By now you may have heard that the Administration, faced with the prospect of having to defend its argument that it can confiscate a document using a grand jury subpoena, has instead decided to declassify the document they were trying to confiscate. Psych!!!
All of which raises the question--why were they trying to confiscate the document in the first place? It appears that they were trying to confiscate the document because the memo reveals that the Administration didn't prohibit soldiers from photographing detainees until after Abu Ghraib--indeed, until it became clear Congress was going to regulate detainee treatment.
The document provides guidelines on when and who can take pictures of "enemy prisoners of war (EPWs) and detainees in the Iraqi Theater of Operations." The document distinguishes between the pictures news media and Public Affairs Officers and soldiers are allowed to take. Here's the difference:
The news media and PAO are generally permitted, and to some extent even encouraged, to photograph EPWs and detainees from the point-of-capture throughout the entire detainment process. The photographs or other visual media must be limited such that the EPWs and detainees are not displayed in any manner that might be interpreted as holding them up to public curiosity...
[snip]
U.S. Soldiers are prohibited from such photography unless done in an official capacity.
No big deal, right? A fairly non-descript document. Well, that's how the ACLU describes it.
"As we have said all along, the issue was not the content of the document, but the government's unprecedented effort to suppress it," said ACLU Legal Director Steven R. Shapiro. "Now that the document has been declassified, it should be plain for all to see that it should never have been classified to begin with, and that the grand jury subpoena was overreaching and inappropriate."
Romero added: "We saw this from the start as a fight not over a document but over the principle that the government cannot and should not be allowed to intimidate and impede the work of human rights advocates like the ACLU who seek to expose government wrongdoing."
But as Romero notes in the ACLU press release on this--and as the ACLU noted in their court filings--the big scandal here is timing.
Romero noted that the memorandum was issued more than a year after the infamous Abu Ghraib photos came to light. The documents, he said, "raise the question of whether the guidelines were in place prior to the Abu Ghraib scandal and if not, why it took more than a year after the scandal to issue a policy."
In fact, the document provides a list of the relevant rules regarding photographing detainees, which seem to make it clear that the guidelines were not in place. Here's a chronology of BushCo Defense regulations related to photography (the document also lists earlier precedents, such as the Geneva Convention):
January 2002: Supplemental Public Affairs Guidance on Detainees
February 2003: Public Affairs Guidance on Embedding Media
March 2003: Public Affairs Guidance for Media Coverage of EPWs and Detainees
July 2, 2005: Public Affairs Guidance for High Value Individual Capture
August 1, 2005: 101st Airport Detention SOP
October 22, 2005: USCENTCOM Policy Prohibiting Photographing of Filming Detainees ... or Posting Visual Images Depicting Human Casualties
November 7, 2005: Detention Operations at Multinational Corps-Iraq
Or, to put it into context:
January 20, 2002: Bybee to Abu Gonzales memo specifying that common article 3 of the Geneva Convention does not apply to "an armed conflict between a nation-state and a transnational terrorist organization."
January 2002: Supplemental Public Affairs Guidance on Detainees affirms Geneva Convention wrt media photographs.
February 2003: Public Affairs Guidance on Embedding Media encourages media to photograph detainees, within certain guidelines.
March 2003: Public Affairs Guidance for Media Coverage of EPWs and Detainees allows photos (within guidelines) but prohibits photographs of custody operations or interviews.
March 2003: Iraq War starts.
April 2004: Sy Hersh breaks Abu Ghraib story.
July 2, 2005: Public Affairs Guidance for High Value Individual Capture permits photographing high value detainees (within guidelines).
January 2005: Abu Gonzales renounces the Bybee Memo, sort of.
July 21, 2005: Cheney attempts to persuade McCain and others not to restrict detention policies.
The Bush administration in recent days has been lobbying to
block legislation supported by Republican senators that would bar the
U.S. military from engaging in "cruel, inhuman or degrading treatment" of detainees, from hiding prisoners from the Red Cross, and from using interrogation methods not authorized by a new Army field manual.
August 1, 2005: 101st Airborne Division Detention SOP states that "detainees will not be photographed, humiliated or placed in positions with sexual overtones." Division General Order Number 1 (not clear if this is part of the SOP or not) prohibits soldiers taking photographs of detainees unless conducted pursuant to official duties, which include, intelligence gathering and official investigations." [my emphasis]
October 5, 2005: McCain proposes anti-torture amendment to military funding bill. The amendment prohibits degrading treatment of prisoners.
October 20, 2005: The week before the House and Senate meet to resolve the bill, Cheney makes a third attempt to convince McCain not to restrict the use of torture, which McCain again rejects.
October 22, 2005: USCENTCOM Policy Prohibiting Photographing of Filming Detainees ... or Posting Visual Images Depicting Human Casualties prohibits photographing or filming detainees as well as the possession, distribution, transfer or position ... of visual images depicting detainees." [my emphasis]
November 7, 2005: Detention Operations at Multinational Corps-Iraq prohibits coalition and Iraqi forces from photographing detainees.
December 13, 2005: The Army approves new Field Manual, which seems to push the limits intended by McCain's amendment.
December 19, 2005: The House passes the Conference Report.
December 20, 2005: The Administration writes the document clarifying its policy on photographing detainees.
December 21, 2005: The Senate passes the Conference Report.
December 30, 2005: President Bush signs the Appropriations Bill, issuing a signing statement "interpreting" the McCain amendment.
So here's my take on this. First, it is utterly clear. The Administration saw fit to regulate media photographs of detainees (though it encouraged such pictures, which is no doubt why we got so many pictures of Spider Hole Saddam). But it did not regulate soldier's photographs of detainees until such a point when it was clear Congress was going to regulate detainee treatment itself. Indeed, given the Bybee memo of January 2002 (note--this is not the Bybee memo, just a different one expanding our torture capabilities), which declares common article 3 inapplicable to the GWOT, it seems that the interpretation in effect during Abu Ghraib was that photos were okay. And note, too, the caveat that the 101st Airborne made (this document was written by a JAG in the 101st Airborne)--that photographs taken as part of interrogation appear to be allowed. And finally, note that they only regulate the multinational troops after Cheney loses his battle with McCain to limit his amendment just to US personnel and just to the military.
One reason the Administration tried to confiscate this memo, it appears, is that the memo reveals that the Administration didn't prohibit soldiers from photographing detainees until after Abu Ghraib--indeed, until it became clear Congress was going to regulate detainee treatment.
But there is one more reason they may have tried to confiscate this document. As the ACLU explains,
The ACLU recently appeared in federal court to challenge the government's appeal of an order directing the Defense Department to release 21 photographs depicting abuse of detainees by U.S. forces in Afghanistan and Iraq.
It's unclear when these photographs were taken, and I'm unsure whether this relates to the ACLU's ongoing lawsuit against Rummy and others for torturing some Afghani and Iraqi detainees, but it seems that this memo might help the ACLU get these images (by proving that photos were not regulated until after these 21 photos were taken), and therefore to prove its case against Rummy.