home | about | documents | news | postings | FOIA | research | internships | search | donate | mailing list


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

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


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

home | about | documents | news | postings | FOIA | research | internships | search | donate | mailing list

Contents of this website Copyright 1995-2017 National Security Archive. All rights reserved.
Terms and conditions for use of materials found on this website.