Torture Photos: Is a public release necessary?


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.

******

Legal documents at ACLU website

Inauguration Jubilee: Sunday


Pete Seeger, his voice  thinned by the years,  sings  old labor and unity anthems shoulder-to-shoulder with  The Boss.

Through the Vietnam War and the crushing of the labor unions, we sang with outrage, defiance and by the skin of our teeth.  Through the last thirty years, we’ve  sung to each other of Joe Hill,  Matewan, endless war  and  the Letter from the Birmingham Jail.    Even when we doubted, we pledged in small groups to join hands and overcome.  (Letter from the Birmingham Jail:   http://www.bu.edu/irsd/Ec326_2004/material_2004/Letter%20from%20Birmingham%20Jail.htm

In one moment during the Democratic Primary Debates,  Obama and Clinton showed us the fundamental difference between them.   The moment  received little subsequent coverage and  came in  response to a question from Kim Millman of  Burnsville, Minnesota:  “…there’s been no acknowledgement by any of the presidential candidates of the negative economic impact of immigration on the African-American community.  How do you propose to address the high unemployment rates and the declining wages in the African-American community that are related to the flood of immigrant labor?”

Obama replied with full understanding of how business and economic downturns have conspired to divide workers along racial, ethnic  and gender  lines  into weakened factions.  He encouraged workers to organize around their commonly-held kitchen table issues.  He reminded  us that all American workers are under siege and that we need each other.    His response educated workers for their own organizing good.

Clinton’s response acknowledged  that business scavenges  for low-cost workers and drives down compensation, but many of her words were vested in  the manufactured divide  between African Americans and “immigrant”  workers.   (The transcript of the debate is available here:  http://www.cnn.com/2008/POLITICS/01/31/dem.debate.transcript/index.html

This inauguration, we sing,  “This land is our land,”  with tears streaming.    We dare  to believe  we can re-create  a  “government  of the people, by the people and for the people.”

In  music and poetry we hear  a few of   the stories we didn’t learn  in school.  Queen Latifah takes  the  stage —  tall, certain and strong — to tell  us of  the day Marian Anderson and   Eleanor Roosevelt  faced down The Daughters of the American Revolution (DAR).   I give thanks to my mother and grandfather  for telling me the story  of  those two astonishing women.  There are so many clues in our history that show us how to avoid the mistakes that have separated us one from another.  (Here’s  the story of Marian and Eleanor.  It includes  The  First Lady’s letter of resignation from  the DAR: http://www.archives.gov/exhibits/american_originals/eleanor.html

More than any other reason,  I thank the fates for Obama  this Inauguration weekend  because I remember how migrant farm workers were threatened with lynching in the town where I grew up.  I remember the faces of my schoolmates when we hid beneath our desks  in  fear of a  US-USSR nuclear war.    I am thankful,  while a ceasefire exists between Israel and Gaza,   that  our next  President  has an ingrained understanding  that we live or die together.

For years,  the picture of Eleanor climbing out of the coal mine hung over my bed.  (I was an atheist  who adored my spiritual icons.)  Her face was dirty and the miner’s lamp she wore hung low over her forehead and crushed her  hairdo.  She was looking up at the miners who were waiting to pull her out of the hole and into the light.  I haven’t located that particular photo but this  link  shows her entering the depths of  the Willow Grove Mine  in a mining car:  http://www.geocities.com/Heartland/Ridge/4478/grove.htm

Today,  the media speaks in breathless tones about the gown Michelle will wear tomorrow.   CNN is all a-twitter speculating on the designer’s identity and how many pairs of shoes  The First Lady will need  to survive the Inaugural festivities.

We  need bread and circuses, I suppose; but we also need to see  honest images of cashiers, neighbors, truck drivers, friends  and  autoworkers as they wait  in line this winter day at  their local food pantries.

Gaza Ceasefire: Network of Spiritual Progressives

The nations and people of the Middle East are members of the human family.


All over the world, people are searching their hearts for solutions to the tragedies of the Middle East.

Instinctively, I think of the terrors inflicted by both sides as violence between beloved family members.  In that context, I can feel protective of all the feuding parties without ignoring  their concerns or their failings.  It’s a context that helps to deflect anger and knee-jerk reactions.  It’s a context for humane solutions that  avert the destruction of nations, cultures and  the larger world family.

No matter your point of view concerning the ongoing violence in Gaza and Israel, please visit the following link and read the advertisement which provides rational bases for a lasting ceasefire. (If you agree with its suggestions, you can add your signature and/or make a contribution to its publication.)  Please visit: Network of Spiritual Progressives

The solutions posited by the ad are thoughtful, humane, specific and  mandate the participation of  all  nations.  They  require an understanding of the pain  inflicted and suffered  by all sides and recognize the dire  threat posed to the world family  if we do not  join to  end this degradation. (Many thanks to B. Sterner for forwarding it  to one of her Peace & Justice Groups and her lifelong work.)

I would  like to hear your responses to the advertisement.  Please take a moment to leave a comment here after reading the full text of the ad.

Additionally, Rep. Dennis Kucinich is sponsoring the following  legislation  for an immediate ceasefire:

http://peaceblog.wordpress.com/2009/01/12/kucinich-resolution-calling-for-cease-fire-in-gaza