellerstein bought the ACLU's argument that it didn't reflect the level of detail and analysis needed to put the photos beyond the reach of FOIA.

The judge did agree Friday to delay the effect of his disclosure order for 60 days. If authorities still want to hold back some or all of the photos, they'll have to file an appeal and seek a stay from the 2nd Circuit U.S. Court of Appeals.

A Justice Department spokeswoman declined to comment, noting that the litigation remains pending.

The ACLU's Jameel Jaffer said his group will keep fighting to unmask the images.

“The photos are crucial to the public record. 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," Jaffer said. "The Obama administration’s rationale for suppressing the photos is both illegitimate and dangerous. To allow the government to suppress any image that might provoke someone, somewhere, to violence would be to give the government sweeping power to suppress evidence of its own agents’ misconduct. Giving the government that kind of censorial power would have implications far beyond this specific context.”

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