In a letter from the Justice Department to a federal judge yesterday, the Obama administration announced that the Pentagon would turn over to the American Civil Liberties Union 44 photographs showing detainee abuse of prisoners in Afghanistan and Iraq during the Bush administration.
The photographs are part of a 2003 Freedom of Information Act request by the ACLU for all information relating to the treatment of detainees — the same battle that led, last week, to President Obama’s decision to release memos from the Bush Justice Department’s Office of Legal Counsel providing legal justifications for harsh interrogation methods that human rights groups call torture.
Courts had ruled against the Bush administration’s attempts to keep the photographs from public view. ACLU attorney Amrit Singh tells ABC News that "the fact that the Obama administration opted not to seek further review is a sign that it is committed to more transparency."
Singh added that the photographs "only underscore the need for a criminal investigation and prosecution if warranted" of U.S. officials responsible for the harsh treatment of detainees.
But some experts say the move could have a chilling effect on the CIA even beyond President Obama’s decision last week to release the so-called "torture memos."
Calling the ACLU push to release the photographs "prurient" and "reprehensible," Dr. Mark M. Lowenthal, former Assistant Director of Central Intelligence for Analysis and Production, tells ABC News that the Obama administration should have taken the case all the way to the Supreme Court.
"They should have fought it all the way; if they lost, they lost," said Lowenthal, who retired from the Agency in 2005. "There’s nothing to be gained from it. There’s no substantive reason why those photos have to be released."
Lowenthal said the president’s moves in the last week have left many in the CIA dispirited, based on "the undercurrent I’ve been getting from colleagues still in the building, or colleagues who have left not that long ago."
"We ask these people to do extremely dangerous things, things they’ve been ordered to do by legal authorities, with the understanding that they will get top cover if something goes wrong," Lowenthal says. "They don’t believe they have that cover anymore." Releasing the photographs "will make it much worse," he said.
Even though President Obama has announced that the Justice Department will not prosecute CIA officers who were operating within the four corners of what they’d been told was the law, Lowenthal says members of the CIA are worried. "They feel exposed already, and this is going to increase drumbeat for an investigation or a commission" to explore detainee treatment during the Bush years, he said. "It’s going to make it much harder to resist, and they fear they’re then going to be thrown over."
The Bush administration argued that releasing these photographs would violate US obligations towards detainees and would prompt outrage and perhaps attacks against the U.S. On June 9 and June 21, 2006 judges directed the Bush administration to release 21 photographs depicting the treatment of detainees in Iraq and Afghanistan, and last September, the Second Circuit Court affirmed that decision.
The Bush administration had argued that an exemption from FOIA was needed here because of the exemption for law enforcement records that could reasonably be expected to endanger “any individual." The release of the disputed photographs, the Bush administration argued, will endanger United States troops, other Coalition forces, and civilians in Iraq and Afghanistan.
But the court found that the exemption was not intended "as an all-purpose damper on global controversy."
The Bush administration had also argued that releasing the photographs would violated the Geneva Conventions, which protect prisoners of war and detained civilians “against insults and public curiosity." The court ruled that the Geneva Conventions "do not prohibit dissemination of images of detainees being abused when the images are redacted so as to protect the identities of the detainees, at least in situations where, as here, the purpose of the dissemination is not itself to humiliate the detainees."
Moreover, the court found that releasing "the photographs is likely to further the purposes of the Geneva Conventions by deterring future abuse of prisoners."
"There is a significant public interest in the disclosure of these photographs," the court ruled. "The defendants concede that these photographs yield evidence of governmental wrongdoing, but nonetheless argue that they add little additional value to the written summaries of the depicted events, which have already been made public. This contention disregards FOIA’s central purpose of furthering governmental accountability, and the special importance the law accords to information revealing official misconduct."
A November 6, 2008, petition for a re-hearing was denied last month.
The Obama administration could have opted to go all the way to the Supreme Court to try to keep these photographs from public view, but yesterday Acting U.S. Attorney Lev L. Dassin wrote to District Judge Alvin Hellerstein and said the Pentagon was preparing to release 21 photos at issue in the appeal, in addition to 23 others "previously identified as responsive."
The materials will be released to the ACLU no later than May 28, after which the ACLU says it will make them public. This release will come just days before President Obama travels to the volatile Middle East.
Dassin wrote that the Pentagon also was "processing for release a substantial number of other images contained in Army CID reports that have been closed during the pendency of this case."
Singh said in a statement that the photographs "will constitute visual proof that, unlike the Bush administration’s claim, the abuse was not confined to Abu Ghraib and was not aberrational. Their disclosure is critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for authorizing or permitting such abuse."
Lowenthal said his former colleagues at the CIA were "put off" by President Obama’s trip to the CIA earlier this week. "I don’t think the president’s speech went down very well, particularly the part when he said they made mistakes. They don’t think they made mistakes. They think they acted to execute policy. And those in the intelligence service don’t make policy."
Those in intelligence are "gong to become increasingly wary about doing dangerous things," Lowenthal said. "They feel at the end of the day they won’t be covered. It’s not irreparable right now, but it’s problematic."