A federal judge could force the government to release thousands of additional photographs depicting the alleged harsh treatment of Iraqis at Abu Ghraib prison by U.S. military personnel.
Federal Judge Alvin Hellerstein in New York ruled Wednesday that the Defense Department had not provided evidence that disclosing the nearly 2,000 photos would endanger U.S. citizens and military personnel abroad.
The judge had previously accepted a Defense Department finding in 2009 that releasing the photos would endanger Americans, but he said that developments since then required him to revisit the decision.
"Three years is a long time in war, the news cycle, and the international debate over how to respond to terrorism," he wrote in his summary judgment.
The debate over releasing photos of Abu Ghraib has lasted nearly a decade. The American Civil Liberties Union sued to force greater disclosure after photos were leaked in 2004 showing the harsh and humiliating mistreatment of prisoners there. The photos sparked anger in the Muslim world and sharp criticism of the United States.
In 2008, the courts determined that the photos should be released with all faces redacted, and the Obama administration pledged to follow through on that order.
In 2009, though, Congress passed the Protected National Security Document Act before the administration could act. That law allowed photos relating to the treatment of military prisoners to be withheld if the Defense secretary certified that the disclosure would engager U.S. military personnel or citizens abroad.
The Defense Department made such a determination in 2009, which was upheld in the courts. In 2012, the Pentagon reissued the certification before it was set to expire.
Hellerstein noted that the U.S. has ended military operations there since the first certification in 2009.
"Given the passage of time, I have no basis for concluding either that the disclosure of photographs depicting the abuse or mistreatment of prisoners would affect United States military operations at this time, or that it would not," the judge wrote.
The Defense Department argues the law only requires the secretary to certify that the disclosure of the photos would harm U.S. citizens abroad. But the judge said the text is ambiguous and concluded the law allows for the court to determine if the secretary's decision is correct.
The judge also found that the Defense Department must evaluate each photo individually, saying that some photos appeared harmless.
"I have reviewed some of these photographs and I know that many of these photographs are relatively innocuous while others need more serious consideration," the judge wrote.
The judge did hint that the Pentagon would have a good chance of withholding some of the photos, noting the court gives "substantial deference" to the opinions of military officers.
The Defense Department will decide by Sept. 8 whether it will submit evidence to the court.