Will Osama bin Laden’s Death Photos be Released Under FOIA? Probably Not.

"Spiking the football."

With the news that President Obama has decided not to release photos of Osama bin Laden’s corpse, twitter has been aflutter asking if the documents can be released under FOIA.  Gawker has a pretty good piece quoting Daniel Metcalfe, the former chief of the Department of Justice’s Office of Information and Privacy –essentially the US government’s number one Freedom of Information Act (FOIA) official– as saying, “If someone brought a FOIA complaint seeking the photo, and the government had improperly classified it, I think the government would lose.”

But in my opinion, that doesn’t mean that the documents will be released.  Here’s why.

Before I begin, let me state that I believe that the reason a person asks for a document should have nothing to do with the government’s decision to release or withhold that document.  So I won’t be addressing any ethical questions.  Just the law.  I’m looking at you, http://www.celebritymorgue.com .

First, Presidential records are not subject to FOIA requests.  After the administration ends, the records — which are governed by the Presidential Records Act— will eventually be more or less open to requests from the public.  But for now, they are not.  (Same goes for all current National Security Council files and –the Obama administration argues— even White House visitor logs.)  This is likely why White House Press Secretary Jay Carney was so elusive about who actually created and has possession of the docs.

But the photos in all likelihood originated and –especially if they are digital– are still in the possession of an agency that is covered by FOIA– the Department of the Navy, the CIA, JSOC and/or others.  These documents are covered by FOIA so a request to these agencies would probably be valid.

But just because an agency accepts your FOIA request doesn’t mean that it will release the document you asked for.  Here are some possible reasons the photos could be withheld:

• Exemption b(1) classified information.  If the photos are properly classified, the government need not release them.  The key word is “properly.”  How does a photo of a dead OBL harm national security?  The government may argue that it could “harm foreign relation or foreign activities (1.4d)” or that the camera used by the Navy SEALs (or whomever) is actually a classified weapons system (1.4a).  Or that the raid –even after it was announced by the president on National Television– remains a classified covert operation(1.4a again).  Of course, these findings are challengable by an appeal within the agency and then in the court of law.  But my experience shows me that courts are very often easily swayed to come down on the side of protecting “national security.”  The fastest that a FOIA ruling could be challenged in court is probably around 40 business days.
• Even if the document is not classified, that doesn’t mean that it will be released.  It could be withheld under the b(7) exemption relating to “law enforcement information” which could “endanger life or physical safety of any individual individual.”  Defining a military raid as “law enforcement” may be questionable, but it would not surprise me if the government tried to.  And it wouldn’t surprise me if a court bought the argument.
• The CIA could possible argue that the documents are part of an operational file  and therefore exempt from FOIA. Congress passed a law allowing this in 1983.
• And even if the document was not exempt from FOIA at all, Congress can pass a law exempting pretty much anything from release.   According to Propublica’s analysis, there are currently more than 240 statutory FOIA exemptions, including one about watermelon data, which prohibit the release of documents.  President Obama could  ask Congress to pass another law granting a new statuary b(3) exemption against the release of OBL’s death photos.    This is what Obama did with the second batch of Abu Ghraib prison abuse photos.
• And bizarrely, the government could even argue a b(6) privacy exemption.  It could claim the photos would constitute “a clearly unwarranted invasion of personal privacy” to Osama bin Laden or his family.  Strange but true. And the government’s tried it before.

Released through FOIA.

If the photos are classified, there is another route the requester can go to get them.  Mandatory Declassification Review (MDR).  This route might bear more fruit.  If a classified documented can be identified, it can be requested under MDR.  MDR requires that agencies determine if the document is properly classified and if it must remain classified to protect national security.  Requesters essentially get two appeals with MDR, but cannot sue in court.  The first to the agency, the second to the Interagency Security Classification Appeals Panel (ISCAP).  ISCAP is an appeals panel composed of six “senor representatives” from the Departments of State, the Department of Defense, Department of Justice, the National Archives, the Office of the Director of National Intelligence, and the National Security Adviser.  They vote if documents should be declassified or not.  The National Security Archive has had many favorable opinions issued by ISCAP.  But even an ISCAP decision can be appealed “to the President through the National Security Advisor.”  (I’ve never seen this happen.)  If I wanted the documents, I would try an MDR rather than a FOIA.

I think that the photos will be leaked or officially released rather than released by FOIA.  Congressmen and women are already passing them  around like baseball cards passing fake photos they believed were authentic around like baseball cards (which is would have been a violation of handling classified information, if the photos are indeed classified), and I believe its just a matter of time until the press gets its hands on one.  Also, there is precedent for the official release of photographs of dead militants.  Photos of a handless Che Guevara were released after his CIA-sponsored assassination.  The Department of Defense, under President George W. Bush, released the photos of Uday and Qusay Hussein and Abu Musab al-Zarqawi after their deaths.

Conversely, the Bush administration refused to release the photos of the flag-draped coffins of American solders as they returned to Dover Air Force base until the National Security Archived filed a FOIA request and lawsuit.  President Obama supported releasing the photos of the fallen American soldiers.

*****

And I welcome any FOIA experts who dispute any of the above to leave a comment.