Torture Photos Want to be Free

     Shortly after FBI memoranda detailing post 9/11 detainee abuses were released in December 2004, pursuant to an ACLU Freedom of Information Act case, an ACLU official observed that the FBI had welcomed the organization's demand for documents: they implicated the Defense Department and exculpated FBI agents, revealing their strong opposition to torture and including claims that, in 2003, DOD interrogators at Guantanamo had impersonated special agents of the FBI. "If this detainee is ever released or his story made public, in any way, DOD interrogators will not be held accountable ... The FBI will be left holding the bag," an internal FBI email warned.
     Today, over 4 years later, after release of numerous documents, memos and photographs detailing the extensive, formally or informally authorized torture of detainees, the Obama Administration and the ACLU are still fighting over the release of additional photos; but I don't imagine that either the Administration or the ACLU expect the photos to remain secret for long.  If they're not released pursuant to judicial order, they'll be leaked (some are already online) perhaps out of outrage over the abuses they depict or as a result of bureaucratic infighting.

     Meanwhile, battling over the torture photos benefits both sides: Obama gets credit for defending the safety of the troops (and the dubious honor of the service branches and agencies involved in torturing people); the ACLU defends the sanctity of democracy and the people's right to know.  "We will keep the pressure on until (the photos) are released," the ACLU promises in a recent fundraising appeal, demonstrating the perverse financial realities of advocacy work.

     So while Barack Obama has dismayed civil libertarians by adapting or simply adopting Bush Administration national security policies (notably preventative detention and the state secrets doctrine), he has effectively addressed some of their concerns about declines in membership and donations that seemed likely to accompany his presidency and the expected end to an 8 year civil liberties emergency.  I'm not suggesting that civil liberties organizations, or other public interest groups, cynically hope for their own defeats; most civil libertarian lawyers and lobbyists I know are deeply devoted to securing rights and liberties; most take personally injustices visited upon others.  But advocacy groups naturally tend to thrive in opposition when they're seen bravely confronting urgent threats to their ideals.  They need to secure victories to prove their effectiveness, but hard-won or drawn out victories may be ideal financially; and they also need to suffer setbacks that illustrate the dangers of a world without them.  Complacency is the enemy of fundraising, and a luxury we seem unlikely to enjoy soon.

UPDATE:  In predicting the inevitable leak of disputed torture photos, I mistakenly noted that some were already online.  I was rely primarily on Scott Horton's report in, corrected here

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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