Captured on film

Chris MacAskill, founder of the photo-sharing website Smugmug.com, didn't think there was anything wrong with the photos of Navy SEALs someone had uploaded to Smugmug until he got a phone call from San Diego-based Associated Press reporter Seth Hettena. Hettena, researching a story on a group of SEALs being prosecuted for allegedly abusing Iraqi POWs, had come across the Smugmug photos and, surprised by what he saw, contacted both MacAskill and the woman-the wife of one of the SEALs—who'd posted the photos.

“We saw the photos before the AP reporter saw them,” MacAskill told CityBeat. “We didn't think anything was out of the ordinary. We have so many Iraq photos on the site, so many soldiers who've uploaded photos.”

Hettena, whose story ran in wide circulation on Dec. 3, later described the photos—which he said he found through a simple Google search—to KPBS “These Days” host Tom Fudge:

“[There was] a series of mug shots of what seemed to me to be prisoners. More than one had blood dripping from their heads and mouths. It was a strange thing to see on the Internet,” Hettena told Fudge. Other photos show grinning SEALs taking turns posing with a group of bound and hooded POWs in the back of a pickup truck. From insignias on the SEALs uniforms, Hettena recognized them as members of Coronado-based SEAL Team 5.

Hettena showed the photos to Navy officials, prompting an investigation. Navy spokesperson Jeff Bender said that in mid-December, an investigating officer who reviewed the photos recommended a full investigation, which is due to be completed by the middle of this month, he said.

In his story, Hettena points out that some of the photos, date stamped May 2003, could be the “earliest evidence” of POW abuse, predating Abu Ghraib. John Hutson, Dean of Pierce Law School in New Hampshire and former Navy judge advocate general, reviewed the photos for Hettena. Hutson told CityBeat that largely the photos depicted “juvenile silliness.”

“It was certainly nothing of the category we saw in Abu Ghraib,” he said.

Nevertheless, Hutson-an outspoken critic of George W. Bush's nominee for attorney general, Alberto Gonzalez, who's been criticized for saying the Geneva Conventions don't apply to U.S. treatment of Iraqi POWs-said he's dismayed by the lack of regard for the conventions apparent in the sorts of “trophy” photos turning up on soldiers' personal cameras. Under the Geneva Conventions, POWs “must at all times be treated humanely,” and must be protected from “insults and public curiosity.”

“You don't want to have to pick and choose when they're going to apply and when they're not going to apply,” Hutson said.

Last week, six of the SEALs pictured in the photos and two of their wives filed a civil lawsuit in San Diego Superior Court against Hettena and the AP, claiming the photos that ran with Hettena's story put the SEALs' lives in danger. In the photos, most of the POWs are wearing hoods and the faces of those who aren't had been blacked out digitally before being posted to the Smugmug site. In a written statement to the media, James Huston, the attorney for the plaintiffs, argued that his clients “showed more respect for the insurgents... that they were apprehending by obscuring their faces than the AP did for the Navy SEALs.”

Since the AP ran the photos, the images have been broadcast on the Arab TV network Al Jazeera and published in Arab newspapers.

The lawsuit also claims Hettena invaded the privacy of the woman who posted the photos.

First Amendment attorney Lawrence Walters said the invasion-of-privacy claim is problematic, since it was the wife, and not the AP, who first posted the photos on the Internet. “The AP is just republishing what was already publicly accessible,” Walters said in an e-mail to CityBeat. “Once the material was in the public domain for all to see, it would be irresponsible for the AP to turn its back on newsworthy material and pretend like it did not exist.

“The SEALs ‘sealed' their fate by acting inappropriately in the photographs,” he said.

In Hettena's Dec. 3 story, the woman said she thought the Smugmug account she'd set up was password-protected. McAskill said it wasn't, though he thinks that since the woman needed to log on to the site to upload photos, she may have thought that equaled password protection. McAskill said he thought it was clear to Smugmug users that the photo galleries they set up were open to public viewing-the website's users, he said, are largely folks who want to share their photos with the public. The site currently hosts six photos of Saddam Hussein's capture-some which have already been widely circulated in the press-posted there by request from the soldier who took them.

Bender said that Naval Special Warfare personnel are told prior to deployment that photos of prisoners are to be used only for intelligence gathering and administrative purposes only and the use of personal cameras is discouraged.