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May 20 2015

Good Germans (Again)

Kind of a follow up to yesterday’s piece- Illinois Abu Ghraib.

Government Seeks ‘Emergency Stay’ of Decision Ordering Release of Thousands of Torture Photos

Kevin Gosztola, Firedog Lake

May 19, 2015 at 12:00 PM PDT

In March, Judge Alvin Hellerstein of the US District Court of the Southern District of New York was no longer willing to tolerate the government’s secrecy arguments or the government’s refusal to individually review each photo and explain why each photo would pose a national security risk if made public.

The judge immediately issued a temporary stay and gave the government 60 days to file an appeal.

With that 60-day period about to elapse, the government abruptly announced it would appeal on May 15 and filed a motion requesting a stay.



Back in August, when Hellerstein ruled that the Secretary of Defense’s certification for keeping the photos secret was “inadequate,” the government was instructed to individually review the photographs and inform the court of why each photograph could not be released. Government attorneys rebuffed his request.

In October and February, the court reminded the government that the Secretary of Defense had to certify each picture “in terms of its likelihood or not to endanger American lives.” It explained again afterward that the government could not certify a mass of photographs as a risk to national security. The government never complied, which led to the judge’s decision in March.



The government maintains in its motion that an “emergency stay” will cause minimal harm to the ACLU. On the other hand, no stay will mean the photographs are released and the “status quo” is destroyed. It will harm the ability of the government to appeal.

“The absence of a stay will cause the disclosure of records that the Secretary of Defense has certified to be exempt from disclosure under the PNSDA, a statute that was enacted by Congress in order to protect U.S. citizens, members of the US Armed Services, and US government employees from harm while overseas,” the government argues.

According to the government, the Secretary of Defense’s certification of the photographs is not subject to “judicial review.” They could remain in secret in perpetuity if the Secretary of Defense kept re-certifying them as a risk. The district court also erred in making its own “assessment of the likelihood of harm, based upon its own analysis of the military situation in Iraq. That was reversible error.”



While it is true that the “status quo” will be preserved if the government is granted an “emergency stay,” the ACLU suggests that is no argument for automatically granting such a stay because a stay will make it possible for the government to “continue to evade its statutory responsibility of openness to its citizens.”

This impacts the ACLU, which has worked to educate the public on the torture and abuse committed by US officials and military personnel. If the photographs continue to remain secret, the American public will remain in the dark on the extent of torture committed in their name.

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