A watchdog group says it is prepared to file a lawsuit to obtain photos of Osama bin Laden’s corpse.
Judicial Watch, which has sued the government multiple times for documents under the Freedom of Information Act (FOIA), has already filed requests under that law to obtain photos of the al Qaeda leader’s dead body.
“We are prepared to sue if they don’t respond as they are supposed to under the law,” Fitton told The Hill. “I have not heard anything from the president that would provide a lawful basis for not providing the photos. Not wanting to be seen as ‘spiking the football’ is not a lawful reason to withhold documents under FOIA.”
On Tuesday, Judicial Watch filed a FOIA request with the Defense Department for photos and videos of bin Laden on the day of the U.S. military raid on his compound in Abbottabad, Pakistan. The group also filed a request for the bin Laden photos Wednesday with the CIA.
Under the law, the Obama administration has 20 days to respond to those requests. If those requests are denied, the watchdog group can file an appeal and eventually a lawsuit to secure the release of the photos.
“This is arguably the most important military operation in our lifetimes. This is basic information,” Fitton said.
On Sunday night, Obama announced that U.S. forces had killed bin Laden in a raid on his hideout. After several administration officials gave differing responses on whether photos of bin Laden’s corpse would be released, Obama on Wednesday ruled out disclosing them.
“It is important for us to make sure that very graphic photos of somebody who was shot in the head are not floating around as an incitement to additional violence or as a propaganda tool,” Obama said in an interview with “60 Minutes” that is set to air Sunday. “The fact of the matter is this was somebody who was deserving of the justice that he received, and I think Americans and people around the world are glad that he is gone. But we don’t need to spike the football.”
Fitton said the administration needs to provide written justification for why they are not releasing the photos.
“It is important to trigger this FOIA process because it would put this in a regular order. The way this has been handled in regard to the document response is bumbling. This at least would force them to put pen to paper,” Fitton said.
Legal technicalities could halt the release of the bin Laden photos.
Those responsible for the raid on bin Laden’s compound — special operations forces soldiers and intelligence personnel — likely took the photos and report to either the Defense Department or the CIA. Both of those federal agencies are covered by FOIA. But if the photos were deemed White House records, they could be exempt from the disclosure law.
Daniel Metcalfe, the former director of the Justice Department’s Office of Information and Privacy, which oversees FOIA across the federal government, said that’s a possibility.
“If the photos in all forms were shipped over to the White House and placed on Obama’s desk, the Defense Department could respond to a subsequent FOIA request saying that it has no responsive records. If an agency does not have even custody of it by the time of the request, let alone control, then that’s it, game over,” Metcalfe said.
Fitton disagrees with Metcalfe. He believes the photos were created by a federal agency, not the White House, and that the administration is bound by law to release them.
“I think they are on the wrong side of the law on this one. I believe a court decision will likely go against them,” Fitton said. “Shuffling them out of the agency doesn’t affect how the law is applied.”
Classifying the photos as secret could hinder their release as well. The classification decision would have to be supported in court, which Metcalfe doesn’t see as likely.
“And as for possible classification, it’s likely that an entire series of photos taken during this raid has been classified as a gross, digital image group. But any FOIA litigation would focus on a bin Laden death photo’s intrinsic content, and absent classifiable content shown in the background, I don’t see how that photo could properly be classified in and of itself on the basis of national-security harm,” Metcalfe said.
Other groups that have often sued for documents under FOIA are not likely to join the fray over the bin Laden photos.
Steven Aftergood, director of the Federation of American Scientists’ Project on Government Secrecy, said he believes the photos will be eventually released to the public.
“As a matter of policy, I favor the fullest possible disclosure of official records. On the other hand, I have no interest at all in examining photos of the corpse. In the absence of specific legislation, like the 2009 bill to exempt detainee photos, I believe that release of the [bin Laden] photos is supported by law and policy,” Aftergood said, referring to legislation that blocked the release under FOIA of photos of alleged prisoner abuse by American soldiers.
Nevertheless, Aftergood said he will not request the bin Laden photos since they could have bigger implications for America’s interests in the region.
“I will not be the one requesting them,” Aftergood said. “I think there are bigger issues at stake here than freedom of information, including the future of the war in Afghanistan and U.S.-Pakistan relations.”
The American Civil Liberties Union (ACLU) has often forced the administration’s hand in releasing information it has tried to keep from the public. One ACLU lawsuit eventually forced the 2009 release of memos that detailed the legal framework for the CIA’s use of waterboarding and other interrogation methods on detainees.
Nonetheless, a spokeswoman for the ACLU said the group has not filed a FOIA request for the photos of bin Laden’s corpse. Filing a request would be the necessary first step toward an eventual lawsuit.