New Images of Abuse
Why Mr. Obama should lose a battle with the ACLU

Friday, May 15, 2009

THE IMAGES of American soldiers subjecting detainees at the Abu Ghraib prison in Iraq to abusive and degrading treatment shocked the country into a kind of moral and legal soul-searching that continues to this day. The photographs, first published in 2004, provoked outrage and triggered investigations by documenting ugly and questionable acts that until then were dismissed by some as mere abstractions or allegations. The disclosures were painful, disturbing, humiliating and ultimately necessary to set the nation on a corrective course.

Five years later, the Obama administration is confronted with its own dilemma: whether to release additional photographs from roughly the same period that are said to depict prisoner abuse beyond Abu Ghraib and that were collected as part of a military investigation into detainee treatment. The U.S. Court of Appeals for the 2nd Circuit in New York sided with the American Civil Liberties Union in its Freedom of Information Act lawsuit to compel disclosure. (The Washington Post Co. joined a friend-of-the-court brief supporting the ACLU.)

The administration struck a deal with the ACLU this year, agreeing to make public a small set of such photographs, but President Obama reversed course this week. The president offered compelling arguments, including his belief that "the most direct consequence of releasing" the photographs "would be to further inflame anti-American opinion and to put our troops in danger." As a legal basis for withholding the photographs, the administration could cite the provision of FOIA that allows the withholding of confidential "records or information compiled for law enforcement purposes" if the information "could reasonably be expected to endanger the life or physical safety of any individual." The federal appeals court in New York rejected this argument, but its interpretation of the provision was narrow and could be the subject of an appeal by the Justice Department. The administration, which is exploring other legal avenues, has until June 9 to decide whether to ask the Supreme Court to hear the matter.

The ACLU's criticism of the president as being "complicit with the torture that was rampant during the Bush years" is as inaccurate as it is unfair; witness the administration's recent release and repudiation of Justice Department legal opinions justifying enhanced interrogation techniques.

But concerns about secrecy are legitimate, and the photographs should be made public. We have argued that Mr. Obama should appoint an independent commission to look into all aspects of detention and interrogation in the Bush era, including the ongoing arguments over the efficacy of "enhanced interrogation techniques," congressional notification and the techniques' lasting effects on detainees. Such a commission would have the power to gather all facts, documents and testimony -- and yes, photographs -- and make them public in a report that would fairly put events in context and help explain how the country came to adopt the questionable policies that gave rise to the disturbing images in the first place.

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