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Fall 2008 Bulletin
FOIA and Access
Detainee Abuse Photos Ordered Released
The 2nd Circuit U.S. Court of Appeals ruled Sept. 22, 2008 that the Department of Defense cannot withhold 21 photographs depicting abusive treatment of detainees in Iraq and Afghanistan under the Federal Freedom of Information Act (FOIA), 5 U.S.C. § 552.
The decision in American Civil Liberties Union v. Department of Defense, 543 F.3d 59 (2nd Cir. 2008), affirmed a lower court’s rejection of the government’s arguments that the photographs fall under FOIA exemptions meant to protect personal privacy and safety. The unanimous ruling by the three-judge panel found that the federal district court’s order to redact personally identifying elements of the photographs were sufficient to protect the privacy of those pictured, and that the government failed to meet the law’s requirement to identify specifically whose life or physical safety the photos’ release would endanger.
According to the 2nd Circuit opinion, the American Civil Liberties Union (ACLU) and several other groups first filed a FOIA request in October 2003 with the Defense Department and other federal agencies for the release of records related to the treatment and death of prisoners held in U.S. custody abroad following Sept. 11, 2001 and related to the so-called “rendering” of some prisoners to countries known to use torture. The ACLU received no records in response to its request and filed suit against the agencies in federal district court in June 2004.
The ACLU lawsuit focused on photographs and videos depicting U.S. soldiers at detention facilities in Afghanistan and Iraq, including Abu Ghraib prison, abusing detainees, often by forcing them to strip naked and pose in what the 2nd Circuit opinion described as “dehumanizing, sexually suggestive ways.”
On Sept. 29, 2005, Judge Alvin K. Hellerstein of the Southern District of New York ordered the release of 74 photographs and three videos, rejecting the government’s argument that the records could be withheld according to FOIA exemptions 6, 7(C), and 7(F). Exemption 6 applies to “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;” 7(C) applies to “records or information compiled for law enforcement purposes … [whose release] could reasonably be expected to constitute an unwarranted invasion of personal privacy;” and 7(F) applies to “records or information compiled for law enforcement purposes … [whose release] could reasonably be expected to endanger the life or physical safety of any individual.” In addition to the personal privacy argument, the government argued that the release and dissemination of the photographs could reasonably be expected to incite violence against U.S. or coalition troops or civilians in Iraq and Afghanistan.
In his September 2005 ruling, Hellerstein said that appropriate redactions could protect individuals’ privacy, and that the public interest in the records’ disclosure outweighed the remaining privacy concerns. In regards to the government’s assertion that exemption 7(F) barred the records’ disclosure, an argument the Defense Department added two months after the oral arguments in the case were heard, Hellerstein did not directly address the language of the statute, stating that “the core values that exemption 7(F) was designed to protect are not implicated by the release of the photographs.” (For more on the ruling, see “ACLU v. Department of Defense” in the Fall 2005 Silha Bulletin.)
According to the 2nd Circuit opinion, when the government’s appeal of the district court ruling was pending in March 2006, many of the Abu Ghraib photos were published on the Internet by a third party. The government then withdrew its appeal but withheld 29 other photographs which were taken at other locations in Iraq and Afghanistan which did not depict detainees nude or in forced poses, but which had nonetheless led to disciplinary action for the soldiers involved. The government again cited FOIA exemptions 6, 7(C), and 7(F) in withholding the photographs.
In June 2006 Judge Hellerstein relied on his reasoning in the earlier case to order that 21 of the additional 29 photographs be released, and the Department of Defense again appealed. (See “Federal Court Orders Additional Detainee Photos Released” in the Fall 2005 Silha Bulletin.)
The Sept 22, 2008 2nd Circuit decision was written by District Judge John Gleeson, who was sitting by designation, and was joined by circuit judges Joseph McLaughlin and Peter Hall. The decision echoed Judge Hellerstein’s reasoning on exemptions 6 and 7(C), but more directly addressed the language of exemption 7(F), which was the government’s lead argument on the appeal.
According to the opinion, the government argued that it need not specifically identify the individuals whose safety or lives were endangered by the photos’ release, because the term “any individual” in exemption 7(F) did not require it. The court disagreed, saying the term “may be flexible, but is not vacuous.”
The court opinion includes a lengthy discussion of the U.S. Supreme Court’s interpretation of the term “any” in various statutes, as well as an examination of the language of other FOIA exemptions and the legislative history of exemption 7(F). The 2nd Circuit said “While all harms in the end are suffered by individuals, there is a crucial difference between a showing that disclosure ‘could reasonably be expected to endanger life or physical safety’” which was essentially what the government argued, “and exemption 7(F)’s requirement that disclosure endanger the life or physical safety of any individual.”
Thus, the court held that “in order to justify withholding documents under exemption 7(F), an agency must identify at least one individual with reasonable specificity and establish that disclosure of the documents could reasonably be expected to endanger that individual.” The court said that although the government need not name each and every individual who might be harmed if the photographs are released, “saying that the government does not need to identify an individual by name does not imply that the government does not need to identify an individual at all, or that the government may identify an individual only as being a member of a vast population.”
The court also observed that although the government argued that the records should be exempt under 7(F) in order to safeguard national security, it had not argued that the records were exempt from FOIA under section 1(A), the national security exemption, covering records that are “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy.”
The court said “The existence of separate standards for information threatening harm to national security undercuts the defendants’ asserted construction of exemption 7(F). It would be anomalous if an agency that could not meet the requirements for classification of national security material could, by characterizing the material as having been compiled for law enforcement purposes, evade the strictures and safeguards of classification and find shelter in exemption 7(F) simply by asserting that disclosure could reasonably be expected to endanger someone unidentified somewhere in the world.”
In addition to the exemptions, the government argued that FOIA should be read to be consistent with the Third and Fourth Geneva Conventions, which provide that prisoners of war must be protected against acts of violence, intimidation, threats, insults, and public curiosity, and release of the photographs would violate these conventions. But the court observed that the government has not been historically consistent in its treatment of prisoner photographs, pointing out that at the end of World War II, the United States government widely disseminated photographs of prisoners in Japanese and German prison and concentration camps, which “depicted detainees in states of powerlessness and subjugation similar to those endured by the detainees depicted in the photographs at issue here. Yet the United States championed the use and dissemination of such photographs to hold perpetrators accountable.”
ACLU attorney Amrit Singh called the decision “a resounding victory for the public’s right to hold the government accountable,” according to The New York Sun on September 23. Singh continued, “The Bush administration has consistently maintained that what happened at Abu Ghraib was the work of a few rogue soldiers. Well, that’s not true, because it was happening elsewhere.” According to The Associated Press (AP), Singh said the government has indicated it has more photographs that were not part of the litigation.
The AP reported November 9 that the government has asked all 12 2nd Circuit judges to review the case en banc, saying it is of “exceptional importance.”
– Patrick File
Silha Fellow and Bulletin Editor
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