U.S. must release photos of military detainee abuse, judge rules

The U.S. must release photographs showing abuse of detainees in Iraq and Afghanistan, a federal judge has ruled in a long-running clash over letting the world see potentially disturbing images of how the military treated prisoners.

U.S. District Judge Alvin Hellerstein's ruling Friday gives the government, which has fought the case for over a decade, two months to decide whether to appeal before the photos could be released. The American Civil Liberties Union has been seeking to make them public in the name of holding government accountable.

• CBC Radio Q | This is what former Abu Ghraib prisoners look like
• CIA torture report: 7 things we learned

"To allow the government to suppress any image that might provoke someone, somewhere, to violence would be to give the government sweeping power to suppress evidence of its own agents' misconduct," said Jameel Jaffer, ACLU deputy legal director. "Giving the government that kind of censorial power would have implications far beyond this specific context."

The Defence Department is studying the ruling and will make any further responses in court, spokesman Lt. Col. Myles Caggins III said.

The fight over the photographs reaches back to the early years of the wars in Iraq and Afghanistan, and it invokes the images of abuse at the Abu Ghraib prison in Iraq that sparked international outrage after they emerged in 2004 and 2006. Early in the 2004 lawsuit, the ACLU pointed to the Abu Ghraib photos as priority examples of records the organization was seeking on the treatment of detainees.

Releasing photos could incite attacks, U.S. argued

It's unclear how many more photographs may exist. The government has said it has 29 relevant pictures from at least seven different sites in Afghanistan and Iraq, and it's believed to have perhaps hundreds or thousands more, Hellerstein said in a ruling in August. He said some photos he had seen "are relatively innocuous while others need more serious consideration," and he has ruled that any images that would be released would be redacted to protect the identities of people in them.

Some photographs, taken by service members in Iraq and Afghanistan, were part of criminal investigations of alleged abuse. Some images show "soldiers pointing pistols or rifles at the heads of hooded and handcuffed detainees," then-Solicitor General — now Supreme Court Justice — Elena Kagan wrote in an appeal to the high court earlier in the case, which has taken a long road through the courts and Congress.

The government has long argued that releasing the photographs could incite attacks against U.S. forces and government personnel abroad, and officials have said that risk hasn't abated as the U.S. military role in Iraq and Afghanistan lessened.

Indeed, "the danger associated with release of these photographs is heightened now," amid the rise of the Islamic State militant group, Navy Rear Adm. Sinclair Harris, the vice director for operations for the Joint Chiefs of Staff, said in a December court filing. Islamic State, he said "would use these photographs to further encourage its supporters and followers to attack U.S. military and government personnel."

Amid the lawsuit, Congress passed a 2009 law allowing the government to keep the photos secret if the secretary of defence certified that unveiling them would endanger U.S. citizens or government or military personnel.

Defence secretaries have since done so, but Hellerstein said the government hasn't been specific enough.