Letting Loose the Images of War

The battle for public access to government-held photographs of war

From the Summer 2004 issue of The News Media & The Law, page 7.

By Grant Penrod

Images of war have the potential to affect public perception and opinion in ways that words alone cannot. Few images from the U.S.-led wars in Iraq and Afghanistan say more than the photographs of abused detainees and of fallen American soldiers returning home in flag-draped coffins.

The Pentagon’s ban on media coverage of the coffins brought to Dover Air Force Base in Delaware looks to many journalists like an effort to control reporting that might bring a negative image to war.

“Images define wars,” wrote Jerry Lanson, chair of the department of journalism at Emerson College in Boston, in a March 25, 2003, column for the Christian Science Monitor. “[I]f war looks like a Fourth of July fireworks display over Baghdad, Americans are a lot more likely to feel an energizing, if uneasy, excitement at the ‘shock and awe’ of U.S. military might than if war looks, for example, like a frightened American captive.”

But the government’s own photographers have covered the arrival of the coffins. And when these images are created or held by the federal government, they become public records subject to the Freedom of Information Act. That act mandates that records can only be withheld when specific FOI Act exemptions apply.

The success in gaining public access to the photographs of coffins of U.S. soldiers killed in service, and the struggle for access to images of Iraqi prisoners being abused at the hands of American soldiers and private contractors, provide two useful illustrations in the ongoing battle to control public perception in the fog of war.

The Pentagon Coffin Coverage Ban

As the U.S. military prepared for the invasion of Iraq in March 2003, the Pentagon reiterated its policy banning media coverage of the return of soldiers’ coffins to U.S. air bases.

“There will be no arrival ceremonies for, or media coverage of, deceased military personnel returning to or departing from Ramstein air base or Dover base, to include interim stops,” the Department of Defense directive said. Ramstein, Germany, and Dover, Del., are the two main air bases through which U.S. soldiers’ remains return.

The policy prevents application of “The Dover Test,” a phrase coined in 1994 by former Sen. John Glenn (D-Ohio) who asked, “Will public opinion and will support in the Congress still be there when the bodybags or the coffins start coming back through Dover, Delaware?”

Yet Sen. John Warner (R-Va.), chairman of the Senate Armed Services Committee, told The Washington Post in June the ban was needed “to preserve the most important priority, and that’s the privacy of the families . . . and not open up this matter to greater scrutiny by the press.”

The policy is not new. Dover has restricted the media from photographing coffin arrivals since the Gulf War in 1991, while a military-wide policy dates back to November 2000. The ban even prevented the families of the killed soldiers from attending the arrivals. That policy was revised on May 26, 2004, but family members are still prohibited from taking photographs.

The ban has been applied beyond the media in other ways as well. Under government pressure, a U.S. military contract employee was fired by her employer for photographing coffins being loaded aboard a transport plane returning to the United States.

Tami Silicio, a civilian cargo worker employed by Maytag Aircraft, took digital photos of soldiers’ coffins as they were being prepared to leave Kuwait. She then gave the photos to The Seattle Times, her hometown newspaper.

Silicio, whose son died of a brain tumor, said she wanted to show the care and devotion with which the soldiers’ remains were handled. “It kind of helps me to know what these mothers are going through, and I try to watch over their children as they head home,” Silicio told the Times.

On April 21, 2004, Maytag fired Silicio and her husband, David Landry, after the newspaper published one of the images on its front page under the headline, “The somber task of honoring the fallen.” Neither the military personnel who were tending to the closed caskets nor the dead were identifiable in the photograph.

In an interview with The New York Times, Maytag President William Silva said the decision to fire Silicio and Landry was the company’s, but that the U.S. military had expressed “very specific concerns” about their actions.

The policy of protecting families’ privacy has not always been so strictly enforced. The Department of Defense posted photos to a military Web site showing the return of the remains of soldiers killed in the Korean and Vietnam wars to the U.S. in November 2000. Photos of coffins containing soldiers killed in Afghanistan were given to The Associated Press by the military in March 2003, and a publicly available May 2004 Army report titled “On Point: The United States Army in Operation Iraqi Freedom” conta ins a photo of soldiers preparing a coffin for return to the United States.

If it is the privacy interest of survivors in images of the unidentifiable dead that drives the policy, that is not a universally recognized interest even within the administration. For instance, in March 2004, President George W. Bush ran a campaign ad that included the image of a flag-covered corpse being carried from the wreckage of the World Trade Center.

On June 21, an amendment that would have lifted the photo ban was defeated in the U.S. Senate, 54-39. “A majority of the Senate are now working on behalf of the president to conceal from the American people the true costs of this war,” Sen. Frank R. Lautenberg (D-N.J.), the amendment’s sponsor, said in a statement after the vote.

When he heard of the photo ban, Web site “archivist” Russ Kick made an FOI Act request to the Air Force for “all photographs showing caskets (or other devices) containing the remains of U.S. military personnel at Dover AFB.”

“Not surprisingly, my request was completely rejected,” Kick said on his Web site, thememoryhole.org. “Not taking ‘no’ for an answer, I appealed on several grounds and — to my amazement — the ruling was reversed.”

On April 21, coincidentally the day Silicio was fired by Maytag, Kick received a compact disk containing 288 photos of soldiers’ coffins. The disk also included 73 photos of the coffins containing the seven astronauts killed in the 2003 Columbia space shuttle explosion. According to the letter sent with the photos, any personally identifying information had been removed. All of the images have since been published on thememoryhole.org.

Initially, military officials said the release to Kick was a mistake. But Will Kammer, chief of the FOIA Division of the Directorate for Freedom of Information and Security Review at the Department of Defense, said the photos released to Kick will continue to be released to FOI Act requesters. Future requests for other, albeit similar, photos will be handled on a case-by-case basis, he said.

It has long been accepted that an individual’s interest in personal privacy ends when the person dies. But a March 30 decision by the U.S. Supreme Court, National Archives and Record Administration v. Favish, threw that assumption into doubt by showing the Court’s willingness to protect surviving family members’ privacy interests in government documents.

The Favish case involved access to the death-scene photographs of former Clinton White House deputy counsel Vincent Foster, who committed suicide in a northern Virginia public park. Allan Favish, a California attorney, wanted the photos for what they might show about how Foster died, despite several government investigations that ruled the death a suicide. The government refused to release the photos, citing FOI Act exemption 7(c), which protects law enforcement records when their release “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

In a unanimous opinion written by Justice Anthony Kennedy, the court held that Foster’s family had a privacy interest in the photos, based on ancient traditions of family caring for the remains of the deceased. The court then ruled that because the Foster family’s privacy interest outweighed the public’s interest in disclosure, an unwarranted invasion of personal privacy could reasonably be expected.

The Favish decision does not mean, however, that photos of soldiers’ coffins may be exempted from disclosure under the FOI Act. There are two important distinctions noted by the court in Favish that compel a different result.

First, because they are not law enforcement records, FOI Act exemption 7(c) would not apply to coffin photos. Instead, exemption 6 — “files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy” — would have to be invoked. But as the high court noted in Favish, exemption 7(c) is specifically more protective than exemption 6. Exemption 7(c) protects records that “could” violate personal privacy, whereas exemption 6 requires proof that the files “would” violate personal privacy. Exemption 6 also requires that the invasion be “clearly unwarranted.”

Second, in weighing the Foster family’s privacy against the public interest in disclosure of the photos to determine if the invasion of privacy could be unwarranted, the Supreme Court noted that Favish had produced almost no evidence in support of his allegations of government misconduct. Numerous investigations had ruled Foster’s death a suicide. Without evidence that those investigations were flawed, it was unlikely that the release of the photos would serve a weighty public interest, the court held.

The interests balance differently in the case of coffin photos. Whereas the photos of Foster showed his body as it lay where he died, the coffin photos do not show a body at all. It is not even possible to identify whose remains are in any particular coffin, so the privacy interest at stake is significantly smaller.

Moreover, the public interest in disclosure of the coffin photos is arguably greater. The public has a strong interest in being able to evaluate the human costs of the wars in Iraq and Afghanistan, whereas the interest in access to the Foster photos was diminished by the conclusions of previous investigations.

Accessing Abu Ghraib

Access to the hundreds of photographs of abused prisoners taken by U.S. soldiers at Abu Ghraib prison in Iraq, including the dozen or so leaked to the media, create a more difficult and complex situation.

The government has resisted releasing the photos since word of their existence became public. “I’ve said today that there are a lot more photographs and videos that exist,” said Secretary of Defense Donald Rumsfeld in testimony before Congress on May 7. “If these are released to the public, obviously it’s going to make matters worse. That’s just a fact.”

According to Kammer, the Department of Defense has received numerous FOI Act requests for the photos, but had not completed processing any of the requests as of mid-June. Because the requests were still pending, the department had not yet determined which exemptions might apply. However, Kammer noted, they would not be withheld under exemption 6, the general privacy exemption.

Because the investigations into the abuse are still ongoing, Kammer speculated that exemption 7(c) or exemption 7(a), which protects law enforcement records if disclosure could reasonably be expected to interfere with enforcement proceedings, might apply. He also mentioned that other exemptions might apply to specific photographs. Exemption 1 would protect records classified in the interest of protecting national security. Exemption 2 might apply to protect records where disclosure might facilitate the circumvention of laws.

The abuse photos have been classified by the Pentagon, but such classification may not be legitimate. Executive Order 12958 prohibits classification to conceal violations of law.

Other concerns could be resolved by “sanitizing” the photos to remove or obfuscate portions protected by exemptions. “There does not seem to be any legal basis for categorically classifying or otherwise withholding all of them,” Steven Aftergood of the Federation of American Scientists Project on Government Secrecy wrote for Secrecy News, the project’s newsletter. Aftergood has argued for release of the photos in an FOI Act request for them.

A lawsuit is currently underway that could result in the release of the photos. In October 2003, months before the Abu Ghraib scandal brought the issue of prisoner abuse to the forefront, the American Civil Liberties Union filed FOI Act requests with the departments of Defense, State, Homeland Security, and Justice, and with the CIA seeking a broad array of records concerning the treatment of individuals apprehended after Sept. 11, 2001.

According to ACLU staff attorney Jameel Jaffer, the requests covered photos such as those later found to have been taken at Abu Ghraib.

The government agencies refused to expedite the ACLU’s FOI requests, saying that the information did not involve “questions about the government’s integrity, which affect public confidence” and that failure to produce the documents quickly would not “endanger the life or safety of any individual” — two standards under which the government might be compelled to respond more quickly to a request. As of mid-July, the only document released under the requests is a set of talking points used by State Departm ent officials when speaking to the media.

The ACLU filed suit in U.S. District Court in New York City on June 2, 2004, to require the government agencies to process the requests on an expedited basis.

“The government’s ongoing refusal to release these records is absolutely unacceptable,” Jaffer said, “particularly in light of the severity of abuses we know to have occurred.”