Letting our worst fears trump transparency

Show us the pictures.

It's a classic confrontation between the military intelligence dictum of "need to know" vs. the democratic principle of "right to know."

Perhaps not everyone needs to know the route of the president's motorcade or that it passes the schoolbook depository building. But everyone should have a right to know how many jobs that stimulus package really created. The right to know belongs to those who govern, and in a democratic republic it is the voters who govern, not just those who temporarily fill the seats of delegated authority.

On Monday, the U.S. Supreme Court did what it had to do. It remanded to the 2nd U.S. Circuit Court of Appeals the ACLU's Freedom of Information Act lawsuit seeking access to certain photographs of foreign terrorism suspects in American custody. Since that lower court ruled for release of the photos, Congress and the president changed the law, allowing the secretary of defense to exempt such photos from the FOIA.

The question at hand is whether American taxpayers have the right or the need to see 21 color photos, which, according to government documents, show "soldiers pointing pistols or rifles at the heads of hooded and handcuffed detainees." Some describe the photos as evidence of abuse, but investigators found only three showed any abuse and only two soldiers were subsequently punished.

Americans, if ever given the chance, might view the photos and conclude they show how terrorists should be treated.

But the Department of Defense, the Congress and the president are afraid that release of the photos might, maybe, somehow, hypothetically prompt some unknown and unnamed Islamic fanatic to attempt to do harm to some unnamed and unknown American citizen or ally.

In her filing with the Supreme Court seeking to block the release of the photos, Solicitor General Elena Kagan quoted a senior military officer in Iraq as saying that revealing the photos could " 'pose a clear and grave risk of inciting violence and riots against American troops and coalition forces' and 'could reasonably be expected' to '(e)ndanger the lives and physical safety' of United States and Coalition military and civilian personnel and Iraqi and Afghan security forces and civilians."

U.S. District Judge Alvin Hellerstein had the answer to that quibble five years ago. His ruling was quoted extensively by the 2nd Circuit.

"The terrorists in Iraq and Afghanistan do not need pretexts for their barbarism; they have proven to be aggressive and pernicious in their choice of targets and tactics," Hellerstein wrote. "They have driven exploding trucks into groups of children at play and men seeking work; they have attacked doctors, lawyers, teachers, judges and legislators as easily as soldiers. Their pretexts for carrying out violence are patent hypocrisies, clearly recognized as such except by those who would blur the clarity of their own vision. With great respect to the concerns expressed by General Myers, my task is not to defer to our worst fears, but to interpret and apply the law, in this case, the Freedom of Information Act, which advances values important to our society, transparency and accountability in government."

Later in his ruling, Hellerstein eloquently expands on this theme: "Suppression of information is the surest way to cause its significance to grow and persist. Clarity and openness are the best antidotes, either to dispel criticism if not merited or, if merited, to correct such errors as may be found. The fight to extend freedom has never been easy, and we are once again challenged, in Iraq and Afghanistan, by terrorists who engage in violence to intimidate our will and to force us to retreat. Our struggle to prevail must be without sacrificing the transparency and accountability of government and military officials. ...

"In its most recent discussion of FOIA, the Supreme Court commented that 'FOIA is often explained as a means for citizens to know what "their Government is up to." The sentiment is far from a convenient formalism. It defines a structural necessity in a real democracy.' "

Because Congress changed the FOIA and President Obama, who promised the most transparent administration in history, signed it, those photos may never the revealed. But the principle remains.

Thankfully, John Hancock and the boys did not stop and contemplate before declaring independence that doing so might provoke King George into sending over some really peeved Hessians who might "pose a clear and grave risk of inciting violence and riots" that "could reasonably be expected" to "(e)ndanger the lives and physical safety" of Americans.

Thomas Mitchell is the editor of the Review-Journal and writes about the role of the press and the need for access to public records and meetings. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.