bin Laden Photo and FOIA - Obama Gets Best of Both Worlds, Says Law Prof

May 5, 2011 - PRLog -- Washington, DC: President Barack Obama's decision not to publicly release photographs of the corpse of Osama bin Laden may allow him to have his cake and eat it too, since it is likely that Freedom of Information Act [FOIA] demands already pending could force their release in the future according to a timetable largely controlled by the President, says a public interest law professor who has filed several successful FOIA actions but has no direct involvement with this new issue.

"A court might well be persuaded to order the release of the photos, as the Second Circuit U.S. Court of Appeals did with the regard to dozens of photos and even four video tapes showing detainee abuse at Abu Ghraib, images even more likely to inflame public opinion and even lead to violence," suggests John Banzhaf, a professor of public interest law at George Washington University Law School.

Under FOIA, government agencies must turn over documents and other materials in their possession unless they are exempt from such disclosure under one of nine narrow exceptions.  One exception, which relates to personal privacy, covers "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."  But personal privacy concerns have not prevented the release of photos of others shot dead in the same raid, and it might be politically very difficult for Obama to resist disclosure based upon his alleged concern about the personal privacy of a mass murderer.

Another exception applies to materials "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order."  But that executive order applies only if the "disclosure could reasonably be expected to cause identifiable or describable damage to the national security," and the materials must in fact and law be properly classified.

"It's unlikely that a picture showing what the President and other government officials have already described clearly and in some detail to the public could harm national security in the same sense as release of information related to military plans, foreign governments, or nuclear weapons.  Moreover, although intelligence information, including that related to "covert actions," may properly be classified, our government's involvement in the raid has been made public, and was always intended to be made public, and therefore could hardly be said to be covert," says Banzhaf.

Another way for Obama to refuse to honor a FOIA demand for the photos would be to argue that the only copies lie within the White House (which is not covered by FOIA) rather than at any government agency (which are covered by FOIA).  But, suggests Banzhaf, it's very hard to transmit digital images - including both stills and videos - from Pakistan to the White House without leaving some copies on computers, hard drives, or other storage media at the CIA, DoD, or other agencies - where they could be subject to mandatory disclosure under FOIA.

Several FOIA requests for the photos have already been filed by Judicial Watch, the Associated Press, and possibly other organizations.  Although such requests are supposed to be handled very expeditiously, the Obama administration could either respond quickly, or drag out the legal proceedings for months if not years, depending on their legal and political strategy.

By the time any documents are finally released under a court order, passions which might be aroused by their release are likely to had died down, and Osama's death will have been well established and accepted, in party because of the absence of any datable communications from him.  Thus, suggests Banzhaf, Obama can accomplish one of his stated objectives of providing virtually irrefutable proof of Osama's death, while at the same time seeming to be sensitive to concerns in the Arabic world.

"By declining to release the photos now, and requiring those seeking them to resort to FOIA, Obama can have his cake of seeming to be sensitive while also eating it by insuring that the photos can be released in response to FOIA demands, especially if Obama's Justice Department doesn't put up much of a legal battle."

PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network, http://wtn.net/
Founder, Action on Smoking and Health
(ASH) http://ash.org/
2000 H Street, NW, Suite S402
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/