"Following a two-hour closed hearing in New York on August 15, a federal judge ordered the government to reveal blacked-out portions of its legal papers arguing against the release of images depicting abuse of detainees at Abu Ghraib. The government has until August 18 to make the currently redacted statements public, or to appeal the decision.
The court will next hear arguments on August 30 to determine whether the Defense Department must release 87 photographs and four videos depicting abuse and torture at Abu Ghraib. "
The ACLU (and amici)'s brief is here (pdf). In it, they note that the Freedom of Information Act contains an exemption for "'records or information compiled for law enforcement purposes,' but only to the extent that release 'could reasonably be expected to endanger the life or physical safety of any individual.'" (p. 8) However, they argue that this exemption has previously been applied mostly to shield the names of law enforcement officials and witnesses who might be endangered by their release, and that in the two other cases in which this exemption has been used, it has been used to block the release of technical information on e.g. how to make machine guns. "The U.S. Supreme Court has found that the 'core purpose' of the FOIA is 'that the Government’s activities be opened to the sharp eye of public scrutiny,' that the Act exists to further 'public understanding of the operations or activities of the government.'" (p. 5). That being the case, they argue, it would be inconsistent with that purpose to extend the exemption to cover cases in which the release of information is dangerous precisely because its "content reveals illegal and immoral government misconduct so disturbing that it could reasonably be expected to provoke violent reactions in the public that sees them." (p. 8). Or, in short:
"The more outrageous official conduct becomes, the more danger posed by its revelation, and the better Exemption 7(F) will fit. In the end, the government’s request for expanded exemption coverage would reward misconduct by obscuring government accountability at a time when it is most necessary for the public to have full access to the facts."
As I wrote earlier, I do not for a moment discount the possibility that the release of these photos and videos could endanger people's lives. And if someone gets killed, it won't be one of the people responsible either for the interrogation policies that allowed this or for the abuses themselves, but some 19 or 20 year old who had nothing to do with it. But I can't see how we can interpret the law to allow policy-makers to allow appalling abuses in the knowledge that the very outrageousness of what they allow will prevent its disclosure. And, as I also said earlier, there were ways for those in charge to avoid this damage while protecting the rights of citizens to hold their leaders accountable. They could have either not allowed these abuses in the first place, or released the photos and videos as part of the trial of those responsible, both the soldiers who committed the crimes and their leaders who enabled them. They did neither, and now, as usual, soldiers on the ground will end up paying the price for their decisions.