30 Sep Private Abuse and Public Curiosity
Thou shalt not incite public curiosity. It is perhaps the most curious of international obligations. But there it is, expressly required in the Geneva Conventions: prisoners of war “shall be protected … against insults and public curiosity.” How does one abide by this commitment? That, in essence, was the question in the recent Second Circuit decision of ACLU v. Department of Defense.
The ACLU filed a FOIA request for release of 21 photographs depicting abusive treatment of detainees by United States soldiers in Iraq and Afghanistan. While much of the decision focuses on the privacy exception to FOIA, the final section of the opinion addresses whether the FOIA privacy provisions should be read in light of the Geneva Conventions. The United States relied on Charming Betsy to argue that FOIA should be read consistent with the United States’ obligation to comply with the public curiosity requirements of the Geneva Conventions. The United States argued that even if the photographs were redacted to eliminate identifiable information, they nonetheless are so humiliating that the dissemination of such photos opens the detainees to public curiosity.
The Court disagreed. It noted that the United States position was not always thus, and that during World War II the United States championed the use and dissemination of German and Japanese concentration camp prisoners to hold perpetrators accountable. The Court also concluded that release of the photos will further the purposes of the Geneva Conventions by deterring future abuse of prisoners. “To the extent the public may be ‘curious’ about the Army photos, it is not in a way that the text of the Convention prohibits… Heightened public awareness of events depicted in the Army photos … would serve to vindicate the purposes of the Geneva Conventions without endangering the lives or honor of detainees whose identities are protected.”
I think the decision raises troubling questions. First, in typical fashion, the Court does a woefully inadequate job of interpreting the ambiguous phrase “public curiosity”. Yet again a federal court seems completely unaware of Article 31 and 32 of the Vienna Convention on the Law of Treaties, which requires a treaty provision to be read based on its plain meaning within its context and in light of its object and purpose. “Public curiosity” is the kind of phrase that cries out for careful treaty interpretation using Vienna Convention analysis. My sense of the phrase is that it is not so much focused on the privacy interests of the detainees as it is protecting prisoners from becoming objects of public humiliation or a tool of war propaganda.
Second, the case presents an interesting question regarding the Charming Betsy doctrine. If the purpose of a statute is to achieve one objective and the treaty’s purpose is something clearly distinct, how does one read the statute in light of the international obligation? The privacy interest can be achieved by redaction of the photos, but even redacted photos can be used to parade prisoners to further war propaganda. Does anyone have any doubt that a hooded prisoner held by a terrorist group who is about to be beheaded is in furtherance of a war effort against the United States, notwithstanding that his identifiable features are not available to the camera? Such prisoners’ privacy interests may not be violated, but he nonetheless has become the object of insult and public curiosity. Does the Charming Betsy require a statute to be read consistent with an international law that has a different purpose?
Finally, I am curious about the Court’s conclusion that the motive behind the dissemination of the photos is of paramount importance. The treaty obligation requires that prisoners be protected against violence, insult and public curiosity. Is it the result, or the motive that matters? If the resulting conduct leads to violence, insult or public humiliation, does the mens rea matter?
I am not suggesting that the Court reached the wrong conclusion. I just think the manner in which it reached the result is, well, curious.
I don’t know about the court’s analysis, but what’s most striking to me is that DOJ argued that release of the photos would violate the Geneva protections for POWs and civilians. Of course, at least as to the Afghanistan photos, the Administration’s view has been that the detainees are not Geneva-protected POWs or protected civilians. Yet in this case, they are falling back on the detainees’ Geneva rights. How do they reconcile these two positions? Has anyone tried to use DOJ’s apparent concession in the CTA2 case to argue in other cases that Geneva applies?
Following up on Prof Lederman’s argument, it occurred to me that the government might respond to the effect of ‘we are not conceding the GCs wholesale applicability but are compelled after Hamdan to argue this discrete position.’ However, the Hamdan decision of course required only common Article 3 protections, not the entire GCs, so the government could not easily make this claim. (Protection from ‘public curiosity’ is required by GC III Article 13 for POWs, and by GC IV Article 27 for civilians. Although common Article 3 does not mention ‘public curiosity’, it does prohibit ‘[o]utrages upon personal dignity, in particular, humiliating and degrading treatment.’) The government here took the position that broad GC protections apply to these detainees. Many of the original 21 photographs depicted nonconsensual sexual abuse, the publication of which could arguably be yet another outrage upon personal dignity. The court required the photos to be redacted to obscure all identifying characteristics. Is that adequate in this case? Prof. Alford is quite right in calling for careful analysis of the meaning of the treaty’s text, in the right manner. Instead the court is conclusory: this is not the type of curiosity intended by the Conventions. But on… Read more »