Will Osama bin Laden death photos ever appear?

Monday, May 9, 2011

WASHINGTON — In the court of public opinion, President Barack Obama’s decision not to release photographs of the dead Osama bin Laden seems to be playing well. A just-released NBC News poll found that nearly two-thirds of the public agrees with Obama that the images should not see the light of day.

But in federal court, where the issue will inevitably be fought out, the outlook is less certain. “I think in time the photos will have to be released, regardless of President Obama’s present inclinations,” says Dan Metcalfe, who for more than 25 years headed the Justice Department’s office of information and privacy, which sets policy on implementation of the Freedom of Information Act.

At least one group that has already filed an FOIA request for the photos is pledging to take the government to court if its request is denied.

“This was arguably the most important military action in a generation, and these photos are a historical record that the American people have a right to access,” said Tom Fitton, president of Judicial Watch, which requested the photographs from the Defense Department and the Central Intelligence Agency under FOIA less than a day after Obama announced bin Laden’s death. The Associated Press filed a similar request.

Metcalfe bases his prediction that the photos will eventually be released in part on court precedent. The courts have ruled on whether to release highly sensitive, gory photos under FOIA in the past, with mixed results and varying implications for the coming dispute over the bin Laden photos.

In National Archives and Records Administration v. Favish, the Supreme Court in 2004 unanimously ruled that 10 death-scene photographs of Clinton White House aide Vince Foster Jr. could be withheld from disclosure without violating FOIA. The Court ruling recognized the “cultural tradition” that a dead person’s family has control over his or her body. And it ruled that FOIA exemption 7(C) allowing government to shield material that would constitute “clearly unwarranted invasion of personal privacy” extended to the deceased person’s family. Though Foster’s death was declared a suicide, various skeptics who thought otherwise wanted the photos released.

But don’t expect the Obama administration to invoke Favish in support of its withholding the bin Laden photos, says Metcalfe, who now heads the Collaboration on Government Secrecy at American University. “I can’t see, even if the Obama administration is desperate, it taking an exceptional position on behalf of the privacy of Osama’s wives and children,” Metcalfe said.

In 2006, the 2nd U.S. Circuit Court of Appeals ruled on a case that may be more relevant to the Osama photo situation. The issue was whether to release a series of photos that demonstrated humiliating and abusive treatment of detainees by U.S military personnel at Abu Ghraib prison in Iraq. (The photos in question were in addition to the infamous photos that had already been leaked to the news media.)

The government invoked the privacy exemption, but that was dismissed because redactions of the photos could resolve privacy issues. But the government also invoked the 7(F) exemption, which allows the government to withhold law enforcement records that, if released, would reasonably be expected to endanger “any individual.” The government argued – as Obama has in the case of the bin Laden photos – that American armed forces would be jeopardized by the release because of the inflammatory nature of the images.

The appeals court rejected that argument, ruling that the government needed to demonstrate possible harm to specific individuals, rather than a diffuse and speculative threat to troops in general.

The government appealed that ruling to the Supreme Court, but before it acted, Congress enacted a law that created a specific exemption from FOIA disclosure for photos taken of detainees outside the United States. Without that law, the disputed Abu Ghraib photos might well have been released.

Metcalfe says the Obama administration is unlikely to invoke 7(F) because it pertains only to law enforcement records. “That can’t so readily be met here,” Metcalfe says. “It was a military mission, through and through. I think that knocks out 7(F).” Indeed, on CBS News’ “60 Minutes” program last night, Obama described the taking of bin Laden as “going into the sovereign territory of another country and landing helicopters and conducting a military operation.”

Several other gambits are possible, in Metcalfe’s view. One is the traditional path of classifying the photos, which would trigger FOIA’s exemption 1 – which protects “properly classified” material from disclosure. But Metcalfe thinks that it would be hard to justify classifying photos that show only bin Laden’s dead body – not sensitive material about the stealth helicopter used in the operation, for example. “It is hard to imagine how the Department of Defense or the Central Intelligence Agency could classify that one image, in and of itself. They might invoke it to buy time, but I think they ultimately would lose.” The CIA could also declare that the photos are “operational files,’ exempted from FOIA under a 1984 act of Congress.

Another path for the government to keep the photos from the public may have already been taken, says Metcalfe. “If they really thought this through in advance, then they will have created a process whereby everything would be shipped back to the inner White House.” Many White House entities including the National Security Council are beyond the reach of FOIA.

Whatever the niceties of the law, Fitton of Judicial Watch thinks the correct answer is obvious: The photos should be released. “This is basic information. I’m not interested in the schematics of the helicopter” used in the mission in Pakistan.

Fitton added that the issue of whether the news media should publish the photos if released is a “private-sector question.” But whether the government should release them in the first place, he says, is “a rule-of-law question.”

Tags: , ,