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.