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Former US Justice official: we may see the bin Laden pictures after all

President Obama may be forced by the courts to release images of bin Laden’s assasination. AAP

The author of this article, Daniel Metcalfe, is a former director of the US Department of Justice Office of Information and Privacy. He advised the US Government on the Abu Ghraib pictures.

President Obama says he will not release pictures showing Osama bin Laden’s dead body.

Some say the decision will only encourage conspiracy theorists while the US Government quietly briefs that the image is so shocking its release would inflame anger in the Muslim world and put American lives and interests at risk.

But questions remain as to whether it is in Obama’s gift to simply suppress the pictures forever. The United States has powerful freedom of information laws which could yet force the images into the public domain.

What processes would have gone on in the White House to deliberate on releasing the Osama picture?

It has been publicly stated that President Obama made this decision announced on Tuesday May 4 in consultation with his top aides – including CIA director Leon Panetta, who had just the day before predicted disclosure. I suspect, however, that it was something that had been considered even in advance, just as the disposition of Osama’s body doubtless was.

A big part of what they should have considered is the automatic potential applicability of the Freedom of Information Act (FOIA). There have now been several FOIA requests filed for any death scene photograph both with the Department of Defence and the CIA, and the key thing there is whether at the time a request was properly received and logged in by the agency, let’s say just the Department of Defence, whether at that moment, literally that moment, it had custody of any such photograph.

One possibility is that the White House, having some very smart lawyers, might well have anticipated this (because nowadays you have to) and they might have determined right up front that any record of this type would be shipped immediately to the White House. By that I mean the inner White House, the President and his close advisors. They are not subject to the FOI Act.

That would be a way that President Obama could give legal effect to the decision he made.

So the picture would sit in President Obama’s top drawer and that’s the end of it?

Exactly right. Let’s oversimplify this for purposes of analysis: If, in an old-fashioned way, it was just one photo taken by one Navy SEAL, a Defence Department employee with an old flash camera, you’d have the photo taken and you’d have the camera sitting there and the film in it with an image, and then the film would be developed.

In that old-fashioned sense, if the film and the photo – the negative and the positive and the film – were shipped over and placed on Obama’s desk and existed nowhere else, if that had happened prior to any FOI request being received, the Department of Defence would say to the requester, “Well, thank you for your interest but we have possession of no record responsive to your request.”

They might be nice and say: “That thing that you imagine exists did in fact once exist here prior to your request, but it was been shipped to the White House. Go to the White House for it and good luck to you.” There simply would be no “agency record” to which the FOIA could apply.

Now, in a more realistic world, it’s not just one flash camera and one photo. We’re talking about digital cameras and images that are captured within the electronic insides of the camera, and then the more high-tech question would be: “Was every last digital image, and computer-based trace of those images, transmitted to the White House such that nothing truly remains within the Defence Department or the CIA?” If not, then there is something that could be “hooked,” so to speak, under the FOIA.

What legal options does Obama have?

Obama has another threshold possibility, however. If he didn’t have absolutely every bit of the death photos shipped, which is harder when it is electronic information, and if there were still traces back at the Department of Defence or the CIA, he could under US law at least attempt to achieve the same jurisdictional bar by asserting control over that information.

This is because it is not just custody that matters. The legal touchstone, the talismanic principle under the US FOI Act, is control.

The point is not entirely free from doubt in US courts, but if President Obama were to formally assert control in that way – arguing that it was a Presidential action through and through, that he directed the whole thing, and that he was controlling the information accordingly – he would have a strong threshold jurisdictional position that any lingering electronic traces of the photo(s) at those agencies would be beyond the FOIA’s reach.

The requester could still challenge that in court, and could easily lose, but that FOIA litigant would not have an impossible time of it, which the requester certainly would have if everything had left the agency.

A lot of this depends what reality is to begin with. I can only imagine what I would have advised the President to do if I were in the White House Counsel’s Office, or still in my Justice Department role, today, i.e. take precautions in advance.

I would say, “Listen, if you think there’s any chance you are going to wind up looking at the photograph and thinking it’s too gory and you’re not going to disclose it, you better take a precaution and set this up so that it’s not subject to the FOIA to begin with.”

The very smart lawyers in the White House could well have done that, but I do not know for sure that they did.

What are the possible FOIA exemptions

If they did not take such a precaution, then some record is properly “hookable,” so to speak, and it becomes a matter of possibly applicable FOIA exemptions. The first two such exemption to consider as possibilities are Exemption 6, which protects personal privacy interests, and Exemption 7(F), which connects to the risk that disclosure might incite violence.

As to the former, there is a principle that we call “survivor privacy.” This applies in the highly exceptional case in which, for example, there is a death scene photograph and you invoke the privacy interests of not the deceased, but of the surviving family members on the grounds that disclosure would harm them, i.e., it would disturb them very much to suddenly see such a photograph of their loved one on the screen.

Would that not be deeply ironic if the United States government shot Osama bin Laden dead and then invoked care and concern for his relatives as a reason not to release information to the American public?

It would be highly ironic, it would seem quite thin as a rationale, it would seem many things. I bring it up only to shoot it down, no pun intended. It is a defence that is available in principle and under solid case law – I developed it for Martin Luther King’s family in 1978 and we invoked it successfully in the Supreme Court in the case of Vince Foster (Deputy White House Counsel who committed suicide in 1993).

But I don’t think anyone would foresee even a desperate White House resorting to this rationale in this case.

The other possibility is the one that was in fact used for photographs that were connected to the Abu Ghraib scandal. This is where it gets a little tricky and admittedly a bit geeky if you’re not a freedom of information specialist.

What we did – and I was still there (in the US Government) when we did it in 2005 – is there were some photographs the disclosure of which were firmly believed would incite violence, would really incite young Muslim males to heavy violence and therefore would pose a risk to physical safety and even of death.

And there was no other FOIA exemption defence available. So there is an exemption in the FOI Act that was used, Exemption 7(F), and that’s the one that was on its way to our Supreme Court when Congress passed a special law that covered those photographs and mooted the case out in 2009.

The two elements of that exemption are that you have to reach a judgement, as the chairman of our Joint Chiefs of Staff did, that disclosure here would reasonably be expected to cause harm over there. But that’s just the second part of the test.

The first part of the test, which is found in the threshold language of the exemption itself, is that it has to be a record compiled for law enforcement purposes. Now, in that case where we did invoke it, it just so happened that the records were compiled together by an investigating authority.

It was within the military but they were conducting a law enforcement investigation as the military can do.

However in the bin Laden fact pattern, there were no law enforcement officers on the team; rather, this was a purely military and intelligence operation, Navy SEALs and CIA.

I don’t think there is any law enforcement purpose here to satisfy that threshold requirement, so even that exemption possibility goes out the window.

This is so even though the reasons for nondisclosure articulated by the Obama Administration thus far have focused on that very “incitement” element.

What about a “national security” defence?

Yes, the third exemption possibility is our Exemption 1, which requires the record in question to be classified on the basis of expected national security harm, within certain set categories. Here’s where things might get even more trick, because it is not hard to imagine that there was a series of digital camera images, not just one, showing the injury to [bin Laden’s] skull and other things as well.

Realistically, when that camera came back on the helicopter to home base, someone might have classified the whole series of images on national security grounds. There is indeed a basis in our law for classifying something when it has to do with a military mission like this.

However, it is one thing to classify all the images together in a gross fashion, but when you focus on one or two images in particular, the question becomes, “OK, what is going to be the harm to national security from this?”

If you put aside the possibility of the odd such photo where in the background there is information about an intelligence communications device or something similar, if it is just showing the image of the corpse, it is hard to imagine how that would properly be classified.

Will the pictures ever come out?

Well, this analysis leaves you with the possibility of national security classification, and if President Obama digs his heels in, and has not taken precautions, and they have to come up with at least some FOI exemption, then he might just tell the Defence Department to invoke Exemption 1 and say that it is classified.

But I think there is a better than even chance that over time he would lose that in court – if the government did not relent, or if it were not leaked beforehand, that is.

So then the photos would come out legally?

Yes, they would be ordered to be disclosed by a court subject to the right of appeal – and to be sure, the Administration could buy a lot more time by dragging it through on appeal.

One final point, which is only partly a legal one: There perhaps would be a distinct foreign relations advantage to the United States if they were released that way.

I found this in the work I did over the years, that when the information at hand is of such sensitivity that another country or group would react to its official disclosure, it can be better if it is seen to be ordered by a court rather than undertaken unilaterally by the head of the nation.

In short, by deciding to go with even a meritless legal defence, the Obama Administration would gain the advantage of being able to say, “We tried, but our legal system is what it is” – and that would be that.

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