SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2008, Issue No. 93
September 24, 2008

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COURT ORDERS RELEASE OF DETAINEE ABUSE PHOTOGRAPHS

A federal court of appeals this week affirmed that 21 photographs depicting abusive treatment of detainees by U.S. soldiers in Iraq and Afghanistan must be disclosed under the Freedom of Information Act.

"The public interest in disclosure of these photographs is strong," the Second Circuit panel concluded in a September 22 ruling in favor of the American Civil Liberties Union and other plaintiffs.

The ruling carefully analyzed and rejected several government arguments against disclosure.

Among other things, the government had contended that the photographs should be exempted from disclosure under FOIA exemption 7(F), which protects law enforcement records that "could reasonably be expected to endanger the life or physical safety of any individual." Government attorneys said that release of the photographs (which were gathered in the course of an Army criminal investigation) could be used to incite violence against U.S. forces, coalition forces or civilians in Iraq or Afghanistan, and should therefore be withheld.

But even if potential incitement is a valid concern, the court said, it would not provide a basis for invoking FOIA exemption 7(F), which was intended to serve as "a shield against specific threats to particular individuals arising out of law enforcement investigations, never as a means of suppressing worldwide political violence." The exemption is not supposed to be "an all-purpose damper on global controversy."

In short, the court ruled, the cited FOIA exemption cannot be used as "an ersatz classification system" to bar access to these unclassified photographs.

Nor can the government legitimately invoke the Third and Fourth Geneva Conventions that protect prisoners "against insults and public curiosity."

"Both of these treaties were designed to prevent the abuse of prisoners," the court explained. "Neither treaty is intended to curb those who seek information about prisoner abuse in an effort to help deter it."

At the end of World War II, the court noted, the government itself "widely disseminated photographs of prisoners in Japanese and German prison and concentration camps. These photographs of emaciated prisoners, corpses, and remains of prisoners depicted detainees in states of powerlessness and subjugation similar to those endured by the detainees depicted in the photographs at issue here. Yet the United States championed the use and dissemination of such photographs to hold perpetrators accountable."

In the same way, "Release of the photographs is likely to further the purposes of the Geneva Conventions by deterring future abuse of prisoners," the court concluded.

A copy of the 52 page ruling in ACLU et al v. Department of Defense et al is posted here:

"These photographs demonstrate that the abuse of prisoners held in U.S. custody abroad was not aberrational and not confined to Abu Ghraib, but the result of policies adopted by high-ranking officials," said Amrit Singh, the ACLU attorney who argued the case.

"Their release is critical for bringing an end to the administration's torture policies and for deterring further prisoner abuse," Ms. Singh said.


COURT ORDERS PRESERVATION OF VICE PRESIDENTIAL RECORDS

In a rare judicial rebuff to the Office of Vice President Dick Cheney, a federal court issued a preliminary injunction requiring the preservation of Vice Presidential records over the objections of Administration attorneys.

A lawsuit brought by Citizens for Ethics and Responsibility in Washington (CREW) along with historians and others alleged that the Office of Vice President had improperly limited the scope of records that it said would be preserved under the Presidential Records Act, and that records outside the scope of that definition were liable to be destroyed.

Judge Colleen Kollar-Kotelly agreed that there was no legal basis on the record for the Vice President's position. On September 20, she ordered the government to preserve all official Vice Presidential records "without regard to any limiting definitions that Defendants may believe are appropriate."

"It's a pretty strong opinion," said Anne Weismann, chief counsel for CREW. "They will be prevented from destroying anything. It basically means they have to preserve everything in the broadest possible interpretation of what the law requires -- not their narrow interpretation."


NEW LIGHT ON PRIVATE SECURITY CONTRACTORS IN IRAQ

The use of thousands of private security contractors in Iraq represents a quantitatively new feature of U.S. military operations, but relatively little has been publicly disclosed about the contractual arrangements involved.

The war in Iraq "is apparently the first time that the United States has depended so extensively on contractors to provide security in a hostile environment," according to a recently updated Congressional Research Service report.

But "the use of armed contractors raises several concerns, including transparency and accountability," the CRS report said.

"The lack of public information on the terms of the contracts, including their costs and the standards governing hiring and performance, make evaluating their efficiency difficult. The apparent lack of a practical means to hold contractors accountable under U.S. law for abuses and other transgressions, and the possibility that they could be prosecuted by foreign courts, is also a source of concern," the CRS report said.

Thanks to a Freedom of Information Act request filed by David Isenberg of United Press International, new information is now available on the U.S. State Department's Worldwide Personal Protective Services (WPPS) contract, which provides security services throughout Iraq (as well as Afghanistan, Bosnia and Israel).

UPI obtained the WPPS contract specifications from the State Department and reported on the material in "Dogs of War: WPPS World" by David Isenberg, September 19:

The newly disclosed contract material itself was posted by UPI here:

Extensive background information on the issue is available from the Congressional Research Service in "Private Security Contractors in Iraq: Background, Legal Status, and Other Issues," updated August 25, 2008:


DEPT OF DEFENSE ROLE IN FOREIGN ASSISTANCE, AND MORE FROM CRS

The structure, development and ramifications of growing U.S. Department of Defense foreign assistance activities are described in a major new report from the Congressional Research Service. See "The Department of Defense Role in Foreign Assistance: Background, Major Issues, and Options for Congress," August 25, 2008:

Other noteworthy new reports from CRS that have not been made readily available to the public include the following.

"Pay-for-Performance: The National Security Personnel System," September 17, 2008:

"The Defense Base Act (DBA): The Federally Mandated Workers' Compensation System for Overseas Government Contractors," September 15, 2008:

"The North Korean Economy: Leverage and Policy Analysis," updated August 26, 2008:

"Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments," updated August 21, 2008:

"Periods of War," updated August 19, 2008:

"The Manhattan Project, the Apollo Program, and Federal Energy Technology R&D Programs: A Comparative Analysis," September 3, 2008:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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