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May 14, 2009


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Heath Dixon

Professor Stone, would you permit any line to be drawn around some information that the government should be permitted to withhold from disclosure? By the way you frame your argument, it appears that you wouldn't accept any justification for withholding information, regardless of the potential harm from releasing that information ("free-wheeling dissemination of ideas, images, and information causes all sorts of harm. ... Speech can offend, injure reputation, fan prejudice or passion, and ignite violence").

Surely that's not right. Would you have demanded that the government release - and encouraged the press to publish - plans for an invasion at Normandy in 1944, so that we could have had a robust public discussion on whether that was the best time and place for an offensive? And the details of Operation Fortitude, so we could have debated in public the merits of a deception campaign as part of the strategy? What about the identities of rape victims, juvenile defendants, and CIA operatives? Release *everything* to encourage public discourse?

If you really think there should be no secrets that a government can ever keep, then I don't have much else to say because I don't think there is any way for a government to prosecute wars or investigate crimes without some level of secrecy, and I think we should want governments to employ some level secrecy in their efforts to protect people.

If instead you agree that governments can legitimately keep some information secret, then your argument is just that these pictures should not be kept secret. If that's your position, then you should develop that line of your argument. Presumably the decision on whether to release a particular piece of information (photo or otherwise) should involve some weighing of the potential benefit against the potential harm. You say a lot about the potential benefit ("visual images matter a lot in public discourse"), but you keep it pretty conceptual, and then you dismiss the potential harm ("the same [relatively slight value] can be said about the harm from release of the photos") without really considering what it might be.

I disagree with your statements about the potential benefits and harms. These are pictures of activity that has already been investigated and acted on. So there is not any "discovery value" to releasing the pictures - we already know what happened, and it's already been investigated and acted on. The "reinforcing value" is pretty slim - seeing a picture of an abusive act may reinforce the idea that abusing people is bad by getting a visceral reaction out of the viewers, but it actually obscures the point that should be under discussion, by conflating unapproved random abuse of prisoners with approved uses of enhanced interrogation methods. You know that the release of these pictures is more about shaming the Bush administration than it is about shaping current policy. We already had the debate over treatment of prisoners, and we elected a new President who promised to put an end to those practices you deplore. So what's the added value to policy discussions of releasing these pictures now?

Meanwhile, you underestimate the potential harm. Those pictures can easily be used out of context to make it appear that such behavior is the rule, not the exception. Al Quaeda recruiters will not say "See these pictures? They came from an investigation that Americans did to police their own treatment of prisoners. The people who did these things were punished, and most of our compatriots are simply imprisoned and not abused in this manner." They will use those pictures in isolation and out of context - not to debate the methods of imprisoning enemy combatants, but to inflame potential recruits and to encourage similar - or worse - treatment of their victims.

As a general rule, to say that all information should be included in public debate without any regard for the potential costs and benefits is too simplistic and would permit a great deal of avoidable harm. In the particular case of these photographs, the additional benefit to discourse on US policies would be minor, while the potential harm of putting them into the public domain would be potentially tragic.

Uzair Kayani

It is difficult to know whether the release of these pictures is a national security risk, precisely because we cannot see them; this is the most annoying feature of state secrecy.

No one argues against "any regard" for costs and benefits. Rather, the problem is that the costs and benefits are unknown. A shot in the dark does not become an intelligent opinion merely because it is decked in economic verbiage.

And even an informed cost-benefit analysis of secrecy is suspect. Suppose that all the pictures were published in a book, or that a James Agee clone described them so well in prose that the pictures became unnecessary. If the government set about banning every book that failed its confidential cost-benefit test then free speech doctrine would be dead.

We do not know what is in the pictures; we do not know what was acted on and what was ignored. We are running on blind faith.

I would be surprised if a release increased core terrorist recruitment. I think those recruiters already have horrific pictures courtesy of freelance photographers and forgerers. It is possible, though, that moderate people will be further alienated and troop morale will suffer. But it is also possible that people will come to accept greater moral compromises in this war. I can only speculate.

We cannot tell the costs and benefits because our heads have ended up in the sand. We are ostrich economists.


A good rule of thumb on the release of information in war time is whether it would have been released or not during WWII. There is no way this embarrassing and tawdry information would be released during WWII. The idea that the public can simply afford not to know certain gory details in media res has been lost, and it's too bad, but it's enabled in part by the media who lacks any notion of loyalty to the nation as a whole, nor any sense of identification with the soldiers who may be killed. They are two entirely different demographics that share little in common.

Further, the left is quite willing to conceal all kinds of data, not least those data concerned with racial inequality. Their commitment is half-hearted and results-oriented. For instance, would the law school feel that it's useful to the affirmative action debate for the LSATs of minority students to be published? They'd certainly be one standard deviation below those of white and Asian admittees. So Stone's protest is not about "free and robust debate" so much as rigging the release of information in favor of certain policy outcomes.

Consider privacy policy generally. It's an exemption to the release of information and at times a sensible one. For example, I'd like to know who had an abortion. It would let me know who among us is a murderer. Can that be published in the interest of informed personal decisionmaking; and, at the very least, I'd like to know who in government is on psychoactive drugs or has had an STD or any number of other embarassing details? So why does privacy trump speech here and to what extent; after all, these are all issues of public consequence. The truth is, all of us make different exemptions for free speech to accomplish other superior policy outcomes, and the most fundamental exemption among them is the need for collective self-defense and victory in wartime, after such a decision has come to fruition.

Jonathan Meadows

Professor Stone,

Your quote on the U Chicago Law homepage puzzles me. Is it the case that the photos are the property of the US government? I assume it is. If I am correct, it seems clear that the government's withholding of the photos would not be in any way against free speech.

Someone has free speech when he or she is not unjustly prohibited from expressing his or her opinions. Free speech is not a mandate to disclose everything! Therefore, I would argue that the government's publicizing or not publicizing the photos has nothing to do with free speech; and the anti-American sentiments these photos are likely to produce take center stage.

Thank you!

Andrew Thornton

Dear Mr. Meadows,

I'm afraid you're slightly mistaken about the cases involving these photos. Under the Freedom of Information Act, there are only certain exemptions to FOIA requests. The ACLU has requested these photos, and the DOD under Bush and now Obama has refused to release them under 5 U.S.C. § 552(b)(7)(F), because they will supposedly inflame anti-American sentiment and lead to more battlefield and civilian deaths. (N.B.: Obama is continuing Bush's legal argument.) Both the federal District Court for the Southern District of New York and the Second Circuit Court of Appeals have ruled that this specific defense (i.e., generic increased threat to soldiers and civilians) is not an instance covered by exemption 7(F).

For Judge Hellerstein's District Court opinion in ACLU v. DOD, see http://www.aclu.org/torturefoia/legaldocuments/aOrder092905.pdf

For the 2nd Circuit opinion in ACLU v. DOD, see http://www.aclu.org/pdfs/safefree/acluvdod_photodecision.pdf

For the ACLU's list of briefs and other documents relating to this case, see http://www.aclu.org/torturefoia/legaldocuments/index.html

Andrew Thornton


The photos absolutely need to be released, period.
1. It is my hope that the more we learn of US-led atrocities and injustices, the more our brothers on the extreme right can be convinced that we are not perfect, and by extension each step taken in the name of national security is not perfect either.
2. If the release is coupled with a genuine, heartfelt apology and a resolve to not repeat such horrendous acts, there will be little to no increase in violence from the brethren of the victims of these war crimes. In fact, cooler heads (the majority of Muslims, of course) will know that America realized its mistake and deserves trust, respect and cooperation. Secrecy only breeds mistrust and disrespect.
3. As a people we need to know when our nation is responsible for war crimes. Never again should America have to hang its head in shame at home and abroad, because the few in power have humiliated the many who respect the Constitution in particular and human rights in general.

Robert Young

Prof. Stone, while I agree with your position against Pres. Obama's reversal, I feel that there are major points that were overlooked in your article. Both your argument and Mr. Dixon's rebuttal hinge on the relative positive and negative impacts that these images would have if and when they are released to the public; I maintain that both arguments are moot, based on Mr. Kayani's astute observation that the public cannot ever quantify the particular impact of releasing confidential state information precisely because the information is confidential. Instead of focusing on the pros and cons of releasing these particular images, it would be more constuctive to focus on the historical precedents in order to find a more pertinent argument.

I would draw your attention the particular example of Abu Ghraib, which you mentioned in your article. The notorious abuse which occurred at Abu Ghraib falls under the scope of the same investigation which produced other images, the images which are now under debate. The real issue at hand is whether the controversy of Abu Ghraib should be reproduced now to ensure reform of the treatment of prisoners by the US military.

Obviously, the US military feels it can carry out reforms without public scrutiny; however embarrassing this situation may be for the military in airing its dirty laundry, the fact remains that it is necessary for a democracy such as the US to encourage transparency when it does not threaten national security. It must be emphasize these images are now at least four years old; there is no time-sensitive material which threatens US soldiers abroad, nor do these images add fuel to the fire. Abu Ghraib by itself created enough fuel for anyone looking to defame the US military and its stance on torture. These images will not create new insurgents in Iraq or Afghanistan; what these images will do is to ensure that the public is aware of the atrocities committed in the past and that reforms will be made to ensure it does not happen again.

Dan R

Although it is easy to agree with Professor Stone's comment that Obama "is wrong in a big way," his reasoning is not something with which one can agree so easily. Good evidence of that is Mr. Meadows response: this issue is not really one of free speech. It seems that Professor Stone's obsession with Freedom of Speech has blinded him as to the best reasoning to follow for arriving at the conclusion that Obama is wrong in a big way.

Mr. Thornton, though seemingly trying to contradict Mr. Meadows, actually greatly strengthens Mr. Meadows point by citing the cases at hand. The cases indicate that the reasons that the government should hand over the photos is a statutory obligation (not a constitutional one) created under FOIA. That post therefore strengthens Mr. Meadows point that the issue really isn't one of free speech at all.

Other reasons, besides those excellent ones proposed by Reality Bites and Mr. Young, why "Obama is wrong in a big way" may include the argument that by not releasing these photos, the government has legitimated this type of wrongful activity.


It is important for America to uphold its principles of free speech; hpwever, not if they endanger millions of civilian Americans. That is what these pictures risk doing, they risk sparking a terrorists' revenge campaign. Also, with the proper captions and labels,Obama could use these photos to say that is not me, that is not America, and we are headed in another direction.

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