A federal judge has sharply rebuked the Pentagon for the process by which it concealed hundreds of Bush-era photos showing US military personnel torturing detainees in Iraq and Afghanistan, suggesting Barack Obama may have to release even more graphic imagery of abuse.
Alvin Hellerstein, the senior judge who has presided over a transparency lawsuit for the photos that has lasted more than 12 years, expressed dissatisfaction over the Pentagon’s compliance with an order he issued last year requiring a case-by-case ruling that release of an estimated 1,800 photographs would endanger US troops.
“We don’t know the methodology, we don’t know what was reviewed, we don’t know the criteria, we don’t know the numbers,” Hellerstein said during an hour-long hearing on Wednesday.
Hellerstein said he would formally rule on the matter in the “near future”, a process that may compel the Pentagon to disclose additional photographs.
Tara LaMort, a justice department attorney, argued to Hellerstein that a multi-layered review of the photographs, conducted by the military officers on the Pentagon’s joint staff, had determined that disclosing the vast majority of the photographic treasure trove would provide terrorist groups with propaganda useful for recruitment.
Yet Hellerstein, a Bill Clinton appointee who said he has tried to give Obama and George W Bush deference on keeping potentially inflammatory photos secret, told LaMort that determination was “not enough” for judicial review because it omitted the reasoning behind withholding specific photographs.
“My complaint is there are no articulations,” Hellerstein said. The government “has not said why ‘this particular’ photo is dangerous”.
LaMort acknowledged she was facing an “uphill battle” before the judge, who replied: “I should say: you’re good at that.”
In February, the Pentagon released 198 torture photographs from the hoard, following a certification from defense secretary, Ashton Carter, that they posed a negligible threat to US service members. That certification resulted from Hellerstein’s order in 2015, following an October 2014 ruling, rejecting the position of two US presidents that none of the photographs ought to be made public.
The 198 photos released in February display bruises, bandaged body parts and reddened marks on unidentified detained people. Attorneys for the American Civil Liberties Union, which has sought release of the photographs since 2004, immediately suspected that Carter had only marked the most innocuous of the photographs for release as a means of ending the disclosure lawsuit.
The ACLU has pursued the case for over a decade, through setbacks in both Hellerstein’s courtroom and in higher appellate courts, because it argues that the photographs represent evidence of crimes. Their suppression, the ACLU contends, distorts the historical record about the extent the US engaged in torture.
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