Everybody has an opinion on whether or not the Obama administration should release kill shots of Osama bin Laden. It’s a tough question. And there are intelligent ways to disagree with the president’s opinion (see Jon Stewart’s impassioned plea). Or you could just
call the president a pussy accuse the president of “pussyfooting” on Twitter, because that shows real leadership.
Those are fine responses for former half-term governors and pundits in the public eye. But lawyers are going about the picture issue in a much more interesting manner. Before asking if Obama “should” release the Osama photos, lawyers are wondering “does he have to,” if served with a FOIA request.
It depends, but the question itself is a helpful reminder that we are a nation of laws…
The National Law Journal has an excellent piece about whether the Obama administration can be forced to release the pictures through a Freedom of Information Act request:
Lawyers who specialize in FOIA work say that while such requests will almost certainly be denied initially, there’s a chance that the plaintiffs could prevail in court.
“Theoretically, they could win,” said Scott Hodes, who from 1998 to 2002 was the acting unit chief of the Federal Bureau of Investigation’s Freedom of Information/Privacy Act Section’s litigation unit and is now a solo practitioner in Washington. “It will not be an easy decision. There are reasons on both sides.”
FOIA requires that all federal agency records be accessible to the public unless there exists a specific exemption – and there are nine, covering everything from trade secrets to the location of wells. The most applicable in this case would be those dealing with national security.
Physical control over the photos will be an important threshold question. If all copies of the pictures are held by the White House, the president is golden — the White House is exempt from FOIA requests (what a stupid, anti-democratic rule).
But let’s assume there’s at least one picture that is not at the White House. Then we have to look at the national security exemption:
Alternately, the agencies could claim that the photos fall under one FOIA exemption, which covers records “to be kept secret in the interest of national defense or foreign policy and are in fact properly classified.”
One issue, Zaid said, is that the raid is not secret. “Releasing the photos would not reveal the operation. That’s been done,” he said. “Can the photos by themselves be classified? The government may have a hard time arguing this.”
You know what I’d love: if Sarah Palin or any other conservative who wants the President to release these photos argues that they should not be subject to any kind national security exemption. If they do that, we’ll be able to say that they aren’t raising this issue as just a political gambit.
In any event, looking at the law surrounding these photos is much more interesting than looking at the politics surrounding these photos.
Experts predict difficulties for news orgs’ FOIA requests to release bin Laden photos
[National Law Journal]