Judge Orders Release of Abu Ghraib Abuse Photos

In a lengthy, detailed, and at times passionate opinion, Judge Alvin K. Hellerstein, U.S. Army, JAG Corps, 1957-1960, has ruled that the government must release photos taken by one of the US guards at Iraq’s Abu Ghraib prison. The pictures show gross abuse of the detainees.

The government had two main arguments against releasing the photos. The first was that the release would violate the Geneva Convention. The judge made short work of that.

The second was that the release might endanger our troops, by inflaming public opinion in the Arab Muslim world. Here, minus citations, is what the court said to that:

The government argues that the terrorists will use the re-publication of the photographs as a pretext for further acts of terrorism. Plaintiffs, on the other hand, provide the declaration of a scholar on the Middle East who states that, in his opinion, “there is nothing peculiar about Muslim culture in Iraq or elsewhere that would make people react to these pictures in a way different from other people’s reactions elsewhere in the world.” In addition, Professor Famhy suggests that there is a large group of Iraqis, and of Muslims generally, who respond favorably when we show the openness of our society and the accountability of our government officials, and that we would suppress those values and that favorable response by preventing the publication of the Darby photographs.

Our nation does not surrender to blackmail, and fear of blackmail is not a legally sufficient argument to prevent us from performing a statutory command. …

The terrorists in Iraq and Afghanistan do not need pretexts for their barbarism; they have proven to be aggressive and pernicious in their choice of targets and tactics. … [M]y task is not to defer to our worst fears, but to interpret and apply the law, in this case the Freedom of Information Act, which advances values important to our society, transparency and accountability in government.

The interests at stake arises from pictures of flagrantly improper conduct by American soldiers–forcing prisoners under their charge to pose in a manner that compromised their humanity and dignity. … the pictures are the best evidence of what happened, better than words, which might fail to describe, or summaries, which might err in their attempt to generalize and abbreviate. Publication of the photographs is central to the purposes of FOIA because they initiate debate, not only about the improper and unlawful conduct of American soldiers, “rogue” soldiers, as they have been characterized, but also about other important questions as well– for example, the command structure that failed to exercise discipline over the troops, and the persons in that command structure whose failures in exercising supervision may make them culpable along with the soldiers who were court-martialed for perpetrating the wrongs; the poor training that did not create patterns of proper behavior and that failed to teach or distinguish between conduct that was proper and improper; the regulations and orders that governed the conduct of military forces engaged in guarding prisoners; the treatment of prisoners in other areas and places of detention; and other related questions.

Suppression of information is the surest way to cause its significance to grow and persist. Clarity and openness are the best antidotes, either to dispel criticism if not merited or, if merited, to correct such errors as may be found. The fight to extend freedom has never been easy, and we are once again challenged, in Iraq and Afghanistan, by terrorists who engage in violence to intimidate our will and to force us to retreat. Our struggle to prevail must be without sacrificing the transparency and accountability of government and military officials. These are the values FOIA was intended to advance, and they are at the very heart of the values for which we fight in Afghanistan and Iraq. There is a risk that the enemy will seize upon the publicity of the photographs and seek to use such publicity as a pretext for enlistments and violent acts. But the education and debate that such publicity will foster will strengthen our purpose and, by enabling such deficiencies as may be perceived to be debated and corrected, show our strength as a vibrant and functioning democracy to be emulated.

In its most recent discussion of FOIA, the Supreme Court commented that “FOIA is often explained as a means for citizens to know what ‘their Government is up to.’ The sentiment is far from a convenient formalism. It defines a structural necessity in a real democracy.” As President Bush said, we fight to spread freedom so the freedoms of Americans will be made more secure. It is in compliance with these principles, enunciated by both the President and the highest court in the land, that I order the government to produce the Darby photograph that I have determined are responsive and appropriately redacted.

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6 Responses to Judge Orders Release of Abu Ghraib Abuse Photos

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  2. Vince Zitter says:

    My only question is this. What good can come from releasing these photos? And what sick and twisted person wants to see them? We all know that it did happen, and that those who are guilty will hopefully pay the price. Releasing those photos will not change that in any way shape or form.

  3. michael says:

    Holding people higher in the chain of command accountable? Or, as the court put it,

    Publication of the photographs is central to the purposes of FOIA because they initiate debate, … about other important questions as well– for example, the command structure that failed to exercise discipline over the troops, and the persons in that command structure whose failures in exercising supervision may make them culpable along with the soldiers who were court-martialed for perpetrating the wrongs; the poor training that did not create patterns of proper behavior and that failed to teach or distinguish between conduct that was proper and improper; the regulations and orders that governed the conduct of military forces engaged in guarding prisoners; the treatment of prisoners in other areas and places of detention; and other related questions.

  4. Outsider says:

    What good will come of the release of the photos?

    Well, let’s consider that reports of abuse and torture of US “detainees” surfaced as early as December 2001 in Afghanistan, Q1 2002 in Guantanemo Bay, and May 2003 in Iraq. And yet the US media ignored such reports until the Abu Ghriab photos were published in 2004. The international media were not much better. Apparently in the 21st century atrocities don’t enter the public consciousness unless there is visual evidence.

    Unfortunately, without additional visual evidence since the first photos came out, those responsible have essentially gotten away with their war crimes by using the “few bad apples” excuse. Ms. England, who was most prominent in the photos, is going to jail, but those higher up in the ranks are still employed and, in many cases, have been promoted. Despite an avalanche of evidence indicating that what happened at Abu Ghraib was representative of a widespread, systematic regime of intentional torture and dehumanization, most of America seems to believe that this was an exception, not the rule.

    The benefits of releasing these photos — and indeed all other evidence of torture — is that it can raise public awareness and hopefully reduce future torture as a result.

  5. Aidan Maconachy says:

    Outsider, some time ago I got into a fairly heated exchange with Michael and took the view that these allegations only related to a small group of dysfunctional service people, but clearly this thing has wider ramifications and is very real – and thus has the potential to destroy US credibility.

    I think these photos should be revealed.

    If the military has been covering up I want this mask ripped off, and I’m an Iraq war supporter. I don’t want our democracies to be represented by thugs who abuse prisoners in an indiscriminate and gratuitous fashion, seemingly to humiliate and degrade. This is disgraceful and it shames everyone involved in this effort.

    Absolutely, get it out! If it creates short term mayhem on the arab street so be it. At least in the long run those people will feel that the U.S. did the right thing, and held its military up to the highest standards.

    I’m not being naive here. I’m not at all saying that torture in all circumstances should be outlawed. If for example a terrorist has knowledge of the location of a device that is primed to explode in a downtown location and slaughter hundreds, then I think every means must be used to extract information in order to evacuate the citizenry.

    However this type of arbitrary and unfocused thuggery directed at Iraqi detainees is inexcusable, and I think all those who co-operated in this cover-up need to take the heat also.

    When you presume to be the harbinger of freedom and democracy, and you are touting “civilized” values, you better be bloody sure you don’t descend to this level.

  6. charles lee says:

    The door must be left unlocked for those who don’t believe. No one has to look if they don’t want to.
    War is ugly and the more people that see it, will come to understand the hidden meanings that word has.
    There are no rules to war, except for one: don’t get caught.
    We got caught, and we should be ashamed for ourselves and our nation.
    Responsibility belongs to the Commander in Chief. If he is responsible for the success of the military, so is he responsible for the failure. Or am I wrong? Maybe because the President was not there at the moment he is obsolved of these acts? Is that how it works?
    The freedom of the press will enlighten us to ourselves, and those we call our leaders.

    —–

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