The 'Loose Lips Sink Ships' Case
Written by John Armor
Saturday, October 01, 2005

(The information for this comment comes initially from an Associated Press story run on Yahoo News on 29 September, 2005.)

U.S. District Judge Alvin K. Hellerstein in New York has just ruled in a case brought by the ACLU that 87 photographs and four videotapes concerning Abu Ghraib prison in Iraq must be released by the federal government. In his 50-page decision, the judge asserted that the terrorists in Iraq and Afghanistan ''do not need pretexts for their barbarism.''

He added in his opinion that, "Our nation does not surrender to blackmail, and fear of blackmail is not a legally sufficient argument to prevent us from performing a statutory command.... Indeed, the freedoms that we champion are as important to our success in Iraq and Afghanistan as the guns and missiles with which our troops are armed.”

(Judge Hellerstein was appointed by President Clinton, in 1998.)

In accord with usual practice, the order of this judge to release these materials will probably be stayed until his decision can be reviewed on appeal. Though the government has not announced an appeal, that seems nearly certain.

It is hard to overstate how bad this decision is. It is hard to say where the judge’s idea that the issue in this case concerned “blackmail.” It does not. It concerns the impending murders of both foreigners and Americans as a direct result of his decision, unless it is reversed on appeal.

Consider that after the initial photographs of abuses at Abu Ghraib were published, there were religiously-inspired riots in a number of Islamic nations. Also, there were increased attacks on Americans and their allies mostly in Iraq. Dozens of people died. Consider the recent false story in Newsweek which engendered riots mostly in Pakistan, in which dozens were killed. Newsweek withdrew its story about “copies of the Koran being flushed down toilets at the Guantanamo prison” within two days.

Newsweek could have tested the story by attempting to flush a copy of its own magazine (much smaller than the Koran) down one of its own toilets. But it did not. And its retraction was not able to resurrect the dead.

Or, consider the slogan on posters during World War II, “Loose lips sink ships.” Early in the war, German submarines were operating right off the East Coast. In the major ports of Boston, New York, Baltimore, and Norfolk, there were easily thousands of people who worked on the docks and who knew when the liberty ships (and others) were sailing for Britain as the lifeline on which that nation depended. There were German spies in the United States who would have transmitted the sailing times of ships if they were published in the newspapers--and publication of sailing times and names of ships was routine in peacetime in all of those ports.

The equation was clear. If the German submarines got the information on what ships were sailing when, more of the merchant ships would have been sunk in the North Atlantic with all hands lost, and the vital cargoes denied to the beleaguered citizens of Britain.

All this seems overwhelmingly obvious. Why recite it here? Because this judge is apparently ignorant of such obvious facts. He is willing to condemn perhaps hundreds of foreigners and dozens of Americans to die because he has no clue that the First Amendment does not require the forced publication of deadly information in time of war.

The ACLU, of course, hopes that many more deaths will result as a result of the release of these graphic images. The burned and broken bodies of foreigners in their nations will help to turn the governments of those nations against the United Sttes. And the deaths of more Americans will help turn Americans against the policies set by their administration and Congress.

This is not, as the ACLU posits the case, a need for public knowledge in the United States. Americans are well aware of the abuses at Abu Ghraib. The last of the American soldiers charged with these abuses is on trial right now. Most of those previously charged with those abuses have either been convicted at trial, or have pleaded guilty. And the commanding general of that prison has been relieved of her duties. All this has been well, and properly, reported in the American press.

No legitimate First Amendment purpose will be served by the release of more Abu Ghraib images. If the terrible decision of this one judge is not reversed on appeal, President Bush should issue a direct order, as commander in chief at a time of declared war, that this information not be released. The Supreme Court is highly unlikely, based on its few decisions concerning the wartime powers of the president, to strike down such an order today.

One way or the other, this decision by this judge will not stand. The sad part is how far we have descended since World War II. All the newspapers then understood that information which would get people killed should not be published. The editors of the newspapers in the port cities certainly had the ability to find out what ships were sailing, and when. They voluntarily chose not to print that information.

Today we have some newspapers, magazines, television stations, and networks which will immediately print or publish this information, regardless of the fact that people will be murdered as a result. Today, we have the ACLU prepared to try to force this information into the public domain. And today, we have a federal judge who is willing to play a critical role in getting this information published, and causing these people to be killed.

Today, unfortunately, we need a new wartime poster. It should show a picture of Judge Hellerstein, with the following slogan:

“Loose Judges Kill Americans”

About the Writer: John Armor is a First Amendment lawyer and writer who lives in the Blue Ridge Mountains of North Carolina. John receives e-mail at John_Armor@aya.yale.edu.

Ellie

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