September 30th, 2005

Our need to know–the ACLU and Abu Ghraib

Let’s see if I’ve got this straight: US District Court Judge Alvin K. Hellerstein has ordered the release of more Abu Ghraib photos to help the ACLU prove that prisoners have been abused, and it’s OK because the terrorists don’t need those photos in order to hate us, they can do it very well for no reason at all.

And to think I used to give money to the ACLU.

This article from about a month ago makes the situation even more puzzling. Apparently, back then, Judge Hellerstein seemed to be very hesitent to release the photos because of the national interest involved. Why the change in one short month?

I haven’t found an answer, but the article explains why the ACLU is so hot to have these photos splashed all over the cable news networks and the newspapers: they’re only thinking of us:

ACLU lawyer Amrit Singh argued that release of the pictures was necessary for the public to assess the scope of the abuse and whether it could have been carried out without the knowledge of military leaders.

Thanks a lot, ACLU. I really, really appreciate it. I’m sure that once I look at those photos I’ll instantly know how high up the responsibility goes–no doubt, one of them features Rumsfeld holding a naked prisoner on a leash.

The underlying basis of Judge Hellerstein’s decision appears to be compliance with the Freedom of Information Act. Apparently, the present rule is that information should be released under the act unless “disclosure would be harmful.”

Our legal system ordinarily requires that a rape victim’s name not be released because it might be harmful to her. A juvenile’s court records are sealed because it might be harmful to the minor in question. The potential harm in both situations trumps the public’s right to know.

In the present case, the public has seen photos of Abu Ghraib ad nauseum, so seeing a few more is hardly likely to give the us needed and vital information. The only effect such release is likely to have is to harm us, our soldiers, and our country still further.

Whether or not the terrorists need such information to hate us is hardly relevant; they could certainly use it.

I’m with Dickens–the law is an ass (not to mention the ACLU).

[ADDENDUM: I didn't see this when I wrote the post, but in the NY Times article on the subject, it mentions that, when the photos are to be released, the rights of the detainees to privacy will be protected:

Judge Hellerstein ordered that the images be edited to hide the faces of the Iraqi prisoners, to avoid violations of their privacy under the Geneva Conventions. He concluded that one videotape sought by the A.C.L.U. could not be adequately edited, and that it not be released.

So, to recap: a certain videotape will be surpressed because the right of the detainee to privacy overrides our need to see still more and more and more photos of abuse that has already been more than adequately covered in the press. But the rights of our servicemen and women to be protected from further inflammatory publicity on the matter, and our own right to be protected against increased rage in the Islamicist world, are both less powerful than that detainee's right to privacy. I'm in awe.

It's certainly possible that this decision makes perfect sense, if I were to read the entire transcript of the judge's ruling. Sometimes learning the details of a case makes all the difference in the world. But from what I've read in the press so far, this one seems misguided.

It's being appealed; it will be interesting to see what ultimately happens. But I think cases like this are an excellent example of why the public has become more dissatisfied with the judicial system in general.]

26 Responses to “Our need to know–the ACLU and Abu Ghraib”

  1. tequilamockingbird Says:

    Evidently the judge weighed the arguments and, to put it in simple terms, came down on the side of free speech and transparency — one of the characteristics that make the American model successful — as opposed to government secrecy.

  2. tequilamockingbird Says:

    Thank you, Aga, for posting the link to the opinion. For those too lazy to read the judge’s opinion regarding the order to produce the 87 photographs and 4 videos known as “the Darby photographs”, here’s the conclusion:

    “The interest at stake arises from pictures of flagrantly improper conduct by American soldiers — forcing prisoners under their charge to pose in a manner that compromised their humanity and dignity. As I stated at the time of the original argument, and as I reiterated previously in this decision, the pictures are the best evidence of what happened, better than words, which might fail to describe, or summaries, which might err in their attempt to generalize and abbreviate. Publication of the photographs is central to the purposes of FOIA because they initiate debate, not only about the improper and unlawful conduct of American soldiers, “rogue” soldiers, as they have been characterized, but also about other important questions as well — for
    example, the command structure that failed to exercise discipline over the troops, and the persons
    in that command structure whose failures in exercising supervision may make them culpable along with the soldiers who were court-martialed for perpetrating the wrongs; the poor training that did not create patterns of proper behavior and that failed to teach or distinguish between conduct that was proper and improper; the regulations and orders that governed the conduct of military forces
    engaged in guarding prisoners; the treatment of prisoners in other areas and places of detention; and other related questions.

    Suppression of information is the surest way to cause its significance to grow and persist. Clarity and openness are the best antidotes, either to dispel criticism if not merited or, if merited, to correct such errors as may be found. The fight to extend freedom has never been easy, and we
    are once again challenged, in Iraq and Afghanistan, by terrorists who engage in violence to intimidate our will and to force us to retreat. Our struggle to prevail 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 in Afghanistan and Iraq. There is a risk that the enemy will seize upon the publicity of the photographs and seek to use such publicity as a pretext for enlistments and violent acts. But the education and debate that such publicity will foster will strengthen our purpose and, by enabling
    such deficiencies as may be perceived to be debated and corrected, show our strength as a vibrant and functioning democracy to be emulated.

    In its most recent discussion of FOIA, the Supreme Court commented that “FOIA is often explained as a means for citizens to know what ‘their Government is up to.’ The sentiment is far from a convenient formalism. It defines a structural necessity in a real democracy.” Favish,
    541 U.S. at 171-72. As President Bush said, we fight to spread freedom so the freedoms of Americans will be made more secure. It is in compliance with these principles, enunciated by
    both the President and the highest court in the land, that I order the government to produce the photographs that I have determined are responsive and appropriately redacted.”

    The photographs were only one of five subjects of the request for production of documents. In relation to portions earlier in the decision, the judge said at one point:

    “Historians will evaluate, and legislators debate, how wise it is for a society to
    give such regard to secrecy. The practice of secrecy, to compartmentalize knowledge to those having a clear need to know, makes it difficult to hold executives accountable and compromises
    the basics of a free and open democratic society. It also creates a dangerous tendency to withhold
    information from those outside the insular group, for fear of compromising the sources and integrity of intelligence. The consequences can be dire for, as noted in the 9/11 Commission Report, the strict need-to-know, proprietary approach to intelligence that has been employed by government agencies prevents the effective use of our vast storehouse of information. 9/11 Comm’n Rep. (2004), § 13.3, at 416-17 (“The biggest impediment to all-source analysis—to a
    greater likelihood of connecting the dots—is the human or systemic resistance to sharing information.”). Identities of terrorists may be locked in the files of one agency and not given to
    another, or reported, if at all, only at the very top of chains of command, denying real-time need to know by those at operating points. The insularity of information tends to cause a multiplicity of
    intelligence-gathering agencies, each zealously protecting its own private sources in competition
    with other agencies. See, e.g., Judith Miller, A New York Cop in Israel, Stepping a Bit on F.B.I. Toes, N.Y. Times, May 15, 2005, § 1, at 37 (discussing tensions between the New York Police
    Department and the FBI arising from their separate intelligence-gathering endeavors abroad, in
    turn resulting from the NYPD’s desire to have quick access, on an equal footing with federal agencies, to key counter-terrorism information).

    “There was no more cogent critic of the penchant by government officials to over-classify information than the late Senator Daniel Patrick Moynihan, and few with his competence and
    experience. Senator Moynihan, reflecting on his experiences as Chairman of the Commission on
    Protecting and Reducing Government Secrecy, among many other relevant
    positions, commented at the conclusion of his book, Secrecy:

    “[A] huge proportion of the government’s effort at classifying is futile anyway. Let [George F.] Kennan have the last word. In a letter of March 1997 he writes: “It is my conviction, based on some 70 years of experience, first as a government official
    and then in the past 45 years as an historian, that the need by our government for secret intelligence about affairs elsewhere in the world has been vastly overrated.”…

    “A case can be made…that secrecy is for losers. For people who don’t know how
    important information really is. The Soviet Union realized this too late. Openness is now a singular, and singularly American, advantage. We put it in peril by poking along in the mode of an age now past. It is time to dismantle government secrecy, this most pervasive of Cold War-era regulations. It is time to begin building the
    supports for the era of openness that is already upon us.”

    I suggest that reading the decision (only the last dozen-or-so pages address the Darby photographs) will help us all to know what we’re talking about.

    Thanks also to fellowservant for posting the link to the CNN item regarding the judge’s ambivalence. It’s not black and white; if it was, it wouldn’t have got to court in the first place.

    tequilamockingbird

  3. SteveR Says:

    If the ACLU is seriously concerned about whether the photos demonstrate more widespread abuse, or evidence that guilt extends beyond those already punished, there are other ways to do that besides releasing the photos to the public.

    As for me, I’m already convinced that the photos are just “more of the same.” Now there have already abeen 12 major inquiries, 31 congressional hearings and 45 staff briefings on this issue – all without finding evidence of wrongdoing up the commmand chain, which ACLU is so anxious to prove.

    We already know what terrible consequences have been wrought byeven false rumors of prisoner abuse – has the ACLU already forgotten how many people were killed over the koran-flushing calumny?

  4. Steve J. Says:

    “Keep the Jihad strong”

    Have many times have you pissed on your cheetos?

  5. Ymarsakar Says:

    Z-Man’s deputy sure didn’t know the bomb that blew his brains all over the country, so yeah, they do need help from America, since we got all the weapons and they got nothing but propaganda.

    Keep the Jihad strong steve.

  6. Anonymous Says:

    After all, what are facts when there’s a larger truth to consider?

  7. Steve J. Says:

    The only effect such release is likely to have is to harm us, our soldiers, and our country still further.

    LMFAO! Yeah, like the Arabs don’t know what happened.

  8. Ymarsakar Says:

    OK, but how would publication or non-publication change what the bombers in Iraq are doing? They want to kill their enemies, including American soldiers there. So if Abu sees these pictures in a paper, you really think he’s going to say: “Holy Muhammed, now I’m really mad at the Yankee pigs. Gimme another stick or two of dynanmite for my car bomb. I’m gonna make it even bigger and deadlier.”
    Naw. They’re as angry as you can get, and their daily deadly actions show it.Will these pictures bring in more recruits for Osama? Maybe, but the pipeline is already pretty full. Our servicepeople DO need more–better protection in the field, a REAL strategy (based on some sort of objective)–but these things must come from dysfunctional DC.

    This is what I would do if I was a terroist and I was given these “extra” DVD Abu Ghraib settings. Thinking in the shoe’s of the terroists is not something jsut anyone can up and claim they can do, you have to become a terroist psychologically, manifest their psychological strengths and weaknesses, and adopt their philosophical and political goals.

    Loyal Jihadists, we have recently acquired a treasure from Allah. Allah has seen our mighty struggles against the Satan in Iraq, and against all non-believers present and future. Allah has seen, and he is approving of our courage and loyalty. The sign he gives us is strong, and should not be underestimated.

    Look here, upon these pictures of the Great Satan in treating holy muslims in the stinking dungeons of apostates to shame and humiliation. The Americans are laughing at us! Those infidels, who have not the strength to even control their own media. This is indeed a sign, it is a sign from Allah, in our darkest days, that we are still stronger than the Great Satan. It is proof, holy writ.

    We will win, since the Americans are so guilt ridden, that they will give us more pictures of their abuses! What do they expect, for us to forgive them and give them comfort and aid?! NOOOOOOOO, we have seen, indeed we have, their weakness, moral and culture. They seek to PLACATE US, with these pictures of shame, they wish to seek FORGIVENESS and the MERCY of Allah, but they will receive neither. For the infidels deserve ever lasting hell and torture, for they cannot resist, not when they can’t even stop their own ACLU. Not when the Americans can’t even control their own people.

    What hope do the infidels have against us, WE WHO ARE UNITED IN JIHAD IN ALLAH’S NAME, we who will achieve everlasting serenity and rewards, WE WHO WILL TRIUMPH!!!

    Abu, the youth who has seen so much death and destruction visited upon the mujahideen by the Great Satanic forces, he has recently been doubting the power of the Jihad. But now with this new proof of ALlah’s favor, he knows that he has been empowered with a destiny, the destiny to visit suffering upon the infidels. His fear of becoming a martyr in tomorrow’s suicide bombing, was a test, and Allah had seen how he was weakening. Now Allah had given him a sign, a gift, and now Abu knows that the Americans can be defeated, for the Americans do not have Allah on their side.

    We are strong, and they are weak, we are worthy and they are decadent, we are united and they are fragmented. Tomorrow, Abu says in his mind, I will go and achieve martyrdom with the death of 500 little infidels at the school. May Allah have mercy on me for my weakness.

    Thank Allah, for acting through the ACLU.

    Boom.

  9. Ymarsakar Says:

    If President Bush ever had the guts to tell a Special Forces Group to “concentrate on finding pro-US pictures to be dissimilated to the American people to counter enemy propaganda”, I’d be interested in seeing how big a brick the ACLU will shit in their sprint to block such pictures.

    Freedom is only for the ACLU and those who are socially acceptable like terroists, there is no freedom left for Americans.

    It wouldn’t be so bad if freedom of information was really followed, but when freedom of information only applies for pro-Osama Bin Laden propaganda rather than pro-American pictures, then you have a slight problem of fascism.

    You don’t see pro-American pictures, because most of them have been suppressed by the media. The military can’t get their money’s worth if they attempted to get the media to showcase pictures good for American morale. You couldn’t pay the MSM enough to do that. But you wouldn’t even need to pay the MSM to show Abu Ghraib pictures.

    The MSM are ideologues, and so is the ACLU and stupid judges who don’t live in the same country as the rest of us lives in.

  10. Richard Aubrey Says:

    Maybe somebody could start a lawsuit to censor the bloody pictures of the victims of the latest bombing in Bali.
    The ACLU would be forced to insist that everybody in the world needed to see them, and would have to go to court to make it happen.
    Or demonstrate what we already know.

  11. onlineanalyst Says:

    Don’t we equally need to know/see the images of jihadi terrorism; ie., the beheadings, the mass graves, the aftermath of roadside bombings and killing of school children?

    Perhaps we need to see also the flaming WTC towers and the bodies dropping from the upper stories.

    The decision to release the Abu Ghraib photos now in the run-up to the Iraqi elections and the already inflamed passions of the terrorists over this election is reprehensible, flying in the face of common sense.

    We are engaged in a war that threatens our Western civilization. Saving face and presentation of defeat or humiliation of our troops and our ways is part of the arsenal of the ME mindset. And we are assisting in this defeat through our courts? Whose side is this judge on?

  12. charlie robert Says:

    10 easy steps to nirvana

    1 – all for one and one for all
    2 – 666 696 969 999 ;-)
    3 – say you are a sinner
    4 – understand
    5 – breathe easy
    6 – remember
    7 – imagine
    8 – love yourself
    9 – submit
    10 – judge

  13. FellowServant Says:

    CNN has removed the link to “Judge cites reluctance to release Abu Ghraib photos”. The orginal article can be viewed via google’s cache of the page here:
    http://64.233.167.104/search?q=cache:PTGDDrX8T8IJ:www.cnn.com/2005/LAW/08/31/abu.ghraib.photos.ap/+&hl=en

  14. Holmes Says:

    I dunno, I dunno. I’m too lazy to read the opinion and I have other cases to put off reading at the moment, but I imagine the Freedom of Information Act puts the burden on the party opposing the release of information to show a compelling reason why it should not be released. Apparently the government did not meet that burden.

    Most of the world can handle it. Unfortunately, the Arabic world doesn’t seem mature enough yet to handle such information. They seemingly riot at the drop of a hat, over rumors of things which may or may not have happened, let alone actual graphic pictures. But perhaps they should just grow up and see that justice in free societies goes through a process.

  15. Anonymous Says:

    The whole mess can be summed up thusly:

    Abuse was done by stupid soldiers.

    Abusers stupid enough to take video and still photos during staged events.

    Abusers (still stupid but now repentent) now punished and in jail.

    Release of a few aforementioned still photos creates a wave of hatred in the Arab world.

    Daniel Berg is captured and beheaded, also filmed on video that is quickly released by terrorizing murderers, who state on the video that this was being done in retaliation for the insult to Islam done by aforementioned stupid soldiers.

    Now Hizhonor the Judge (he seems kinda stupid, too) says we have to release ALL previously unreleased still photos. Like…….we don’t KNOW what went on? Like…….we didn’t SEE enough embarrassing images the first time? How many photos of a stupid laughing and grinning woman holding a leash around the neck of a naked prisoner do we need to see and feel a wave of revulsion about the abuse of power being practiced by these stupid soldiers?

    Who will the followers of Al Zarqawi manage to capture and behead in retaliation for THESE photos?

    Has anybody checked out this Hizhonor the Judge? Sounds to me as if he’s on the side of the enemy…..

    –Sandra C.

  16. Rick Ballard Says:

    NNC,

    A Clinton appointed judge helps the ACLU flog the Copperhead’s dead horse in the hope of crossing an unreachable finish line.

    I understand your concern regarding the judge’s callous disregard for the potential damage that may be done but the people involved in this could never be accused of common sense or national loyalty. At least, not to the United States. Objectively pro-terrorist propaganda can be anticipated to continue indefinitely.

  17. Assistant Village Idiot Says:

    John Moulder, I partly agree, but suggest that self-flagellation is not what is taking place. The American Left is not confessing or apologizing for their own actions, they are accusing their countrymen and hiding behind a common label. Confessing other people’s sins is so painless and satisfying.

  18. Dale St. Clair Says:

    I can’t see any compelling reason why the pics should be released. The public already knows the abuses took place. The abuse has been stopped & legal action initiated. It’s part of the self-flagellation so many in our country are fond of. See how bad we are? You did already? Well, look again & again because we love to revel in our badness & we insist you take part. Let’s hope these are all the pics left so we wont have to go through yet another round of tiresome OpEds & breathless talking heads.

    As for the question of the pics inflaming more hatred toward us – hey, they hate us about as much as they can so I don’t think we should even worry about it. We waste a lot of time & energy trying to get our enemies to like us. They are never going to like us, no matter what we do.

    That said, the larger issues of the fact of the abuse, what led up to & caused the abuse needs to be explored by someone fair-minded & with no axe to grind – if that would be possible in the present political climate. Nah, probably not.

  19. The Bunnies Says:

    I agree that many around the world will hate us no matter what we do. Furthermore, I believe that we can not let this make us squeamish against fighting terror.

    Nevertheless, we shouldn’t give our enemies any more ammunition in the PR war than necessary. Civilians died during the invasion, but we rightly tried to avoid more civilian casualities than we had to, not only because it was the right thing to do, but because it made good PR sense.

    The extremists will hate us no matter what, but many both in this country and abroad are still sitting on the metaphoric fence. More pictures of our soldiers will make us look worse in their eyes and require that we overcome yet another hurdle.

    Furthermore, the extremists hate us, but they like finding excuses to go on rampages and stuff. If a necessary action on our part inspires a rampage, fine. But imaginary Koran toilet-flushing reports give them excuses unnecessarily. I fear that more photos that will be spun as new will have the same effect.

  20. AGA Says:

    While I have only “skimmed” the opinion, one thought that occurred to me was whether the decision would be the same if the photos depicted Americans being abused. Would “privacy” interests then carry the same weight, or be satisfied with a little photoshopping?

  21. AGA Says:

    Here is a link to the opinion (50 pages). I read your post this morning, found the opinion and thought that I would be able to provide a little analysis. Unfortunately, my day then became too busy, so all that I am able to provide is the link.

  22. Richard Aubrey Says:

    The results will be what they will be.
    The left thinks this will energize a get-Bush movement.
    The right thinks this will energize a get-Bush movement.
    Some think it will energize a get-America movement.

    I don’t think we need to expect a mass increase in terrorist recruits. It might happen. But what is more likely is that one whackjob will go nuts in the nearest get-America venue. If it’s a whackjob living here–like the DC snipers–and he decided to shoot up a school as the buses dropped off the kids, or a shopping mall, it would surely be enough.

    The thing that annoys me is that the decision said, but not in so many words, that the increase in danger to the US and particularly its soldiers is a worthwhile price to pay.
    I’d prefer it that the jokerjudge say so in so many words.
    Might as well cut to the chase and give us something concrete to argue about.

  23. Anonymous Says:

    The pictures’ real value are as a recruiting tool for the terrorists. Al-Jazeera is going to broadcast the pictures all over the Arab world, but instead of telling its watchers that they were taken by the same people who are now sitting in jail, they will infer as strongly as they can, without actually saying it outright, that the new pictures are a part of continuing abuses taking place at Abu Gharib even today.

    Did you know that all the pictures in the Abu Gharib case were taken during one single day, rather than being taken over the course of several months of systemic abuse? If you did, it certainly wasn’t because you heard it from the MSM.

  24. erasmus Says:

    OK, but how would publication or non-publication change what the bombers in Iraq are doing? They want to kill their enemies, including American soldiers there. So if Abu sees these pictures in a paper, you really think he’s going to say: “Holy Muhammed, now I’m really mad at the Yankee pigs. Gimme another stick or two of dynanmite for my car bomb. I’m gonna make it even bigger and deadlier.”
    Naw. They’re as angry as you can get, and their daily deadly actions show it.Will these pictures bring in more recruits for Osama? Maybe, but the pipeline is already pretty full. Our servicepeople DO need more–better protection in the field, a REAL strategy (based on some sort of objective)–but these things must come from dysfunctional DC.

  25. neo-neocon Says:

    erasmus: I’m not the least bit concerned about the effect of the release of these pictures, or a thousand more like them, on the American public. If that were the only issue, I’d say “bring them on.”

    The most important issue is the effect on the safety of our servicepeople, and on the so-called “war on terror” (a phrase of which I’m not particularly fond) as a whole.

    When decisions like this are rendered, it’s a balancing act. The judge needs to determine which is the greater need. In this case, I think he clearly made the wrong decision. Others may (and indeed, do) differ.

  26. erasmus Says:

    1. Until we see these new pictures, how can you tell that the abuse has been “more than adequately covered in the press?” Maybe they’ll diminish the nature and scope of the abuse. Why not see them and then figure out just what we make of the information we have so far.
    2.You use “likely” twice in the next to last paragraph of your original post. You’re likely right on, but what if…? Let the effect be what the people’s conscience and values tell them about these pictures. Americans never paid much attention to far Left or far Right screamers, so neither Cockburn nor Limbaugh will determine public reaction, at least for the most part. Or, so I hope.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.
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