The Obama administration is withholding hundreds, perhaps even thousands of photographs showing the U.S. government’s brutal treatment of detainees, meaning that revelations about detainee abuse could well continue, possibly compounding the outrage generated by the Senate “torture report” now in the public eye.
Some photos show American troops posing with corpses; others depict U.S. forces holding guns to people’s heads or simulating forced sodomization. All of them could be released to the public, depending on how a federal judge in New York rules—and how hard the government fights to appeal. The government has a Friday deadline to submit to that judge its evidence for why it thinks each individual photograph should continue to be kept hidden away.
The photographs are part of a collection of thousands of images from 203 investigations into detainee abuse in Iraq and Afghanistan and represent one of the last known secret troves of evidence of detainee abuse. While the photos show disturbing images from the Bush administration’s watch, it is the Obama administration that has allowed them to remain buried—all with the help of a willing Congress.
The president may have entered office promising a new era of transparency—and was even prepared to release at least 21 of the photos in 2009. But Obama pulled back at the last minute at the urging of his top commander in Iraq, who worried the graphic images could generate a backlash against U.S. troops.
“We’re not dismissive of the fact that some people could react badly to the publishing of the photographs,” said the ACLU’s Jameel Jaffer, the lead lawyer in a decade-long legal dispute with the government over the photos. But this does not mean, he continued, that there should be a “massive heckler’s veto that terrorist organizations can wield over the public’s right to know.”
“The public has a right to know what happened in these military detention facilities,” Jaffer added, “in the same way it has a right to know about what happened at the CIA black sites.”
The photos depict the ways that Americans were treating detainees when they were captured and transported, and the way they were treated in U.S. custody. Former Sen. Joe Lieberman has stated that the government had nearly 2,100 photos from these investigations into mistreatment of detainees.
The ACLU first filed a Freedom of Information Act lawsuit in 2004, demanding government information on both the military’s treatment of detainee treatment and on detainees who died in U.S. custody. The case wound its way through the judicial system. And in September 2008, the U.S. Court of Appeals for the 2nd Circuit ordered the release of a 21-photo subset.
By April 2009, Obama was preparing to disclose those images. An ACLU lawyer at the time called it “a sign that [the Obama administration] is committed to more transparency."
Obama seemed willing, even though the photo trove contained horrors, according to former administration officials, military records, and news accounts at the time.
Some depict U.S. troops posing for “trophy” photos with dead bodies; others, with rifles and pistols held to live detainees’ heads. (At least one soldier serving in Afghanistan tried to excuse his actions by saying he was “joking”; another called the pictures “something cool to remember our time there.”) A third soldier described a different photograph depicting her “as if [she] was sticking the end of a broom stick into the rectum of a restrained detainee.”
A number of these pictures were later revealed to be from the notorious Abu Ghraib detention facility, where U.S. troops famously abused their Iraq captives in the early days of the Iraq War. But the remaining photos are not from Abu Ghraib—they came from investigations into detainee abuse from all around Iraq and Afghanistan.
Top officials—including then-Chairman of the Joint Chiefs of Staff Admiral Mike Mullen—were horrified by the images of alleged abuse that extended far beyond Abu Ghraib.
“Despite our best efforts, a misguided and misled few have managed to tarnish that reputation and breach the very trust we have worked so hard to earn. I am appalled by even the suggestion that someone in an American uniform would behave in such a way,” Mullen later wrote in a memo to America’s military service chiefs and combatant commanders.
“We haven’t all absorbed or applied all the lessons of Abu Ghraib,” he added.
In May 2009, however, the president had an abrupt change of heart. Obama went to the South Lawn of the White House, and told reporters, “The publication of these photos would not add any additional benefit to our understanding of what was carried out in the past by a small number of individuals. In fact, the most direct consequence of releasing them, I believe, would be to further inflame anti-American opinion and to put our troops in greater danger.”
The decision stunned Obama supporters who had believed his assertion that his administration would be the most transparent in history. What caused the president to change his mind?
In the closing dying days of the Bush administration, there were significant negotiations by the Bush administration’s Department of Defense and the Justice Department about what to do about the appellate court’s ruling to release the photos.
After the Obama White House inherited the case, it was first confronted with a decision whether to the release of the photographs in the spring of 2009.
Former administration officials recall that Obama’s team was initially sympathetic to the idea of releasing the small sample of the photos that the ACLU wanted. White House Chief of Staff Rahm Emanuel had no objection. Nor did the president’s counsel. Nor did the Justice Department’s leadership. Nor did the president. Even Defense Secretary Gates, at least for a time, was open to the notion.
But in Iraq, there was a different reaction. According to McClatchy Newspapers, Iraqi Prime Minister Nouri al-Maiki told U.S. officials that “Baghdad will burn” if the photos were released.
Gen. Raymond Odierno, America’s top general on the ground in Iraq, raised strong objections, too. Odierno found a sympathetic ear both in Gates and in the president, who responded positively to the general’s concern that the release of the photos could jeopardize American lives.
Following the president’s change of heart, the Obama administration challenged the release of the photos on national-security grounds. (The White House declined the comment for this story.)
Soon thereafter, Congress passed a law called the Protected National Security Documents Act (PNSDA) to allow the secretary of defense to certify that the publication of certain photographs could endanger the lives of Americans, and in so doing, prevent the release of the photos. The certification, which lasts three years, was renewed by then-Defense Secretary Leon Panetta in 2012. Obama’s nominee for secretary of defense, and Ash Carter, will be confronted with a similar decision in 2015.
In order to withhold the photographs, the secretary of defense must certify that photographs could cause harm to Americans. Panetta did this with a simple, terse statement in 2012, covering all the pictures—as if all the photos were still potential American-killers, despite the passage of time and the withdrawal of troops from Iraq. That struck the ACLU—and the judge in the case, Alvin Hellerstein—as a specious argument. “The government failed to show that it had adequate basis for the certification,” he wrote in August.
Hellerstein has given the government a Friday, Dec. 19 deadline to submit evidence that the secretary of defense has individually certified each photograph to be a danger to national security.
At stake is not just the 21 photos that were originally ordered to be released. As Judge Hellerstein has noted, if the ACLU is successful the government could be forced to disclose the thousands of photographs that stem from those 203 investigations into the alleged mistreatment of detainees in American custody.
Obama’s decision that may have been defensible in 2009, with more than 186,000 American troops at the time in Iraq and Afghanistan. But today, five years later, there are less than a tenth that number serving in those two countries. And while U.S. officials warned about reprisal attacks in response to the “torture report” and other documentation of American atrocities, that backlash has so far failed to materialize.
Which leads to the question: Can the secretary of defense legitimately call the disclosure of every single one of these photos a harm to American troops? And if not, when will the photos be released?
"We have a strong argument that the government hasn't met its burden under the PNSDA, and the principles underlying the Freedom of Information Act favor the release of the photos," argued the ACLU’s Jaffer. “To accept the government's argument, that information about government misconduct should be suppressed whenever there is some risk that someone, somewhere in the world will be upset by it, is a formula for the suppression of all sorts of information that are critical to our democracy."