Too Dangerous to Disclose? FOIA, Courtroom “Visual Theory,” and the Legal Battle Over Detainee Abuse Photographs

As law deepens its engagement with visual data, legal scholars have expressed concern that courts all too often uphold photographic evidence as objective representations of truth, rather than as necessarily partial portrayals of reality. To combat this naïve realism in legal institutions, some are incorporating insights from media studies in calling for a jurisprudence of the visual. Drawing on an ongoing lawsuit over the disclosure of detainee abuse photographs taken in Iraq and Afghanistan after September 11, I suggest this project expand its scope to examine litigants' interpretations of images in courtrooms, as well as concerns beyond photographic objectivity that arise in disclosure disputes, including images' unique privacy implications and national security risks. Though the stakes in this case are atypical, these specific concerns are to varying degrees more germane. Having all been raised before, they are likely to be heard again, if only by a single judge or jury.

Geneva Convention Compliance in Iraq and Afghanistan

US compliance with the Geneva Conventions in Iraq and Afghanistan appeared to vary with the particular subject matter and battle space. In military operations during the last decade, the United States assessed the legality of virtually every proposed target to avoid the intentional targeting of civilians. Legal specialists also, however, flagrantly overlooked Common Article 3’s minimum prescription that all captured individuals have the right to be treated humanely. This variation in compliance is explained by the shift in mission objectives: When the United States approached these conflicts as purely counterterror operations, the goal was to disrupt the enemy. However, under the population-centric counterinsurgency mission, noncompliance with the Geneva Conventions equated to mission failure. The shift from counterterrorism to counterinsurgency increased US sensitivity to civilian casualties and the operational consequences of detainee abuse. By adapting practice to comply with the Conventions, the people became the prize in the war on terror.