Documents
Amicus
curiae
brief, filed March 10, 2006
Opinion
and Order Granting in Part and Denying in Part Motions for Partial
Summary Judgment - Southern District of New York, Judge Hellerstein,
September 29, 2005
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Archive
and EPIC Urge Second Circuit to Order Release of Abu Ghraib Photos
Withholding of photos deprives public of unbiased evidence
about abuse by American troops and command responsibility
For
more information contact:
Meredith Fuchs or Kristin Adair
202/994-7000
Washington,
D.C., 13 March 2006 - The National Security
Archive, along with the Electronic Privacy Information Center (EPIC),
on March 10 filed a "friend
of the court" brief in the United States Court
of Appeals for the Second Circuit. The brief asks the Court to uphold
a lower court
decision ordering the Department of Defense to comply
with a FOIA request for photos and digital movies depicting the
abuse of detainees by American troops at Abu Ghraib prison in Baghdad,
Iraq.
Judge Hellerstein in the Southern District of New York ruled
in favor of plaintiffs the American Civil Liberties
Union (ACLU) that the government must release the photos because
they are critical to an ongoing public debate about treatment of
detainees in U.S. custody around the world. "Our struggle to
prevail [in Afghanistan and Iraq] must be without sacrificing the
transparency and accountability of government and military officials.
These are the values FOIA was intended to advance, and they are
at the very heart of the values for which we fight," Hellerstein
wrote.
DOD claims it can refuse to disclose the photos under FOIA Exemption
7(F) because they could "endanger the life or physical safety
of any individual," namely U.S. troops in Iraq. They argue
that publication of the photos may incite insurgents and terrorists
in Iraq to wage violence against American and Coalition forces.
The government also argues that the records should be withheld because
the graphic images may cause an unwarranted invasion of the personal
privacy of the detainees pictured.
The amicus brief by the Archive and EPIC argues that the
government's claims are misguided and threaten to eviscerate the
FOIA's purpose of promoting open and honest government and allowing
the public to obtain such that it can hold leaders accountable for
their conduct. In fact, the government turns FOIA on its head by
claiming that information more likely to expose improper official
conduct, and therefore incite public outrage, can be withheld to
prevent just such a public response. Courts in this country have
never permitted the prospect of unrest or anger over unpopular speech
to thwart the right to free expression guaranteed by the Constitution
and implemented, in part, by FOIA. The brief points out that the
Supreme Court has consistently rejected similar arguments in the
past, for example that civil rights marches in the United States
should be limited or prohibited because such marches might incite
the Ku Klux Klan to violence.
Moreover, the brief argues, release of the photos will not result
in an "unwarranted invasion of personal privacy" because
Judge Hellerstein has reviewed all of the photos and redacted them
to prevent recognition of the detainees pictured. The interest of
the public in seeing the unbiased evidence and judging for themselves
the conduct of U.S. soldiers and the responsibility of higher officials
in the abuses at Abu Ghraib is momentous. The government here seeks
to use the privacy exemptions to impede efforts that could protect
individuals from grave harm or punish wrongdoing-just the purpose
that the FOIA is intended to serve.
More information about the lawsuit is available at http://www.aclu.org/torturefoia
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