Legal Battle Erupts Over New Abu Ghraib Photos

by William Fisher

(IPS) NEW YORK -- As the Pentagon appointed a former ACLU lawyer to head the defense team representing detainees at Guantanamo Bay, Cuba, it took steps to throw a roadblock into the release of a new batch of photos from Abu Ghraib prison in Iraq.

The ACLU charged that the government was attempting to prevent the public from seeing detainee abuse evidence by filing sealed documents in U.S. District Court in Manhattan to support its argument that that dozens of photographs cannot be released because they would result in a safety threat to individuals.

"We obviously express skepticism about the latest move on the government's part to withhold information the public is clearly entitled to," said Amrit Singh, a staff attorney with the ACLU.

"Instead of releasing these records and holding officials accountable for detainee abuse, the government now seeks to shield itself from public scrutiny by filing these reasons in secret," he said.

Abu Ghraib gained worldwide notoriety in April 2004 when a U.S. television network publicized graphic and disturbing photos of prisoner abuse by U.S. military personnel.

The ACLU said in a statement that the government raised its new challenge to releasing new pictures and videos from Abu Ghraib prison on the same day it was supposed to show the exhibits to a judge presiding over the case.

A government lawyer said the government did file papers in the case under seal, but said he could not discuss their contents for that reason.

Singh said the delay by the government would be challenged in court by the ACLU, which filed a lawsuit in October 2003 seeking information on the treatment of detainees in U.S. custody and the transfer of prisoners to countries known to use torture. The ACLU contends that prisoner abuse is systemic.

The government has argued that releasing pictures, even in redacted form, would violate Geneva Convention rules on prisoner treatment by subjecting detainees to additional humiliation or embarrassment.

Meanwhile, the Pentagon announced the appointment of a new chief defense counsel for the Guantanamo Bay, Cuba trials. He is Marine Lt. Col. Dwight Sullivan, a reservist called to active duty from a six-year stint at the ACLU.

The ACLU said Sullivan will preside over a Pentagon defense team sworn to defend suspected terrorists and that has vowed to challenge the Bush administration's military tribunals before the U.S. Supreme Court.

"Dwight Sullivan will bring renewed energy to the defense team at a critical time in the proceedings," said Anthony Romero, executive director of the ACLU. "He uniquely possesses substantial knowledge of military law and deep commitment to civil liberties."

As managing attorney of the ACLU's Baltimore office, he has litigated in civilian courts and worked on a wide range of civil liberties issues -- including gay rights, police brutality, and the white supremacist Ku Klux Klan's right to take part in an adopt-a-highway program.

Sullivan will oversee attorneys from all branches of the military who are defending four captives: Australian David Hicks, 29; Yemeni captives Salim Hamdan, 35, and Ali Hamza al Bahlul, 37; and Sudanese Ibrahim al Qosi, 45.

Susan Goering, executive director of the ACLU's Maryland division, said Sullivan has inherited in the Military Commissions "a terrible, terrible process that's outside the Constitution."

She called it "a system that's in disarray," struggling with "everything from incompetent translators to the way it's structured, the lack of independent review, to use of secret evidence. But I do trust that Dwight will handle it with integrity."

Critics say the commissions tip the scales toward the government; that secrecy provisions mean an accused terrorist cannot see secret evidence against him; and that only one of the judges has legal training.

Brian J. Foley, a professor at Florida Coastal Law School in Jacksonville, told IPS, "The recent decision by a Federal appeals court reversed the lower court opinion that was holding up at least one trial, and it streamlined the process by saying that the military tribunals, before a prisoner's trial, can fulfill the international law standard of determining whether the prisoner is an enemy combatant or POW."

"The court didn't address the problem that these tribunals can use secret evidence but indicated that challenges to secret evidence will have to be pursued by prisoners after they're convicted," he said. "But it probably didn't change things in the short run because the tribunals likely will be held up by an appeal of this case to the Supreme Court."

Sullivan, who worked in the ACLU's Baltimore office from 1997 until he was mobilized on the eve of the U.S. invasion of Iraq in 2003, takes charge at a key time.

Last week, a federal appeals court, including Supreme Court nominee John G. Roberts Jr, unanimously upheld the constitutionality of Pres. Bush's commissions, overturning a lower court that froze the process in November.

Court sessions could reconvene at the naval base in Cuba in late August or early September.

Sullivan has a law degree from the University of Virginia. His first 10 years as a lawyer were as an active-duty Marine Corps officer.

The new Abu Ghraib development was triggered by a government letter claiming that the photographs and videos of abuse that the court had previously ordered redacted for future release "could result in harm to individuals" for reasons that will be set forth in a memorandum and three declarations that the government will file under seal with the U.S. District Court of the Southern District of New York.

The ACLU charged that the Defense Department "is raising newfound reasons for withholding records to which the public has an undeniable right."

Under the government's proposal, the documents explaining the government's reasons for withholding the images of abuse will not be available to the public except in redacted form, and the photographs and videos may never be made public.

In other developments relating to prisoner interrogation, the Bush administration has been lobbying to block legislation supported by Republican senators that would bar the U.S. military from engaging in "cruel, inhuman or degrading treatment" of detainees, from hiding prisoners from the Red Cross, and from using interrogation methods not authorized by a new Army field manual.

Vice Pres. Dick Cheney has met with senior Republican members of the Senate Armed Services Committee to press the administration's case that such legislation would usurp the president's authority and interfere with his ability "to protect Americans effectively from terrorist attack."

Congress believes it has the authority to legislate on capture and treatment of prisoners.