Last year I was working a Sunday shift at my job in the San Diego bureau of The Associated Press (A.P.) when I typed three words into Google that led me to photos posted on the Internet of Navy Seals and their Iraqi prisoners. The resulting story would trigger a criminal investigation by the military as well as a lawsuit filed against me by a group of six Navy Seals. Recently a judge threw out the case, allowing me to tell the back story that began on that quiet afternoon.
I had been covering the mysterious death of Manadel al-Jamadi, an Iraqi terror suspect who met a gruesome end in CIA custody in 2003 in Abu Ghraib prison in Iraq. Photos of al-Jamadi’s bruised, ice-packed corpse emerged in the scandal at the notorious prison. Hours before he died, al-Jamadi was captured from his home by Navy Seals on a joint CIA-special operations mission. Last year, a group of Seals were prosecuted in military court in San Diego for abusing al-Jamadi. The secrecy surrounding the case was extreme; defendants weren’t named in most court proceedings.
That Sunday, I was chatting with a source who had a copy of al-Jamadi’s autopsy. Buried in the report was a reference to Camp Jenny Pozzi, a Seal base in Iraq. So I did what I imagine every journalist would do these days: I typed the name of the base into Google, the popular Internet search engine. Of the few Web sites that popped up, one stood out—a commercial photo-sharing Web site called smugmug.com. Amazingly, what I saw on this site were photographs of Navy Seal Team Five in Iraq, hundreds of images of the super-secret Seals smiling for the camera, stretching in their bunks, playing volleyball, drinking beer, and eating cake on the Fourth of July.
More ominously, however, there were about 40 photographs involving prisoners. In an eerie echo of the Abu Ghraib images, grinning Navy Seals took turns sitting on top of hooded and handcuffed detainees in the back of a pickup truck. Other of these images appeared to be taken in the immediate aftermath of raids on civilian homes, and they offered an unusual glimpse into commando operations in Iraq. In one, an Iraqi was on his back with a boot on his chest. Another image showed a man with an automatic weapon pointed at his head and a gloved thumb jabbed into his throat. Blood dripped from some of the prisoners and someone had blacked out faces of many, but not all, of them.
Once I saw these photographs, I couldn’t ignore them. There was a story here. Some of them were dated May 2003, which could make them among the earliest evidence of prisoner abuse in Iraq. The challenge for me was to get the story off the Internet and into print.
Publishing a Story About Prisoner Abuse
I let my editors know what I’d found and e-mailed links to the Web site so they could view the images themselves. Guidance I received from editors at A.P. headquarters in New York was to focus on whether the photos showed anything that might be illegal. With that in mind, Justin Pritchard, A.P.’s news editor in Los Angeles, and I mapped out a reporting plan, and I provided him with detailed updates throughout the process.
At the outset, we wanted to make sure the images weren’t fakes. I tracked down the home address of where the wife of a Seal whose name appeared on the site lived. One day, I dropped by her San Diego apartment and, since no one was home, I left a note asking someone to call me. The Seal’s wife called a short while later and told me that she had posted all the photos her husband had brought back from Iraq. She was also upset that I had looked at her personal family photos. When I pointed out that there were photos of prisoners, she said that those were “CIA photos” and went on to imply that her husband and other Seals were rounding up people wanted by the spy agency.
It was becoming clearer to me that there was a story that needed to be told. Our next step was to bring copies of photographs to Naval Special Warfare Command, the Seals’ headquarters in Coronado, outside San Diego. To show how easily the site could be accessed, I had ordered copies of photos mailed to me through smugmug.com for 29 cents each, and I shared these copies with the Seals’ public affairs staff. Soon the Seals opened a criminal investigation, and we heard that the photos were being circulated at the Pentagon.
The A.P.’s attorneys reviewed the photos, and on December 3, 2004 we decided to move the story, along with 15 photos just as we found them on the Internet.
The story was explosive. Hundreds of media outlets around the country ran the story, including The New York Times, Los Angeles Times, The Washington Post, and CNN. Media organizations in the Middle East reacted with predictable outrage. Cuba put a billboard with the photos outside Guantanamo Bay—a point the Seals would later use against us. General Mark Kimmitt, a former military spokesman in Iraq, told the pan-Arab television network the next day that the photos showed the acts of an isolated few.
A few days after the story ran, Naval Special Warfare Command said some of the photos were taken for legitimate intelligence-gathering purposes and showed commandos using approved procedures. For instance, in a photo of a detainee with a weapon pointed at his head, the Seals said the weapon wasn’t being used to terrorize him. Rather, a flashlight attached to the top of the weapon was being used to illuminate his face. But the Seals offered no explanation for other photos, including the grinning Seals photographed sitting on top of prisoners. At a minimum, Navy policy forbids such unofficial detainee photos.
Later our reporting revealed that Army soldiers in Iraq were worried about the way members of Seal Team Five were treating prisoners. According to Army documents in 2003, an interrogator said some of the prisoners brought in by the Seals “appeared to be very severely beaten.” A former soldier who worked at a detainee holding facility in 2003 told me it was common knowledge Seals were beating prisoners, and it became something of a joke in his unit’s morning briefings.
The Lawsuit Against Our Reporting
One day in December, someone knocked at the door of my home and handed my wife a letter. A lawyer representing the Seal wife who posted the photos claimed everything I’d written about our conversation was untrue. The next day, six Navy Seals and two of their wives sued the A.P. and me. (Two Seals and one wife later dropped out of the case.)
The lawsuit, filed in San Diego Superior Court and then moved to federal court, accused us, among other things, of invasion of privacy, publication of private facts, and intentional infliction of emotional distress. The Seals claimed we deliberately endangered their lives and distorted the truth “in a quest to break the latest unsupported story against our troops in Iraq.”
The attorney for the Seals (who never revealed their names) was James Huston. His name might be familiar to fans of military techno-thrillers. He’s written several mass-market novels featuring Navy Seal Kent “Rat” Rathman, an undercover CIA operative who hunts terrorists. Huston, a former Navy aviator, still had his old pilot’s swagger. In court papers, he insinuated that I hacked into the smugmug.com Web site. He said his clients feared for their lives. He also suggested that I committed a felony straight out of the Valerie Plame case by publishing identifiable photos of “covert operatives.” This charge ignored the fact that, unlike CIA operatives, Seals’ identities are not classified.
The lawsuit generated a second wave of coverage. I’d be lying if I said I didn’t lose any sleep over it. I think my mother, too, preferred to see my name in bold at the top of a story, not in the middle of one in her beloved New York Times. The A.P. rushed to my defense and never wavered. “We stand together,” A.P.’s Assistant General Counsel David Tomlin told me. Attorneys who the A.P. hired to represent me—David Schulz in New York and Robert Steiner in San Diego—parried the Seals’ claims with the strong protections afforded to journalists by California law. The state’s “anti-SLAPP” law (SLAPP stands for Strategic Lawsuits Against Public Participation) allows defendants to obtain quick dismissal of claims based on speech about matters of public importance unless the plaintiffs can show they are likely to win. Defendants can also demand reimbursement of their legal fees.
On July 12, 2005, U.S. District Judge Jeffrey T. Miller decided the Seals could not win and dismissed the case. “The Associated Press merely distributed a truthful story, with photos that depict a topic of great public interest,” Miller wrote. The judge said he had reviewed the photos and found they showed possible abuse: “Plaintiffs voluntarily assumed a position of public notoriety when they photographed themselves engaged in actions that seemed to suggest possible mistreatment of captive Iraqis and then allowed Jane Doe to post the photos on the Internet.” In August, the Seals agreed not to appeal the dismissal, and the A.P. and I agreed not to seek reimbursement of our legal expenses.
In the end, however, the larger issues raised by our initial story got lost and distorted. Questions about who the commandos were capturing, why they needed to use so much force, and whether they faced any consequences after the photos were revealed have never been fully answered and remain shrouded in government secrecy.
Earlier this year, the Seals told us the criminal investigation into how the photos were made and posted on the Internet was closed. A Freedom of Information Act request I filed in August asked for the results of such an investigation. As this story goes to press, my request is still being reviewed.
Seth Hettena is a military writer and supervisory correspondent for The Associated Press in San Diego, California.