DETAINEE ABUSE PHOTOS MUST NOT BE RELEASED, AT LEAST NOT RIGHT NOW - WACKED-OUT MILITANTS DO NOT NEED ANOTHER REASON TO KILL

Abusive photos taken by United States' soldiers of detainees in Iraq and Afghanistan should not be released to the public, at least not right now. The release of 21 photos has nothing to do with privacy rights or government transparency; instead, it has everything to do with protecting American troops who are still in Afghanistan fighting a war against a bunch of lunatics. Only when every soldier is safely back on American soil should the photos be released.FILE - This 2003 file photo obtained by The Associated Press shows a detainee bent over with his hands on the bars of a prison cell at the Abu Ghraib prison in Baghdad, Iraq. Congress is set to give the Pentagon power to keep new pictures of detainee abuse from the public, a move intended to end a legal fight over the photographs' release that has reached the Supreme Court (AP Photo/file)

Understanding the Legal Battle

The American Civil Liberties Union filed a lawsuit against the government, arguing 21 photographs of abuse should be released to the public pursuant to the Freedom of Information Act. The government has unsuccessfully argued that the photos are exempt from FOIA's mandatory disclosure because they "could reasonably be expected to endanger the life or physical safety of any individual." 5 U.S.C. 552(b)(7)(F).

The lower courts have ruled in the ACLU's favor and the government has lost its appeals. The district court recognized the risk of violent acts as a result of the release of the photos but said that "our nation does not surrender to blackmail, and fear of blackmail is not a legally sufficient argument." Essentially, the judges agreed with the government -- that there is a risk to our soldiers -- but that their hands were tied by FOIA. The court of appeals also said the release of the photos could "incite violence" but that the government had to identify a specific individual who would be threatened under the exemption and since it could not, the photos are not exempt.

This is craziness! The courts acknowledge the risk of violence to our troops; but, since the risk is to the group of American soldiers as a whole, not to a named individual, the risk is not "specific" enough. Well, if we use that thinking, then why the hell are we in Afghanistan in the first place? We are not only there to identify "specific" people, like named Taliban and al Qaeda leaders; we are also there to hunt down any Taliban or al Qaeda militant.

Our mission in Afghanistan is broad based; therefore, the protections to our soldiers must be broad based as well. We are at war, folks. Why risk a militant capturing an American soldier or journalist and torturing him in retaliation to the release of the photos? Requiring the name a specific soldier who could be targeted is absolutely silly.

I believe in transparency and the public's right to access government documents. (For example, Chicago Police Superintendent Jody Weis tried to protect the names of CPD officers accused of abuse. I believe those names should be disclosed to the public. We have a right to know the names of Chicago's worst cops.) But, there is no need to publish photos to the world that could increase the threat of violence, no matter how small, against our fathers and sons who are fighting in Afghanistan, who are putting their lives on the line in a region filled with crazy-ass insurgents. Keep in mind, the soldiers accused of the abuse were tried and convicted. It is not like the Army did not bring the abusive soldiers to justice.

Legal Battle May Be Killed by Defense Secretary

The final decision, to be made by the Supreme Court, may come as early as Tuesday; however, the White House has asked the justices to withhold their ruling until House and Senate vote on whether absolute power to decide on the photos' release should be given to the defense secretary. Basically, if they vote yes, the ACLU's legal victories will be stripped from them and we can expect Robert Gates to hold those photos closely to his chest. (That's another legal discussion for another day!) AP article here.

If Secretary Gates is granted the power to protect the photos, I hope that he will authorize their release once the war is over. For many reasons, the public has a right to see those images, just not right now. The public does not have a pressing, immediate interest in viewing those photos.

Obama Flips the Script Yet Again

Obama is becoming a master at switching his positions. In the beginning days of his presidency, Obama said he was not opposed to the photos being released and he wanted government transparency. But, in May, Obama said he was now opposed to the release of the photos.  After talking with lawyers, he decided "the release of these photos, particularly at this time, would only serve the purpose of inflaming the theaters of war, jeopardizing US forces, and making our job more difficult in places like Iraq and Afghanistan." Interesting -- now he is in agreement with the Bush administration's refusal to release the photos. 

Read more at: http://www.huffingtonpost.com/2009/05/13/obama-broke-his-word-on-d_n_203065.html

Here are a few things to keep in mind:

* The "Darby photographs" are the property of the Department of Defense and Department of the Army.

* To support its position, the government submitted a declaration of General Richard Myers, (then the Chairman of the Joint Chiefs of Staff and the Nation's highest ranking military officer.) that stated disclosing the Darby photographs "could reasonably be expected" to "endanger the lives and physical safety" of those individuals was based on his extensive military experience, assessments by his combat commanders, intelligence reports from subject-matter experts, the violent response to the release of photographs of detainees in British custody, and the widespread and deadly rioting following the publication of a false story alleging the desecration of detainees' copies of the Koran at Guantanamo Bay, Cuba. See Government's Petition for Writ of Certiorari.

* The government already gave the ACLU written descriptions of the photos, which the ACLU has posted on its website. See here.

* This blog is dedicated to my dear childhood friend, Marcia Hofmann, who is a staff attorney for the Electronic Frontier Foundation. Marcia co-authored the amicus briefs with the ACLU in the above case and it is her work that inspired me to really think about the case. Thank you, Marcia. You are such a great friend, scholar and resource.

www.xpunged.com and www.tamaraholder.com

New Texas Law: Old DNA on Cases NOT Prosecuted Can Be Used Against Person

On Tuesday, a new Texas law brings "due process" into a new debate: DNA that was collected from sex crimes that were never prosecuted will be placed into a database that is accessible to law enforcement, parole boards and prosecutors. Wall Street Journal article here.

At first glance, this makes sense but there are no boundaries.  This isn't about getting sex offenders off of the streets. Old DNA can be used by law enforcement and prosecutors for any reason whatsoever to build a case against a suspect on any kind of case - not just sex cases.

Let's say John Doe's DNA was found on a woman in 1988 that now matches John Doe. (At the time, the samples were preserved but not tested until after the statute of limitations on prosecution had passed.) Now, over 20 years later, John is arrested for a non-violent crime, possession of a controlled substance. Immediately upon arrest, law enforcement has access to his DNA "match" on a 20 year old case. And let's say there have been a few unsolved rapes in the area with no positive ID on the rape kits. But let's say John Doe is a 5'10" black man with braids and dark skin. And the suspect in the recent cases also matches that description.

Rest assured, John Doe will be charged with the recent rapes.  The police and prosecutors can and will use the old DNA information as a reason to charge John. The prosecutor will tell the bond court judge in aggravation that John's DNA matched the DNA of a victim from 20 years ago. And how about at trial? Will the judge allow the prosecutors to tell the jury about the 20 year old case even though John was never charged?

I am all for getting sexual predators off of the streets. I don't want a rapist who wasn't caught to jump me in Lincoln Park! But, this new law is against the interest of justice. DNA is just one link to a puzzle. It is not the end-all-be-all. Just because a man's DNA is found on a woman reporting a rape, that does not mean he raped her.  Maybe it was consensual but she got mad at him and reported him to the police? Maybe he had consensual sex with her and then she was raped by another man? Whatever the reason, every person is entitled to their day in court. 

I recently had a client who was accused of sexual assault. The alleged victim was a girl who said my client raped her.  His blood was found on her bedroom window. His DNA was on her sheets. Looks like a slam-dunk case for the prosecution, right? Wrong. He had apparently been having sex with the girl for months. One night, when her father came home, he jumped out the window. Several months later, her father found out about their relationship and so she made the rape allegation to protect herself. 

This law has the opportunity to grow legs. Does that mean fingerprints found at a murder scene can soon be entered into a database? This database can easily expand beyond DNA in old rape cases. 

And what about our privacy rights? Now, a person's DNA will be in a database without their knowledge or ability to challenge its validity. In Illinois, the state cannot obtain one's DNA unless he/she has been convicted of a felony offense.

DNA does not mean "Do Not Argue (because you are guilty)." Every person is entitled to confront their accuser. Ever person is entitled to due process. This law takes away those rights. 

www.xpunged.com and www.tamaraholder.com