Torturing Democracy: The Freedom of Information Act and First Amendment Under Assault

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“For the government, delay is victory.” – Jameel Jaffer, deputy legal director, American Civil Liberties Union

The outlines of the story are simple. In the face of an ACLU lawsuit (ACLU vs. Department of Defense) that started as a routine Freedom of Information Act (FOIA) request in 2003, the US government has spent the past 12 years trying to prevent the release of photographic and documentary evidence of systemic US torture at multiple facilities across Afghanistan and Iraq, evidence that has never been publicly seen. In the process, the FOIA has been slowly eviscerated in ways that now threaten the First Amendment.

All three branches of the federal government at the highest level have acted to prevent full disclosure. As the ACLU lawsuit continued to win in the courts through the District and Appellate levels, in spite of repeated government challenges, Congress amended the FOIA in October, 2009, at President Obama’s request, by passing the Protected National Security Documents Act (PNSDA). This act allows the secretary of defense to withhold information that he or she deems dangerous to American lives. A few weeks later, in November, 2009, the Supreme Court vacated an appellate court ruling in favor of the ACLU because of the PNSDA. President Obama then signed an executive order in Dec. 2009, allowing the government to retroactively designate photos and other documentary evidence as classified information to shield it from FOIA requests. As a result, the multi-year ACLU lawsuit had to be re-litigated under the PNSDA.

The de facto refusal to release information that would allow informed public debate on the origins and operation of US torture programs stretches from the Department of Defense (DOD) to Congress, the Supreme Court, and through the administrations of presidents George W. Bush and Barack Obama. Because all three branches of the federal government have aligned against disclosure at various points, the separation of powers doctrine has begun to break down, giving the case broad implications that extend far beyond the issue of torture.

By logical extension, the 12-year US effort to withhold evidence has now become a threat to First Amendment guarantees that the government shall make no laws “… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” It flies in the face of the FOIA requirement for speedy disclosure within 20 days when possible, and it sets a legal precedent that favors unbridled government secrecy over constitutionally mandated checks and balances and democratic openness.

Even with the most generous allowances for safeguarding national security, the legal and judicial rationale underpinning the government’s arguments in this case is in direct opposition to the foundational democratic concept articulated by James Madison, the author of the First Amendment, that only an informed citizenry can ultimately hold the government accountable.

As Cornell University law professor Robert C. Dorf has written, the procedures followed in this case by Congress and the Supreme Court “… dispensed with a key protection of the Freedom of Information Act: judicial review of national security classifications. Without that procedural safeguard, we have insufficient assurance that national security considerations truly outweighed the public’s right to information.”

Dorf adds that “… while military authorities should be accorded substantial deference in matters of national security, the mere mention of the phrase ‘national security’ should not be conclusive for a court.”

An interview with Jameel Jaffer, deputy legal director of the ACLU, about the latest developments in the FOIA litigation follows the abbreviated timeline below. Links to take action are at the end of the timeline. A spreadsheet documenting 130 references to unreleased torture photos in government documents released to the ACLU as of April, 2014, can be downloaded here.


October 2003

The American Civil Liberties Union (ACLU) files a routine Freedom of Information Act (FOIA) request with the federal government seeking the release of photos and other documentary evidence of US torture of detainees at US prisons in Afghanistan and Iraq.

April, 2004

Graphic torture photos taken and leaked by US guards at the now infamous Abu Ghraib prison in Iraq become public after investigative reports by the New Yorker and “60 Minutes II.”

June, 2004

After months of stalling by the US government on their FOIA request, the ACLU, Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense and Veterans for Peace file a FOIA lawsuit seeking the release of photos and other documentary evidence of US torture from multiple government agencies, including the Department of Defense (DOD), CIA, FBI, Department of Justice and Department of State.

October, 2009

In the face of repeated ACLU victory in the courts, and after President Obama, under pressure from his top military officers, reversed his initial order to release the photos, Congress passed the Protected National Security Documents Act (PNSDA). This legislation amends the FOIA by allowing the secretary of defense to issue renewable three-year certifications that exempt photos from disclosure if he or she deems that their publication would endanger American lives. The passage of this legislation forced the ACLU to start over, going through nearly the entire litigation and appeals process again under the PNSDA.

November, 2009

The Supreme Court vacates the ruling of the US Court of Appeals for the Second Circuit in ACLU v. Department of Defense. The Second Circuit had upheld a District Court’s order to the Defense Department, directing it to release 21 photographs of abusive treatment of detainees in Afghanistan and Iraq. Some legal experts believe this ruling “…shows that there is little chance that the photos will ever see the light of day.”

December, 2009

President Obama signs executive order 13526 allowing the government to retroactively designate photos and other documentation as classified information, thus shielding it from release under the FOIA.

December, 2009

Attorney General Eric Holder closes the two remaining Justice Dept. torture cases without filing charges. The New York Times describes this action as “…eliminating the last possibility that any criminal charges will be brought as a result of the brutal interrogations carried out by the CIA.”

March, 2015

In the latest decision in favor of the ACLU on March 20, 2015, US District Court Judge Alvin Hellerstein again rejected the government’s argument that release of the torture photos would endanger US lives. He ordered the DOD to release the photos and gave them 60 days to comply or appeal. The appeals deadline is May 20, 2015. Commenting on the government’s tactics over the preceding years, Judge Hellerstein noted:

The government’s conduct reflected a sophisticated ability to obtain a very substantial delay, tending to defeat FOIA’s purpose of prompt disclosure.

The following are links to help you demand full disclosure on US torture:

ACLU Petition

White House

Attorney General

House of Representatives


Watch a video interview with Jameel Jaffer, ACLU:

Jameel Jaffer is a deputy legal director of the ACLU and director of its Center for Democracy, which houses the organization’s work on human rights, national security, free speech, privacy, and technology. He has litigated many cases relating to government surveillance, including challenges to the Patriot Act’s “national security letter” provision, the Bush administration’s warrantless wiretapping program, and the National Security Agency’s call-tracking program. He has also litigated cases relating to targeted killing and torture, including a landmark case under the Freedom of Information Act that resulted in the release of the Bush administration’s “torture memos” and hundreds of other documents relating to the Bush administration’s torture program. He is currently working on a book about individual privacy and official secrecy, a project he began as an Open Society Fellow in 2013. Before joining the staff of the ACLU, he clerked for Judge Amalya L. Kearse of the US Court of Appeals for the 2nd Circuit, and Rt. Hon. Beverley McLachlin, Chief Justice of Canada. He is a graduate of Williams College, Cambridge University, and Harvard Law School.