The Pentagon's more than decade-long legal battle to continue suppressing a trove of photographs exposing the Bush-era torture at U.S. military facilities in Iraq and Afghanistan may have reached a critical juncture on Wednesday.
During a hearing, the Guardian's Spencer Ackerman reported, a federal judge expressed frustration over how the Pentagon came to determine that each of 1,800 photos must be suppressed because they supposedly jeopardize national security.
"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," Ackerman reports Hellerstein as saying.
“My complaint is there are no articulations,” Hellerstein said. The government “has not said why ‘this particular’ photo is dangerous”.
Hellerstein said he would formally rule on the matter in the “near future”, a process that may compel the Pentagon to disclose additional photographs.
In March 2015, Hellerstein ruled that the government "is required to disclose each and all of the photographs" in response to a Freedom of Information Act Request from the ACLU, and said it appeared the administration was continuing to stall their release.
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"The Government has known since August 27, 2014 that I considered a general, en grosse certification inadequate. Certainly, that has been clear since the hearing on February 4, 2015. I commented on February 4th that it appeared the Government's conduct reflected a 'sophisticated ability to obtain a very substantial delay,' tending to defeat FOIA's purpose of prompt disclosure," he said at the time.
During that Feb. 4, 2015 hearing Hellerstein said the case had reached "a line in the sand," and issued the Pentagon a deadline to submit its reasons for suppressing each of the photos.
When, in February 2016, the Pentagon was forced to release nearly 200 photographs of the trove which showed bruises, lacerations, and other injuries inflicted on prisoners presumably by U.S. military personnel, the ACLU said they proved "systemic abuse of detainees."
Yet, they "are almost certainly the most innocuous of the 2,000 that were being withheld," according to Eliza Relman, a paralegal with the ACLU's National Security Project.
And beyond the level of abuse and torture they may show is that they may provide further evidence that such treatment could only have been the result of a directive from the highest levels, according to the rights group.
"What the photos that the government has suppressed would show is that abuse was so widespread that it could only have resulted from policy or a climate calculated to foster abuse," said ACLU staff attorney Alex Abdo, adding that no senior official has been held accountable for the abuses.