Congress Steps In On Torture Photos

Much of what we have learned about Bush administration torture policies has been uncovered as a result of successful Freedom Of Information Act lawsuits pursued by the American Civil Liberties Union.  Beginning in 2004 the ACLU has been seeking the release of photographs and other documents related to the abuse of prisoners in U.S. custody oversees.   A U.S. District Court ordered the release of the photographs in a June 2005 ruling that was later affirmed last September by the Second Circuit Court of Appeals.  Despite initially saying they would not challenge the appellate court order, the Obama administration took a sharp turn to the right and in May asked the Supreme Court to hear an appeal of the Second Circuit decision.

It appears as though the administration may be looking for a Solomon-type solution to the battle over the torture photos at the cost of transparency.  The compromise appears to be as follows: in exchange for dropping the Supreme Court petition challenging the release of the disputed photographs (which show U.S. Soldiers abusing prisoners in Afghanistan and Iraq), lawmakers will pass legislation authorizing the government to continue to keep the photographs hidden. 

On Thursday the House approved, as part of a Department of Homeland Security appropriations measure, an amendment to FOIA that would grant Defense Secretary Robert Gates the authority to withhold any photographs taken between September 11, 2001 and January 22, 2009 for three years if he determines their release would endanger troops and government employees deployed outside of the country.  The legislation now heads to the Senate which may vote on it as early as Thursday.  President Obama has indicated that he would swiftly sign the bill into law once it passes.  To massage the legislative process along, Solicitor General Elena Kagan asked the Court to delay its decision of whether to take up the Obama administration’s appeal since Congress was apparently close to a solution on its own.

The move by Congress, with considerable prodding from the Obama administration, is a troubling development for those hoping that a change in leadership would bring about some transparency to the executive branch.  Furthermore, it appears as though Congress is only too happy to enable this continued drive for secrecy.  By amending FOIA in this way Congress is not only stepping into–and effectively deciding–a current issue in FOIA litigation, it is expressing a considerable lack of confidence in the judiciary’s ability to interpret FOIA and keep secret only those matters that are truly classified.

According to Jameel Jaffer, Director of the ACLU National Security Project, Congress’ actions represent a significant step away from the kind of transparency demanded by FOIA.  “We are deeply disappointed that the House voted to give the Defense Department the authority to hide evidence of its own misconduct, and we hope the Senate will not follow suit. If this bill does become law, the Secretary of Defense should not invoke it. Instead, Secretary Gates should be guided by the importance of transparency to the democratic process, the extraordinary importance of these photos to the ongoing debate about the treatment of prisoners and the likelihood that the suppression of these photos will ultimately be far more damaging to national security than their disclosure would be. The last administration’s decision to endorse torture undermined the United States’ moral authority and compromised its security. The failure of the current administration to fully confront the abuses of the last administration will only compound these harms.”

It is moves like these that make hope hard to come by, but there are some small glimmers to grasp.  For starters, the position advocated by the Obama administration was an abysmal parroting of Bush administration argument that the executive has the right to keep the photographs hidden simply because they pose some, unspecified and undetermined danger to some unidentified and unspecified person.  Had the Supreme Court accepted this position, then FOIA requests would have been gutted permanently as anything the executive deemed “dangerous” could lawfully be withheld from inquiring Americans. 

Furthermore, Secretary Gates may not use this broad grant of authority he is likely to get and decide, as the two lower courts who have head this case already, that unclassified documents cannot be concealed solely on the basis that disclosing evidence of government malfeasance would incite anger at the United States and endanger national security.  That said, this second point is far less likely to happen.  Instead, it looks like the Obama administration will get its way and avoid a Supreme Court embarrassment at the same time.  The question though is at what price?

photo courtesy of takomabibolet via Flicrk


Terrance H.
Terrance Hodgins8 years ago

I especially liked Daylight Chapon's remark about "What if we ignored Hitler"?

Yes indeed. Let's not release the photographs of what the Nazis did in the concentration camps -- it might embarass somebody. Let bygones be bygones. It's old news. Time to move on, forgive and forget...

Patricia E.
Patricia E8 years ago

Thankyou, Rita B. I agree with you that torture demeans the torturer more than the tortured. How horrible to be in that position!
Patty E.

rita b.
Rita B8 years ago

Thank you everyone for your non- partisan remarks. Both the spineless democrats and the shameless republicans have their share guilt for this horrific situation. A few brave souls in both parties have voted against these terrible laws and cover-ups but they are a tiny minority of the ethical.
It is really sad to think that we are doing these things to anyone however I suspect that most of the people subjected to these tortures are just innocents who have been sold for the large monetary rewards we have offered for suspected terrorists.

A while back I heard an interview with the chief interrogator of Sadam Hussain. This man was able to gain a lot of good info. without using any form of torture. He even gave Saddam cookies for his birthday. Sadam cried when the interrogator left. I believe that this demonstates quite well that there other highly effective methods of gaining info from suspects without resorting to torture and many in our security forces concur.

Torture demeans the torturer more than the victem. Another bad result of this is that encourages other coutries to apply torture to anyone they do not like. If they are critized they can say well the US does it so why shouldn't we?

Taz D.
Taz D8 years ago

as i keep havingto inform people who think something's changed... with the words "we don't stand for turture" still fresh on his lips from '60 Minutes'... on the 2nd day after his inauguration, obama authorized the continuation of the CIA rendition program of globaly outsourced disappearance and torture, to the hearty applause of biden. obama again mandated the continuationof renditiona month ago. obama has yet to close gitmo and even tried to halt the release of a teen torture victim there who spent his entire adolescence therein. obama voted like 90 % of all dems in congress on the ears funding, surveillance, patriot axe, military commissions act, animal and environmental terroristact (co-sponsored by hillary and sensenbrenner), jane harman's insane 'violent radicalization and grassroots terrorism prevention act' (which would put jefferson and franklin into gitmo...) obama has protected the war criminals and torturers and still does. obama intends to keep 50,000 troops and 100,000 mercenary contractors in occupied iraq eternally while he expands the afpak wars, backs mr. death squad uribe in colombia; refuses to extradite posada, the known CIA terrorist bomber of the cuban jetliner. get the picture? if you now go after the bush-cheney war criminals and torturers; you must also go after obama. personaly, i think that execs/congress/judges supporting any crimes should be tried, even for supportive votes.

Charlene R.
Charlene Rush8 years ago

The fear is, in giving our enemies, an excuse to do the same, or worse, to our captured soldiers.

We, as voters, are partly responsible for this mess. In our previous administration, we elected, not just once, but twice, these MADMEN, thinking that they would evoke revenge. 'Revenge' is the key word, as justice had nothing to do with it.

Thom L.
Thom L8 years ago

without transparency there is no truth, without truth there is no democracy. if we don't admit our mistakes, we must not believe they are.

Meredith H.
Meredith H8 years ago

What if revealing the photos also revealed in no uncertain terms just what Bush/CHeney accomplished in their tenure?
Just a thought.

Cosmic Surfer
Jan Strain8 years ago

We don't need to worry about what is being contrived as propaganda - we gave them facts to use against us and it was not released under FOIA. TO undo the damage? transperancy, responsibility, accountability

Cosmic Surfer
Jan Strain8 years ago

Still people are only looking deeply into the at the glossy surface of this issue -
@David Y. Count the years..Check your laws about the statute of limitations...One GITMO detainee could not bring suit on torture because the time ran out.
Has nothing to do with protecting the troops. There are enough photos out already to show torture; enough to prove it to the masses; enough for propaganda what there is NOT is substantial specific evidence for ndividuals to sue & THAT IS THE POINT.
@Carol H-what other countries do or think is irrelevant in a conversation about the justification for withholding evidence of war crimes & atrocities committed by the Bush & Cheney cabal. As far as doing to us - when was the last time you heard of a US family terrorized by an occupying army that ran the entire family in, tortured & molested every member from child to mother in front of the rest of the family in order to get "intel"? THOSE are just some of the photos & tapes and testimony being withheld!
This is not just men at GITMO - there were over 112 black sites - many may still be open (Bagram, Gitmo and a few in IRAQ are still KNOWN to be). When was the last time an occupying army hit a major city in this country with White Phosphorus? Actually only 2 countries have done that in the past few decades - US & ISRAEL.
We don't need to worry about what is being contrived as propaganda - we give them facts to use against us. TO undo the damage? transperancy, respo

Daylight Chapon
Lisa Kiran8 years ago

They think we'll just forget about the horrors but history is the study of man's wrongs. What if we ignored Hitler?