Of Bears and Penguins

Penny for your thoughts, a flag for your troubles

The vast majority of the bodies of American soldiers fly into Dover Air Force Base in Delaware. Under the auspices of protecting the privacy of the soldier’s families, the Bush administration has enforced the policy used in the first Gulf War, which prohibits journalists or other citizens from witnessing the homecoming of these now quiet Americans.

While no press cameras are there, photographers from the Department of Defense are clicking away for record keeping purposes.

The public saw these pictures after Russ Kick, of Arizona, requested their release under the Freedom of Information Act. Kick requested the photos and was denied on the grounds that releasing the photos would result in an invasion into the privacy of the families. Kick finally won on an appeal, and received 288 photos of U.S. dead returning to Dover.

Not all the pictures are of soldiers killed in Iraq. Some are from Afghanistan, others from U.S. military operations in other parts of the world. But it is a reasonable assumption that most of the bodies are coming from combat actions in Iraq.

In Griswold v Connecticut, 1965, the Supreme Court held that there was indeed a right to privacy within the constitution. Justice Douglas wrote in the court’s opinion, “Specific guarantees in the Bill of Rights have penumbras formed by emanations from those guarantees that give them life and substance.”

Thus, there are implied freedoms, without which the “specific guarantees,” would not stand.

Justice Douglas illustrated his point using the example of freedom of speech and freedom of the press. He wrote, “The right to freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read and freedom of inquiry, freedom of thought, and freedom to teach…Without these peripheral rights, the specific rights would be less secure.”

Justice Douglas efficiently affirms both a right to privacy and a right to know.

The Restatement (Second) of Torts, an academic collection of laws, states that a charge of invasion of privacy must meet two requirements in order to have legal weight. The matter at hand, in this case, pictures of caskets, must be both highly offensive to a reasonable individual and not involve a matter of public concern.

Even if the subject is deemed offensive, it may still be released if it is a public concern, that is, if it is newsworthy.

From Iraq we have seen pictures of the dead bodies of Uday and Qusay Hussein, towns a flame, and other violent pictures which might be called offensive.

But the pictures recently released show nothing of that sort. There is no blood, no anguished faces, no smoke or fire or terror.

Just an honor guard. Just a white hearse. Just the belly of a transport plane and rows of simple boxes covered with the stars and stripes.

So here are the soldiers who joined up to pay for college, or escape from their town, or to provide an income for their families. Here are those who went to a strange land to die.

And the American government refused to let you see them cloaked in red, white, and blue. Not because the pictures were gruesome or offending to delicate public sensibilities. But because, these pictures, more clearly than any chart or newspaper show the cost of the war.

The Vietnam War was called “the living room war,” because of the broadcasts that were shown on the evening news. The images returned from those jungles played a great role in turning the tide of opinion against that war.

Operation Iraqi Freedom is already an unpopular war. And it isn’t just about the dead Americans. It’s about the Japanese humanitarian workers taken hostage, the journalists who have died, 25 since 2003, according to the Committee to Protect Journalists, and the people of Iraq.

There are folks here in Columbia who stand on street corners holding signs asking people to “Honk for peace.” And several people sound their horns each time they pass, but whether the sound is heard in the hallways of the capitol has yet to be determined.

There have been numerous ceremonies here to read the names of the American dead. Still the appropriation of the names of the dead soldiers in an anti-war protest is arguably offensive. No one can say whether these soldiers would have added their voices to the vehement declarations against the war.

Either one of these actions may be thought offensive and ineffective in turning the tide of war.

But pictures of living soldiers helping their fallen compatriots to a final home?

This is not offensive. This is not invasive to their privacy. This is their last statement, neither affirming nor denying the justness of the war. These are their silent voices. And no one may say what these soldiers thought of the war except that they are dead because of their service.

They are no different from those silent Americans in Flander’s field, who, “short days ago…lived, felt dawn, saw sunset glow, loved and were loved…”

Regardless of one’s stance on the war there is no denying that there are costs to the action.

We hear that we are at war in order to protect our freedoms – this is a perennial justification for military action. Yet this most recent challenge to our freedom to view public records and the freedom of the press, came not at the gates of Baghdad, but from 1600 Pennsylvania Avenue.

And that ought to be offensive to any reasonable person.