Judge rules in favor of holding public hearings on detainee abuse

Larisa Alexandrovna

Following the latest round of filings by the Department of Defense in conjunction with the State Department -which attempts to stipulate that all current and future photographs and tapes of detainee abuse be permanently sealed and, in addition, the reasons given for the motion be heavily redacted - the court ruled largely in favor of public disclosure.

The government's most recent motion was filed several weeks back when it missed its deadline for the release of all documents pursuant to the ACLU's Freedom of Information Act (FOIA) suit, which has forced the release of over 60 thousand documents thus far in relation to detainee abuse and torture.

Sealing the reason for the seal


The question argued yesterday is not whether the photographs and tapes are to be made public, but whether the government's arguments against making the documents public are to be made public, filed as a declaration jointly by the DOD, represented by General Richard B. Myers, the chairman of the Joint Chiefs of Staff, and the State Department, represented Ronald L. Schlicher - Deputy Asst. Secretary of the Bureau of Near Eastern Affairs at an earlier hearing.

Reminiscent of much of State Department's recent attempts at interpreting the law, for example using the States Secret gag order against a whistleblower - a law that had only been used once before in its 50 year history, the DOD and State Department are once again attempting to seal the reasons themselves for sealing documents.

According to court transcripts, New York District Judge Alvin K. Hellerstein, who is presiding over the case, stated during the public portion of the hearing that:

"By and large I think it is fair to characterize that I ruled in favor of public disclosure, not because I was challenging the right and responsibility of the government to assert secrecy but because the arguments that were made were essential for the public understanding of whatever rulings I eventually make," said Hellerstein.

As part of its recent motion, the DOD argues that all evidence pertaining to detainee abuse and torture should be sealed permanently, never to be publicly released and that the reasons given for the motion should be largely redacted, released to the public only in parts.

In a rare court appearance, General Myers, who was joined by Schlicher filed a declaration on July 29, asking that the government's reasons for not releasing the photographs and footage be redacted in large part.

The hearing yesterday focused on the DOD/State joint declaration, with attorney's for both the ACLU and the government meeting in closed chambers with Judge Hellerstein for over two hours.

The court hearing yesterday was supposed to function in two parts: the first was the hearing on the government's motion to redact statements, or in essence not allow the reasons for blocking the abuse documents to be seen by the public; the second part of the hearing was the substantive part of the case on whether or not photos and tapes should be released.

Judge Hellerstein stated that the public had an "educational interest" in the reasons for sealing the abuse documents, and scheduled a public hearing for this Thursday.

The hearing this Thursday will address whether the government has agreed to accede to the court ruling that the DOD and State declarations be unredacted, or if they intend to appeal. The hearing will be public, but any appeals with regard to the DOD/State declarations may require closed door hearings as part of the larger public hearing.

The substantive argument, over whether the photos/videos should be released was rescheduled to August 30.

In a statement released last week, ACLU Executive Director Anthony D. Romero expressed his concerns over the unprecedented use of a particular clause in the FOIA law. "The government's recent actions make a mockery of the Freedom of Information Act," said Romero. "The Defense Department has long dragged its heels on coming clean about the systematic and widespread abuse of detainees, but denying the public the right to even hear its legal arguments for withholding information is a new low."

On August 2, Representative Henry Waxman (D-CA) issued a letter to Attorney General Alberto Gonzales explaining the FOIA statute and the concern for the State's attempt to interpret the law and misapply it toward government secrecy. "The FOIA exemption was designed to provide a basis for protecting the identity of confidential sources," wrote Waxman.

Unprecedented use of FOIA statute

The FOIA statute being used by the DOD to seal the abuse documents as well as the reasons for the sealing has never before been used by a government agency as a means by which to classify government misdoings. The statute of the FOIA, section 552(b) of Title 5 USC, subparagraph (f), has only ever been used by law enforcement and only in special circumstances and is defined as follows:

"records or information compiled for law enforcement purposes are exempt from production-but only to the extent that the production of such law enforcement records or information - could reasonably be expected to endanger the life or physical safety of any individuals."

The DOD argues that the release of photographs and other evidence of torture and abuse falls under subparagraph (f). The ACLU, however, argues that the evidence proves a policy that is systemic and largely not prosecuted. The photographs and footage in question have been reported on widely by The New Yorker's Seymour Hersh:

"The roots of the Abu Ghraib prison scandal lie not in the criminal inclinations of a few Army reservists but in a decision, approved last year by Secretary of Defense Donald Rumsfeld," wrote Hersh.

Hersh goes on to explain the DOD policy further: "The Pentagon's operation, known inside the intelligence community by several code words, including Copper Green, encouraged physical coercion and sexual humiliation of Iraqi prisoners."

Congressman John Conyers (D-MI) issued a comment to Raw Story, saying that, "by attempting to keep the abuse cases secret [as well as] the legal arguments they offered, the Administration is breaking new ground in their effort to insulate themselves from public review."

"It is truly Kafkaesque to envision a government which does not even permit its legal arguments to be disclosed for publlic scrutiny," continued Conyers. "This not only violates the Freedom of Information Act, it turns the Act on its head."

The ACLU filed its FOIA suit in 2003, along with the Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense and Veterans for Peace. On August 4, a coalition of 14 news organizations and special interest groups, led by the Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief, urging the court to enforce the release of all detainee abuse documents, photographs and, footage. The coalition includes CBS Broadcasting Inc., NBC Universal Inc., and The New York Times Co.

Originally published on Tuesday August 16, 2005.


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