U.S. Moves to Block Graphic Photos of Detainee Abuse, Again

"There was never going to be a perfect time to release this report," President Barack Obama said earlier this month after the Senate Intelligence Committee unleashed its long-awaited "torture report," which describes the harsh treatment of detainees at secret CIA prisons in devastating detail. "One of the things that sets us apart from other countries is that when we make mistakes, we admit them."

But in the wake of this rare moment of transparency, the administration took the next step in keeping additional evidence of prisoner abuse concealed.

The government is withholding nearly 2,100 images that show the military's brutal treatment of detainees at various prisons in Iraq and Afghanistan. While the previously disclosed pictures from Abu Ghraib are the stuff of nightmares—piles of naked bodies, detainees being led on leashes and U.S. soldiers giving a thumbs-up as it all happens—these photographs are said to be even more disturbing. One image reportedly shows a female soldier pretending to sodomize a naked prisoner with a broom, while others allegedly depict U.S. troops pointing guns at detainees' heads.

The American Civil Liberties Union (ACLU) originally sued for the images' release in 2004. The ACLU scored legal victories both at the trial and with an appeals court, but Obama said he feared the photos would "further inflame American opinion and...put our troops in greater danger" and blocked the release.

Congress ultimately enacted a statute in 2009 that allows the secretary of defense to keep an image concealed for up to three years if making it public would pose a threat to national security. That year, then-secretary of defense Robert Gates decided to keep all of the images concealed, and his successor, Leon Panetta, decided to do the same in 2012, with a blanket assertion that their release would put troops at risk.

But in August, U.S. District Judge Alvin Hellerstein decided that this lump justification for concealment was insufficient. He ruled that if the government wanted to keep the images classified for the remainder of the three-year allotment, it would have to review each individual photograph and demonstrate why its release would put national security at risk.

As part of this ongoing legal battle, the Department of Defense submitted yet another lump justification on Friday to keep the images classified, arguing that the previous blanket reasoning was based on an individual assessment of each picture and was therefore sufficient by the court's standards.

In its assertion, the Obama administration is again making the case that the images' release would put U.S. personnel in harm's way. Along with the resubmission of 2012 testimony from senior military leadership on the risks at that time of exposing the images, the government submitted an argument from Rear Admiral Sinclair M. Harris, vice director of operations for the Joint Chiefs of Staff, which says that "the danger associated with release of these photographs is heightened now."

Harris contends that the photographs could further encourage attacks against the U.S. personnel still in Afghanistan and Iraq and could be used by the recently galvanized Islamic State—the terrorist group commonly known as ISIS—as propaganda to encourage new membership and enflame sentiments.

While the Obama administration ultimately decided that a heavily redacted, 500-page executive summary of the Senate Intelligence Committee's 6,400-page report on CIA "torture" should be released because there would never be a "perfect time" to do so, it has taken the opposite stance regarding the images. Harris argues that "this risk is much greater with respect to the photographs than mere written descriptions."

While the ACLU recognizes the potential for bad reactions and the unique power of photographs, Alex Abdo, an ACLU staff attorney working on the case since 2005, said the government's reasoning is "truly perverse."

"It's pretty well established in our constitutional right to free speech that we...don't give terrorists a veto on what the public is entitled to learn about government misconduct," Abdo said. He adds that the government is essentially arguing that it has greater authority to keep the images secret because they powerfully document abuse. "If there's anything the debate over torture is missing, it's the sort of evidence that photographs give you—irrefutable evidence of the brutality of the mistreatment," Abdo said.

Abdo also highlighted what he saw as another layer of government hypocrisy. "When Sony decided to pull The Interview from theaters, Obama kind of criticized Sony, saying 'we're giving in to our enemies if we give them a veto over our First Amendment speech,' and that's precisely the argument we make in this lawsuit to win release of these photos," he said.

A hearing is set for January 20 in a Manhattan federal court, when Hellerstein will review the submission and make a decision about the release of each of the images. Abdo hopes that the judge will find the government's new blanket justification insufficient and order the pictures' release. But even if Hellerstein does as the ACLU hopes and rules against the government, the government could appeal and the prolonged legal battle over the images will continue.