The United States cannot conceal pictures of abusive treatment of detainees by its soldiers in Iraq and Afghanistan by saying their release might cause enemies to hurt someone, a federal appeals court said Monday in ordering the release of 20 photographs.
The 2nd U.S. Circuit Court of Appeals agreed with a 2006 ruling by Judge Alvin K. Hellerstein ordering the release of the pictures to the American Civil Liberties Union. Hellerstein had ordered identifying facial features be removed from the pictures.
The color photographs were taken by servicemembers in Iraq and Afghanistan. The government has opposed the release of pictures of abuse, saying they would incite violence against U.S. troops in Iraq and provoke terrorists.
The Freedom of Information Act allows restrictions when images could reasonably be expected to endanger someone's life or safety, but the appeals court said that exemption was meant for instances where threats were specific.
"It is plainly insufficient to claim that releasing documents could reasonably be expected to endanger some unspecified member of a group so vast as to encompass all United States troops, coalition forces and civilians in Iraq and Afghanistan," the appeals court said.
Specific person must be cited
In the future, it said, a government agency must identify at least one person who could be harmed with reasonable specificity if materials are made public.
ACLU attorney Amrit Singh called the decision "a resounding victory for the public's right to hold the government accountable."
Government lawyers had no comment on the ruling, spokeswoman Janice Oh said.
The 2nd Circuit noted that the government earlier tried to use the same argument to prevent the release of 87 photographs and other images of detainees at detention facilities in Iraq and Afghanistan, including Abu Ghraib prison in Iraq.
International outrage resulted when photographs from the Iraqi prison showing physical abuse and sexual humiliation of inmates were revealed. One picture showed a naked, hooded prisoner on a box with wires fastened to his hands and genitals.
The government dropped its appeal related to those photographs after they were made public over the Internet.
Singh said the government had long argued that the abuse at Abu Ghraib was isolated and was an aberration.
"These photographs depict abuse at locations other than Abu Ghraib," she said of the 20 pictures that the court ordered for release. "Their release is to hold government accountable for torture policies and bring an end once and for all to the abuse of prisoners."
Singh said the government has indicated it has more photographs that were not part of the litigation.
'Remote possibilities' not good enough
The government had gone far beyond the intent of Congress by using the exemption to attack far-reaching and speculative national security concerns, the appeals court said.
"Even remote possibilities can become reasonable to expect to befall at least one member of a large enough group," it said. "An expert could in good faith claim that it is reasonable to expect that disclosure of any number of documents could endanger the life or physical safety of at least one person in the world."
The appeals court also rejected arguments that the pictures should be withheld because they would embarrass or humiliate the prisoners.
It noted that the U.S. government widely disseminated photographs of prisoners in Japanese and German prison and concentration camps after World War II even though they depicted emaciated prisoners, corpses of prisoners and powerless and subjugated detainees.
"Yet the United States championed the use and dissemination of such photographs to hold perpetrators accountable," the court said.