If you heard there was a hearing on the release of additional Abu Ghraib photos and videos yesterday, you are well ahead of the curve. With the media focussed on the devastation of Katrina, there is little chance for the spotlight to fall on Abu Ghraib. The Pentagon and CIA can only rejoice. In May 2004, according to CNN, “Rumsfeld told Congress the unrevealed photos and videos contain acts 'that can only be described as blatantly sadistic, cruel and inhuman.’” If Rumsfeld found them "sadistic, cruel and inhuman," you know they can't be good.

As far as I can tell, only Larry Neumeister of the AP reported on yesterday's hearing. This case is important not only because of the seriousness of the materials under contention but also for what it reveals about this administration's response to any judicial order.

What the MSM commentators (and bloggers, for that matter) are missing is the willingness of any department of the Executive Branch simply to ignore a judicial order, aside from showing up for the inevitable next hearing. A completely remarkable state of lawlessness has been growing in the Bush administration, and the media report (if at all) each particular instance without noting the overall trend.

The ACLU's effort to obtain these materials has itself followed such a torturous path that I will try to sort it out.

A brief history

The ACLU filed a Freedom of Information Act (FOIA) request on October 7, 2003, that demanded "the release of information about detainees held overseas by the United States." The ACLU requested an expedited release. On October 30 the Pentagon refused

claiming that the subject matter of the request was not "breaking news" and that there was no "compelling need" for the immediate release of information about the mistreatment of detainees. The Defense Department also claimed that expediting the request was unnecessary because failure to expedite would not "endanger the life or safety of any individual."

This should be known as a "Pentagon home-run," since the Defense Dept. lied on all three bases.

In May 2004 the ACLU filed a supplemental FOIA request, the Pentagon again rejecting an expedited release of any materials.

The ACLU went to court in an attempt to compel the Dept. of Defense to comply with the FOIA requests in August 2004. The government argued that the judge did not have jurisdiction. Judge Hellerstein thought otherwise, and the judge so ordered on August 17, 2004.

By the following week the Pentagon was still seen to be stonewalling—

The ACLU has already provided the government with a list of specific records that it knows are in the government’s possession. The court last week ordered the government to either turn over the records requested in that list or review the documents and provide specific reasons for not releasing them. Rather than actually comply with that order, the government has neither released the records nor completed its review. Instead, it has withheld the records, arguing that they may be exempt from release once they are actually reviewed. In many cases, the government has not stated when its review will be completed.

The parties returned to court on September 7, 2004 for a follow-up hearing. By this time Hellerstein was losing his patience. The AP reported—

Suggesting the government was acting as if it had something to hide, a federal judge Wednesday gave Washington one month to release records related to the treatment of prisoners in Iraq."

In this order [pdf] Judge Hellerstein wrote,

As of today, eleven months later, ... no documents have been produced by defendant; no documents have been identified; no exemptions have been claimed; and no objections have been stated.
....

.... Merely raising national security concerns can not justify unlimited delay.

.... If the documents are more of an embarrassment than a secret, the public should know of our government's treatment of individuals captured and held abroad.... We are a nation that strives to value the dignity of all humanity.
....

I order that by October 15, 2004 defendants must produce or identify all responsive documents.

And so it has gone. The Pentagon has reluctantly released documents, some of which implicate higher authorities in the torture of Abu Ghraib detainees. For instance in March the ACLU got hold of a "memo signed by Lieutenant General Ricardo A. Sanchez authorizing 29 interrogation techniques, including 12 which far exceeded limits established by the Army's own Field Manual."

What the Pentagon has consistently refused to release are 4 videos and 87 photographs taken at Abu Ghraib. After it missed another court-ordered deadline, the Pentagon along with the State Department asked that "all current and future photographs and tapes of detainee abuse be permanently sealed and, in addition, the reasons given for the motion be heavily redacted." On Monday August 15, 2005 Judge Hellerstein ruled that the Pentagon's reasons must be made public.

Hearing of August 30

Yesterday's hearing was concerned specifically with the release of the Abu Ghraib videos and photographs. The judge eliminated one video and 13 photos because they "would have required redactions so great as to render them inconsequential."

Gen. Myers himself, chairman of the Joint Chiefs, had earlier submitted a declaration that

releasing the photos would aid al-Qaida recruitment, weaken the Afghan and Iraqi governments and incite riots against U.S. troops.

Now that the Pentagon has brought out the big guns, the judge is showing signs of intimidation—

"How can I ignore the expert opinion of General Myers, who is concerned with the safety of his troops?" the judge asked. "I can't substitute my opinion for the opinion of General Myers."

He said troops in Iraq "face danger every day and don't deserve to have that danger enlarged."
....

The judge said he recognized the pictures might be useful to the public as it answers questions about the prison scandal, including whether those in command knew about the abuse and how extensive it was.

Yet, he said, there was a "high prurient value" in the pictures. "A judge cannot look at these without thinking to himself how quickly they'd be put on the 6 o'clock or 11 o'clock news and how easily they could be subverted to create a false picture of this country," he said.

ACLU lawyer Amrit Singh argued that release of the pictures was necessary for the public to assess the scope of the abuse and whether it could have been carried out without the knowledge of military leaders.

The judge didn't set a date for his decision but indicated that it would be soon.

We can only hope the judge will surprise us all, but I am pessimistic.