New York // After a wave of anger over brutal interrogation methods used by the CIA, US officials face another backlash if a federal judge orders the release of decade-old photos reportedly showing the torture, including rape, of detainees at US military facilities in Iraq and Afghanistan.
Since 2004, both the George W Bush and Barack Obama administrations have used various legal means to withhold as many as 2,100 images that are potentially more explosive than the original Abu Ghraib photos.
Mr Obama argued in 2009 that their disclosure would “inflame anti-American opinion ... put our troops in greater danger” and “have a chilling effect on future investigations” of abuse.
But in October, a federal judge in a lawsuit brought by the American Civil Liberties Union gave the justice department until next Friday to give a photo-by-photo rationale justifying their suppression. At the earliest, Judge Alvin Hellerstein will not decide on whether some or all of the redacted images are to be released publicly until January 20, when he will meet again with both sides.
At least parts of the US administration’s rationale will probably remain sealed from the public.
The decade-long saga of the photos comes to a head just as a scathing declassified summary of a report by Democrats on the senate intelligence committee provided new details about the CIA’s torture of suspected Al Qaeda militants detained between 2001 and 2007 and reignited calls for accountability and even prosecution of Bush-era officials. The report said nearly a quarter of those arrested were cases of mistaken identity or bad intelligence. Thirty-nine of the 119 detainees in the “rendition, detention and interrogation” programme were subjected to what the CIA calls “enhanced interrogation techniques”.
Former CIA officials and its current director, John Brennan, have said that the years after 2001 required extraordinary measures, and that only a small number of interrogators exceeded the expanded legal bounds of detainee treatment permitted by the justice department after the September 11 attacks. No CIA or Bush administration official has faced punishment for the treatment of the CIA detainees, and a separate investigation into similar abuses by military personnel at US bases has seen only a handful of low-ranking soldiers prosecuted.
But the unreleased photos were taken from at least seven US military bases under the command of different officers during the occupations of Iraq and Afghanistan, where tens of thousands of detainees were held, and proponents of their disclosure say they show that the abuse by military personnel was also a result of official policy.
Soldiers tried for the prisoner abuse at Abu Ghraib prison in Iraq said they were following orders from commanding officers, and one soldier who testified in 2005 said a CIA officer ordered him to “soften up” detainees.
“These photos we’re told show mistreatment from facilities throughout Afghanistan and Iraq, not just Abu Ghraib, and I think they would once and for all prove that mistreatment at the hands of the military was widespread, not isolated,” said Alex Abdo, an ACLU attorney working on the lawsuit. “If we want to ensure that these abuses never reoccur then having some form of accountability is necessary.”
Mr Obama issued an executive action in 2009 outlawing the interrogation methods, but that can be reversed by a future president if legislation is not passed banning the methods. Mr Brennan, speaking on the senate committee report on Thursday, said that while the interrogation methods ware not being used any longer, “I defer to the policymakers in future times when there is going to be the need to be able to ensure that this country stays safe if we face a similar type of crisis.”
The photos would be even more powerful than the words in the senate report, Mr Abdo said. “They would make clear more than anything could the nature of the misconduct that took place.”
The photos are reported to depict, among other abuses, the rape of a female detainee by a US soldier and the rape of an Iraqi boy by an army translator. In 2009, the US officer who led the investigation into abuse at Abu Ghraib, Major General Antonio Taguba, told Britain’s Telegraph newspaper that the unreleased photos “show torture, abuse, rape and every indecency”.
In 2009, congress passed a law allowing the administration to keep the photos secret if the secretary of defence gave a certification, valid for three years, that their release would harm Americans. The last certification was made by the then defence secretary Leon Panetta in 2012.
But in August, Judge Hellerstein decided that a single justification for withholding all the photos – which he has seen – was insufficient, and that for the photos to remain secret until 2015, the government must prove for each individual photo how its release of would endanger national security. The justification must be grounded in the “snapshot” of 2012, when the last certification was made, but should take into account developments since then, the judge said.
With 1,600 US troops back in Iraq after a complete withdrawal in 2011, the government’s argument that the images could endanger lives might hold more weight. But opponents say the fact that detainees were tortured has been well known and Al Qaeda and ISIL militants are already highly motivated to kill Americans, especially as the US targets them with bombs in Iraq and Syria.
The argument that disclosures would put Americans at risk was questioned after the release of the senate report. “Terrorists might use the report’s re-identification of the practices as an excuse to attack Americans, but they hardly need an excuse for that. That has been their life’s calling for a while now,” Senator John McCain, a torture victim and rare Republican supporter of the report, said on Tuesday.
Critics also argue that a full accounting of the abusive practices would show that the US is serious about its pledge not to use them again, and that keeping them from the public would undermine such claims and allow terrorists to effectively prevent government transparency on its legacy of torture. “The logic that the evidence of misconduct is too powerful to release to the American public has it exactly backwards,” Mr Abdo said.
While the US judiciary has generally sided with Washington on national security issues, by demanding a more detailed justification, Judge Hellerstein — who has been presiding over the lawsuit since 2004 — may prove to be increasingly impatient with the government’s argument. He previously recommended redacted versions of the images that could be released, which the government accepted before blocking them.
National security legal experts say the release of the senate committee’s report summary, which has not yet triggered violent protests or attacks against US troops, could make it more difficult for the government to justify withholding the photos.
“I think they have a harder road to argue that there is a security problem that’s going to be there,” said Benjamin Davis, associate professor of law at the University of Toledo law school.
If the judge does rule to release the photos, the justice department lawyers will immediately appeal, Mr Davis said, and the case could reach the supreme court.
tkhan@thenational.ae