Pentagon Releases 198 Photos Relating to Detainee Abuse in Long-Running ACLU Lawsuit

WASHINGTON — In response to a Freedom of Information Act lawsuit filed more than a decade ago by the American Civil Liberties Union, the Defense Department has released 198 photographs related to prisoner abuse at U.S. military facilities in Iraq and Afghanistan.

The photos mostly show close-ups of body parts like arms, legs, and heads, many with injuries. There are also wider shots of prisoners, most of them bound or blindfolded. They are part of a larger collection of some 2,000 photographs, most of which the government refuses to release.

Last March, a federal district court ordered that all of the photos be released. The government appealed, and earlier this month the appeals court returned the case to the district court, where the ACLU is continuing to fight for the full collection’s release.

“The disclosure of these photos is long overdue, but more important than the disclosure is the fact that hundreds of photographs are still being withheld,” said ACLU Deputy Legal Director Jameel Jaffer. “The still-secret pictures are the best evidence of the serious abuses that took place in military detention centers. The government’s selective disclosure risks misleading the public about the true extent of the abuse.”

The ACLU filed the FOIA request in 2003 and sued to enforce it in 2004 after media organizations published photographs showing prisoner abuse at Iraq’s Abu Ghraib prison. The Bush administration admitted that it possessed other prisoner abuse photographs but refused to release them, contending that doing so would provoke violence. The district court rejected that argument in 2005, and the Second Circuit Court of Appeals upheld the decision in 2008.

“In releasing the photos, the Defense Department points to the punishment of a handful of low-level soldiers, but the scandal is that no senior official has been held accountable or even investigated for the systemic abuse of detainees,” said Alex Abdo, an ACLU staff attorney. “What the photos that the government has suppressed would show is that abuse was so widespread that it could only have resulted from policy or a climate calculated to foster abuse. That is why the government must release all of the photos and why today's selective disclosure is so troubling.”

In 2009, the Obama administration said that it would release the photographs. But as it prepared to do so, Congress carved out an exception to the FOIA, which allowed the government to keep photos secret if the secretary of defense certified that their release would jeopardize national security. Then-Defense Secretary Robert Gates issued a blanket certification for hundreds of photos in 2009, and his successor, Leon Panetta, issued an identical certification in 2012. In the FOIA case, the ACLU challenged these certifications as unsupported and overbroad.

In March 2015, U.S. District Court Judge Alvin Hellerstein ruled in favor of the ACLU, ordering the release of all of the photos after finding that such a categorical certification was insufficient to justify the withholding of the images. He wrote that Panetta’s certification was “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 government appealed.

In November 2015, Defense Secretary Ashton Carter certified the photos again, with the exception of the 198 released today. The Defense Department stated that it had given the photographs more individualized consideration, a claim the ACLU says falls short of the district court’s order that every photo be evaluated individually.

On January 14, the appeals court granted the government’s request to send the case back to the district court rather than hear the pending appeal. The court has set a schedule for briefs to be submitted over the next two months.

The attorneys on the case are Jaffer and Abdo of the ACLU and Lawrence Lustberg and Ana Munoz of Gibbons PC.

The photos are at:
https://www.aclu.org/other/aclu-v-dod-198-photos-previously-certified-under-protected-national-security-documents-act

A summary of what we know about the contents of the photos is at:
https://www.aclu.org/blog/speak-freely/picture-torture-worth-thousand-reports

The district court’s March 2015 decision ordering the photos’ release is at:
https://www.aclu.org/sites/default/files/field_document/abuse_photos_foia_order.pdf

Additional case documents are at:
https://www.aclu.org/cases/aclu-v-department-defense