The horrific images from Abu Ghraib prison still linger in America's consciousness over a decade after their release. But there are thousands more photos of detainee abuse and torture that the government has long concealed from the public, for fear of violent repercussions. Bob talks with the ACLU's Jameel Jaffer, who says the prospect of violence is a faulty argument for government secrecy about its own misconduct.
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Bob: This is On the Media, I’m Bob Garfield. ISIS keenly understands the power of horrific images to shock, intrigue, and in some cases, provoke. So does the US government, which is why, for the past decade, it’s been withholding from the public thousands of images of prisoner abuse and torture taken at detention centers across Iraq and Afghanistan. While the photos from Abu Ghraib -notably A “hooded man” hooked to electric wire -- still linger in America’s consciousness, those who’ve seen this secret cache of photos say they’re even more disturbing, and potentially inflammatory. The American Civil Liberties Union has been battling with the government to release the pictures since 2004, after the first Abu Ghraib images were leaked to the press. Jameel Jaffer, deputy legal director of the ACLU, says the Obama administration agreed to release the photos in 2009, but then, congress got involved.
Jaffer: that was all set to happen, but senators McCain and graham and Lieberman introduced legislation to give the secretary of defense authority to retroactively carve out photographs like these from the scope of the Freedom of Information Act. In the wake of the passage of that legislation, the administration essentially changed its mind and said, we now have new authority to withhold the photos and we're going to withhold the photos. And the case was sent back to the district court, to the same judge who had originally ordered the photos released, and we have been litigating before that judge for the last few years.
Bob: The rational for withholding the images is and has always been that they are so incendiary that they could endanger Americans abroad and also national security in general.
Jaffer: Right. That's essentially the argument the Bush administration made and now the Obama administration is making is that these photos could be used as propaganda, could complicate diplomatic relationships, and could provoke violence against american troops and american civilians. Obviously those aren't arguments that anyone should easily dismiss. But on the other hand, you could make those kinds of arguments about a lot of information that's been released over the last decade, including CIA black sites and Guantanamo. And if you sort of accept the principle that the government can withhold information whenever the release of that information would be incendiary, there's no reason to believe that that kind of principle could be limited to photographs like this. You know, the front page of the New York Times and the Washington Post on an almost daily basis contains descriptions of american policies that could be provocative to some of our enemies.
Bob: And in fact, as you have observed, the administration is talking out of both sides of its mouth on this very question. In reacting to the Charlie Hebdo murders in Paris and the apparent North Korean hack of Sony over the film "The Interview," the administration has enunciated very clear lines against censoring free speech because somebody might be offended.
Jaffer: Everybody said, "We Are Charlie Hebdo," right? Essentially people said the same thing in connection with the North Korea hacks - that we shouldn't let some dictator dictate which movies get seen here in the United States. And I think that's exactly the right response. But it does seem jarring then to read the administration's briefs in a case like this one involving the torture photos where the administration essentially says that terrorists across the world are going to dictate what Americans get to see relating to their own government. These photos are about what took place in military detention centers in our names. There's something extremely disturbing about the idea that our government should be able to use the prospect of violence by others overseas in order suppress evidence of its own misconduct or misconduct by government agents.
Bob: The notion, although it has long since been impeached by textual evidence that you're describing, I think persists that Abu Ghraib was a few bad apples - a few enlisted people and noncoms who zealously and maybe pathologically exceeded their authority. What these pictures demonstrate because they were taken at a number of sites around the Mideast and central asia, is that this was policy.
Jaffer: That's right and if they show patterns of abuse I think they would corroborate the theory that the abuse was at least to some extent the result of policy decisions. I think maybe even more important, the photographs would humanize the prisoners. We talk about things like the "ticking bomb hypothetical" which has really got, in my view, more airtime than it deserves. But those kinds of hypotheticals are from the realm of the abstract and if you have a photograph showing a prisoner who is actually in a stress position or a hooded prisoner, people will inevitably understand better what it actually meant to adopt these kinds of policies. If you think of the photographs of the concentration camps after world war II or the photos of civilians fleeing from napalm bombing, or even the Eric Garner video here in New York or the Rodney King video from LA, these kinds of visual images are what have provoked policy changes.
Bob: The occasion for this conversation is a federal judge's ruling which may finally yield the release of these photos. What's going to happen next.
Jaffer: We had a hearing on Wednesday before the district court - the same judge who ordered the release of the photographs in 2005 - and he has essentially given the government one week to justify the withholding of the photos on an individualized basis. In other words they have to go through this stack of 2,000 photos and tell the judge, why does this one have to be withheld. And that's something that the government has resisted. So we are expecting that the judge will order the government to release the photos and the government will then be confronted with the question of whether to appeal. We're still hopeful that the government will change its view.
Bob: Getting back to the government's rationale for withholding these images - lets just say it isn't fear of embarrasment or prosecution. Lets just say it is just a genuine fear of violence. It's not an insane worry. Even in the ISIS beheading videos where the victims are made to wear orange jumpsuits - that is a direct reference to the orange jumpsuits that the detainees at Guantanamo Bay are wearing. It is exactly the kind of violent retribution that the government fears, no?
Jaffer: Right but would it be better if we didn't know that the detainees had been mistreated at Guantanamo? Would it better if we hadn't seen the original Abu Ghraib photographs? You know, I think that we often think of secrecy as some evil that the government perpetrates on the citizenry. It can also be a tool that we use consciously or subconsciously to protect ourselves from knowledge that is inconvenient. At some level people don't want to confront what's in these photos. They might require us to think more seriously about what should be done or what should have been done in response to abuses of this kind. The Obama administration and before that the Bush administration - they've consistently argued in court that the victims of these policies shouldn't have an opportunity to bring civil cases. They have not charged any senior official with any crime. There's been no effort to rehabilitate prisoners who are tortured or even acknowledge the names of the prisoners. There's a kind of collective denial that's going on and our hope would be that the release of photos like this would force us to confront things that we have been reluctant to confront until now.
Bob: Jameel, many thanks.
Jaffer: Thank you.
Bob: Jameel Jaffer is deputy legal director of the ACLU and director of its Center for Democracy.