It depends on our purpose.
In October 2003, The American Civil Liberties Union (ACLU) sent a Freedom of Information Act (FOIA) request to the Departments of Defense, Homeland Security, Justice and several other Bush Administration agencies. The request was for documents related to the US Government’s role in the torture and/or rendition of individuals in its custody. The ACLU claimed, “[The Government has] failed to address the numerous credible reports recounting the torture and rendition of Detainees. Nor have they explained what measures, if any, the United States has taken to ensure compliance with its legal obligations with respect to the use of torture and the infliction of cruel, inhuman or degrading treatment or punishment. [And] to determine whether the United States is honoring its obligations under domestic and international law….”
Bush Administration officials refused to release the “torture photos” because, according to them, the photos would inflame the Middle East, put unidentified individuals, groups and in-theater military personnel at risk and would run afoul of international laws prohibiting the public parade and humiliation of war prisoners.
In September 2004, the US District Court in the Southern District of New York (SDNY) stated, “Congress enacted FOIA to illuminate government activities. The law was intended to provide a means of accountability, to allow Americans to know what their government is doing…. Yet, the glacial pace at which defendant agencies have been responding… shows an indifference to the commands of FOIA.” The judge also noted, “As of today, eleven months later, with small exception, no documents have been produced by [the Department of Defense, et al].”
The District Court ordered the public release of the photos after viewing a representative sample in camera (e.g. in the privacy of the Judge’s chambers). Since then, the Federal judiciary has consistently ordered that the photos and other pertinent documents be redacted and released in compliance with national and international laws that prohibit the public humiliation of prisoners.
In August 2006, the United States Court of Appeals for the Second Circuit upheld the SDNY’s order to release the photos after noting that the Bush Administration had interpreted certain legislative amendments to FOIA as “a diffuse and nebulous authority for keeping inflammatory information secret (though, curiously, only inflammatory information in law enforcement files).” The Court continued, “Release of the photographs is likely to further the purposes of the Geneva Conventions by deterring future abuse of prisoners.”
On April 23, 2009, the Obama Justice Department informed the Court that the Department of Defense would release its photos by May 28, 2009.
On May 13, 2009, nearly six years after the ACLU issued its first FOIA request, President Obama’s Justice Department informed the Court that the President had changed his mind, “…upon further reflection at the highest levels of Government, the Government has decided to pursue further options regarding that decision…” including a possible appeal to the US Supreme Court by June 9, 2009.
Press Secretary, Robert Gibbs expressed President Obama’s concern that release of the photographs would inflame the Middle East and increase the threat to US personnel serving in Iraq and Afghanistan. The Obama team does not believe the Bush Administration adequately portrayed those risks in its Court filings and appeals.
Yesterday, The Huffington Post carried this ACLU response, “These photographs provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib…. 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.”
The U.S. Federal Rules of Evidence state, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice… or needless presentation of cumulative evidence.” In short, not all relevant evidence is equal or admissible. A judge must determine whether its value as evidence substantially outweighs its potential harm.
There’s also a notion in civil societies that an inflamed person is unlikely to be judicious.
Is it reasonable to believe that “The Amorphous Middle East” would be inflamed by a 24-7 media blitz of photos in which an occupying military force tortures citizens of foreign lands? Will “The Amorphous Middle East” see the photos as evidence of the Bush Foreign Policy, distinct from Obama’s? And, will that Middle East view efforts to hide the photos as a continuation of Bush policies?
One friend I spoke with said she wants the photos disseminated publicly. “Maybe pictures will make Americans feel shame. Maybe pictures will provoke an American conversation about who we really are and what ethics we really believe in. Maybe it’ll force the politicians to really do something.”
Maybe; but I doubt the photos will stimulate the American public to a greater outrage. Many of the people I know have been outrage- saturated by a plethora of criminal actions and a dearth of incarcerations. Thankfully, the ACLU has a ton of arrows in its quiver.
Germany was shamed after World War I and a handful of years later we fought World War II. We fire-bombed Germany during World War II and held them to account at Nuremburg. Germany is now home to one of the world’s fastest growing populations of Skinheads and other xenophobes. Whether or not cause and effect can be proved in those examples, they tell us that shame is not a cure-all.
Our purpose, as opined by the United States Court of Appeals for the Second Circuit, should be to deter “future abuse of prisoners” and to ensure, as the ACLU demands, that “the United States is honoring its obligations under domestic and international law….”
We have a system of justice intended to do just that. We place the accused on trial. We hear the evidence against and for them. We release or punish them. As a matter of course, we parade our convicted felons publicly. We hope that their shame will deter others – will demonstrate our adherence to the rule of law.
With that in mind, whether the photos are released publicly or viewed in camera or by a jury, the real issue is not which evidence will be presented (there’s tons) but rather, will Donald Rumsfeld, George Bush, Dick Cheney, et al stand in the dock. Will they be paraded publicly to cleanse rather than inflict shame?
A public trial of those who conceived and implemented the torture policy would stimulate a discussion about the American ethic and reassure the world of our honorable intention to uphold our ideals. Without that, publishing the photos is just more Bread & Circuses and I fear, provocation.