Editor’s note: This story contains detailed descriptions of the 44 torture and abuse photographs President Obama had decided against releasing to the ACLU. This story was originally published May 15, after Obama reversed course and said he would not turn over the pictures to the civil rights organization. The Daily Telegraph claimed in a story published last week that Obama was withholding photographs that depicted U.S. soldiers raping Iraqi prisoners. There is no doubt those photographs do exist. In fact, many of those graphic photographs and videos are in the possession of the Army’s Criminal Investigation Division. However, the photographs characterized by The Telegraph are not the pictures that the 2nd Circuit Court of Appeals ordered the Defense Department to release to the ACLU. Obama had originally agreed to abide by that order. But the Obama administration now says it intends to appeal the case to the Supreme Court. The Public Record hopes that by republishing this story we can help clear up the confusion revolving around the prisoner abuse and torture photographs that are being withheld.
By Jason Leopold
U.S. Army soldiers in Afghanistan took dozens of pictures of their colleagues pointing assault rifles and pistols at the heads and backs of hooded and bound detainees and another photograph showed two male soldiers and one female soldier pointing a broom to one detainee “as if I was sticking the end of a broom stick into [his] rectum,” according to the female soldier’s account as told to an Army criminal investigator.
I found the documents that describes the photographs that were set for release at the end of the month on the website of the American Civil Liberties Union. The ACLU has been trying to gain access to the photographs for nearly six years. The ACLU obtained the files describing the pictures in 2005 as part of the organization’s wide-ranging Freedom of information Act lawsuit against the Bush administration seeking documents related to the treatment of “war on terror” prisoners in U.S. custody.
Amrit Singh, an ACLU staff attorney, confirmed that the photographs described in documents posted on the group’s website were those that President Obama has decided to withhold because he said he feared the disclosure would stoke anti-American sentiment and endanger U.S. troops.
In fact, the entire case file, which includes court documents and declarations from former Pentagon officials describing the details of the photographs at issue is posted online. It appears that not a single reporter or media organization covering the abuse/torture photographs in question has taken the time to read the documents to get a better understanding of the images that the Bush administration, and now President Obama, has refused to release in defiance of a court order.
Last September, the U.S. Court of Appeals for the 2nd Circuit ordered the prisoner abuse photographs released. The Bush administration challenged the ruling, and in March the court denied that petition. The appeals court also shot down the Bush administration’s attempt to radically expand Freedom of Information Act exemptions for withholding the photos, stating that the Bush administration had attempted to use the FOIA exemptions as “an all-purpose damper on global controversy.”
In an April 23, letter to U.S. District Court Judge Alvin Hellerstein, Lev Dassin, acting U.S. Attorney for the Southern District of New York, wrote that in addition to the 44 photographs the Obama administration intended to release “the government is also processing for release a substantial number of other images contained in Army CID reports that have been closed during the pendency of this case.”
The appeals court panel ordered the 21 photographs taken in Afghanistan and in Iraq that depicts detainees being abuse to be released. About 23 other pictures taken at undisclosed locations in Iraq and Afghanistan were also subject to release.
About 31 digital photographs contained on a compact disc discovered in June 2004 during an office clean-up at Bagram Airfield also depicted the corpse of “local national” who died from “apparent gunshot wounds” and uniformed U.S. soldiers from the Second Platoon of the 22nd Infantry Battalion stationed at Fire Base Tycze and Dae Rah Wod (DRW) kicking and punching prisoners whose heads were covered with “sand bags” and blindfolds and hands were “zipped-tied,” according to a U.S. Army criminal investigation. The documents related to that investigation can be found in these five separate files: [Part 1] [Part 2] [Part 3] [Part 4] [Part 5].
The soldiers said they intended to keep the prisoner abuse photographs as “mementos” to recall their deployment in Afghanistan, according to an Army criminal investigation.
The Pentagon banned the use of hoods following the Abu Ghraib prison scandal, where shocking photos were leaked of sexual and physical abuse in 2004. According to a report on prisoner abuse prepared for the Department of Defense by James Schlesinger, orders signed by Bush and Rumsfeld in 2002 and 2003 authorizing brutal interrogations “became policy” at Guantanamo and Abu Ghraib.
The documents describing the photographs were part of separate reports prepared in May, August, and July 2004 by the Army’s Criminal Investigative Division into the abuse of detainees in U.S. custody in Afghanistan and Iraq.
Another photograph that was set for release at the end of month that is now being withheld was taken in December 2003 and was found on a government computer. The image shows three soldiers at the St. Mere Forward Operating Base posing with three Iraqi detainees “zip-tied to bars in a stress position, fully clothed, with hoods over their heads.”
One female soldier in the photo is pointing a broom “as if I was sticking the end of a broom stick into the rectum of a restrained detainee,” she testified to Army investigators in April 2004.
On March 27, 2004, this soldier sent an e-mail to an undisclosed number of her colleagues. She discovered that the photograph she appeared in had been widely disseminated and that she was under investigation.
You guys have a picture of me holding a broom near a detainee. I don’t have a copy of this picture anywhere…but some Marine got a hold of it and now I’m being investigated for detainee abuse. I guess one of you share the photos with the Marines…but either way, they have a copy of that picture.
Anyway, this email serves two purposes. First, I know that at least one more of you guys is in the picture, but I cannot remember who. If I’m being investigated…I’m sure that the other individuals in this picture will be investigated as well, so heads up! Secondly, can I please have a copy of this picture ASAP!!! I can’t stress how badly I need this picture so I can show people that it was just a posed shot, and that I wasn’t physically beating anyone with a broom.
One of the recipients of the soldier’s e-mail replied the same day with a copy of the photograph and a note that said “I can’t see how they think this is anything but fun.”
The female soldier interviewed by Army criminal investigators testified that she did not remember why the Iraqi prisoners in the photograph were “flexicuffed to the bars…and have sandbags covering their heads,” but “detainees were put in that stress position either because the interrogators felt that the detainee could provide further intelligence, or because the detainee was a disciplinary problem.” She said the detainees weren’t placed in that position for the photograph but were “already there when we decided to take the picture.”
That investigation was initiated by the Office of the Secretary of Defense, which was headed by Donald Rumsfeld and found evidence that several soldiers “committed the offenses of conspiracy, failure to obey a general order, and cruelty and maltreatment when they posed for an inappropriate photograph with detainees.
The female soldier who appeared in the photo testified, “The other interrogators and I did not have a lot of work to do for a couple of days. Myself and several other MPs… were fooling around in the prison, and SGT [redacted] took several photographs.”
The soldier said “everyone” was taking pictures and he was unaware of a “no picture” taking policy. “It was always an [military interrogator] call to zip-tie them and put them in certain positions.”
The Army investigative report into the photographs found on the compact disc is more than 500 pages and determined that eight soldiers, whose identities were redacted, “committed the offense of dereliction of duty, when as guards detailed to secure and protect detainees, they willfully failed to perform their duties with no reasonable or just excuse, by jokingly pointing weapons at the bound detainees, and exposed photographs of this unwarranted activity.”
Soldiers admitted that dozens of other photographs of prisoner abuse were destroyed after the Abu Ghraib prison scandal broke in May 2004. A separate Army criminal investigative report prepared that month also found that a soldier “possessed a photograph of himself pointing what appears to be a pistol at an unidentified [prisoner], whose hands were tied and his head covered laying down.”
The soldiers interviewed said Special Forces out of Fort Bragg was in charge of operating the military facilities where the photographs were taken and had never provided soldiers with any written guidelines on how to handle detainees.
In addition, soldiers interviewed said Special Forces Psyops and military interrogation teams authorized them to “play loud music and keep detainees awake if the interrogators wanted them to.”
One soldier said they “kept the detainees awake by holding them up or by playing the loud music,” the report noted. The soldier said Special Forces instructed soldiers that prisoners who were “violent or had information” were “flex-cuffed on their hands, heads covered and not allowed to sleep.”
Sleep deprivation, which is what the soldier appears to be describing, would be a violation of the Geneva Conventions ban on cruel and inhumane treatment and underscores how the Bush administration’s interrogation policies trickled down to low-level soldiers in Afghanistan and Iraq.
One soldier admitted during a July 2004 interview with an Army investigator that he took “bad photographs” before “the incident in Iraq,” which Is likely a reference to the Abu Ghraib prison scandal. The soldier characterized the “bad photographs” as those in which the “public would be outraged” if it was released. He went on to state “that he was standing behind a prisoner with a weapon holding it at their head” in one of the two photographs he appeared in.
The corpse of the dead Afghanistan national was photographed sometime in January 2004 after he was shot to death by U.S. soldiers who believed he was responsible for a rocket-propelled grenade attack on Fire Base Tycze that seriously wounded three U.S. Soldiers. However, an investigation into the incident was never conducted.
Most of the soldiers interviewed in all of the incidents stated that they were not aware of any set policy on the treatment of detainees, and did not realize at the time that their actions were wrong nor did they believe it was inappropriate. A sergeant stated that he had also seen pictures on Army computers of detainees being kicked, hit or inhumanely treated while in U.S. custody.
Another soldier said he had “seen a few pictures of this nature before but thought nothing of it since these people are the ones that are trying to kill us.”
On Wednesday, Obama told reporters that the photographs “are not particularly sensational.”
Obama said that his decision to withhold the photographs stemmed from his personal review of the photos and his concern that their release would endanger American soldiers in Iraq and Afghanistan. But pressure from Bush administration holdovers, the media and two senators also played a role.
Obama’s reversal marks a renewal of U.S. hypocrisy regarding the abuse of detainees and the hiding of evidence about such crimes.
For instance, last September in upholding a lower court ruling ordering the release of the photos, the U.S. Court of Appeals for the 2nd Circuit noted that past U.S. administrations had championed the release of photos that showed prisoners of war being abused and tortured.
Notably, after World War II, the U.S. government publicized photos of prisoners in Japanese and German prisons and concentration camps, which the court noted, “showed emaciated prisoners, subjugated detainees, and even corpses. But the United States championed the use of the photos as a means of holding the perpetrators accountable.”
The Bush administration’s legal arguments were rife with other examples of hypocrisy, including an argument that release of the photos – even with the personal characteristics of detainees obscured – would violate their privacy rights under the Geneva Conventions.
The irony was that the Bush administration – with the help of legal opinions drafted by Justice Department lawyers – had maintained that detainees from the war in Afghanistan and the larger “war on terror” were not entitled to prisoner of war protections under the Geneva Conventions.
Indeed, an action memo signed by President Bush on Feb. 7, 2002, opened the door to abusive treatment by declaring that the Third Geneva Convention, which sets standards for treatment of prisoners from armed conflicts, did not apply to the conflict with al-Qaeda and that Taliban detainees were not entitled to the convention’s legal protections.
The ACLU argued that the Bush administration’s legal strategy was “surprising because there would be no photos of abuse to request had the government cared this much about the Geneva Conventions before the abuses occurred and the photos were taken.”
In disputing the administration’s selective application of these international standards, the ACLU noted “the Geneva Conventions were designed to prevent the abuse of prisoners, not to derail efforts to hold the government accountable for those abuses.”
Federal courts agreed with the ACLU’s arguments. The 2nd Circuit Court of Appeals deemed the Bush administration’s position legally flawed and added that releasing “the photographs is likely to further the purposes of the Geneva Conventions by deterring future abuse of prisoners.”
The appeals court also shot down the Bush administration’s attempt to radically expand Freedom of Information Act exemptions for withholding the photos, stating that the Bush administration had attempted to use the FOIA exemptions as “an all-purpose damper on global controversy.”
Obama’s decision to fight to conceal the photos marks an about-face on the open-government policies that he proclaimed during his first days in office.
On Jan. 21, he signed an executive order instructing all federal agencies and departments to “adopt a presumption in favor” of Freedom of Information Act requests and promised to make the federal government more transparent.
“The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears,” Obama’s order said. “In responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.”
The Obama administration has until June 9 either to re-argue the case before the 2nd U.S. Circuit Court of Appeals in New York or to petition the U.S. Supreme Court to review the matter.
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