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The Department of Defense must give the American Civil Liberties Union 74 photographs of mistreated detainees at the infamous Abu Ghraib prison in Iraq, a federal judge ruled Thursday. Southern District of New York Judge Alvin K. Hellerstein rejected claims by the department that the photographs, seized by investigators probing the abuse at the prison, were exempt from production under the Freedom of Information Act. The judge’s ruling in American Civil Liberties Union v. Department of Defense, 04 Civ. 4151, dismissed the government’s argument that it was entitled to withhold the photos, as well as some videotapes, because their release would likely incite violence against American troops and Iraqi and Afghan personnel and civilians. “The terrorists in Iraq and Afghanistan do not need pretexts for their barbarism; they have proven to be aggressive and pernicious in their choice of targets and tactics,” he said. ” … my task is not to defer to our worst fears, but to interpret and apply the law, in this case the Freedom of Information Act, which advances values important to our society, transparency and accountability in government.” Hellerstein also could not accept the government’s claim that the release of the photos would constitute an “unwarranted invasion of personal privacy.” The photos were taken by Joseph Darby, a military policeman assigned to Abu Ghraib. Hellerstein viewed the photos in camera in both their original form and with redactions designed to shield the identity of the detainees. Having conducted his review, the judge said there was no invasion of personal privacy under Exemptions 6 and 7 (C) of the Freedom of Information Act, 5 U.S.C. �552. “With the exception of the small number of Darby photographs that I ordered to be withheld, where the risk of exposure is too great and the informational value is minimal, the balancing analysis weighs in favor of disclosure in the present case,” Hellerstein said. “There is substantial public interest in these pictures, evidenced by the active public debate engendered by the versions previously leaked to the press, or otherwise obtained by the media.” The ACLU had argued that the Darby photos should be released to trigger debate about the breakdown of command discipline at the prison and, possibly, similar breakdowns at other prisons, including the detention center at Guantanamo Bay. Hellerstein suggested that release of the photos might shed light on the government’s performance of its statutory duties and contribute significantly to the public’s understanding of government operations or activities. “These are the very purposes that FOIA is intended to advance,” he said. And there is no “alternative, less intrusive means by which the information may be elicited,” he said, adding that “the redacted originals, rather than piece-meal leaks and possibly partial depictions of several of the pictures, are more probative of what Darby and his fellow military personnel actually did.” The government had also argued that the forced production of the photos would be a violation of the United States’ obligations under the Geneva Convention Relative to the Treatment of Prisoners of War and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War. The Department of Defense said the United States has historically viewed the two conventions as forbidding the taking and publishing of photographs of detainees. But Hellerstein said the redactions in many of the photos and his decision not to compel the production of other photos “should protect civilians and detainees against ‘insults and public curiosity’ and preserve their ‘honor.’” The exemption relied on by the government is 7(F) of the Freedom of Information Law, which is intended to protect law enforcement personnel and, the judge said, “all those put at risk through their participation in law enforcement proceedings, whether as sources of information or as witnesses.” While the government contended that the court should defer to its judgment that the safety of troops and civilians would be endangered if the photos were released, Hellerstein disagreed, saying “It is clear to me that the core values that Exemption 7(F) was designed to protect are not implicated by the release of the Darby photographs.” While the office of Southern District U.S. Attorney Michael Garcia said it was reviewing its options in the case, ACLU Executive Director Anthony Romero fully expects the government to appeal to the decision to the 2nd U.S. Circuit Court of Appeals. Romero said in a statement that the decision was “a historic ruling,” and a “step toward ensuring that our government’s leaders are held accountable for the abuse and torture that happened on their watch. The American public has a right to know what happened in American detention centers, and how our leaders let it occur.” Arthur Eisenberg, legal director of the New York Civil Liberties Union, said the ruling “goes to the heart of our democracy. How our government should behave in the conduct of a war is among the most difficult questions we face as a democratic society and in order to reach informed judgments about such matters, the American people need to know, and are entitled to know, how the government is behaving. Today’s decision dramatically advances our society’s interest in democratic decisionmaking.” Demetrios Christos Batsides, Jennfier Ching and Lawrence S. Lustberg of Gibbons, Del Deo, Griffinger & Vecchione in Newark, N.J., represented the ACLU and other plaintiffs. The government was represented by now-former U.S. Attorney David Kelley and Assistant U.S. Attorneys Sean H. Lane, Heather Kirsten McShain and Peter M. Skinner.

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