Part 1: Freedom of Information From Osama To Ottawa

As the month of May is quickly coming to an end, theCourt.ca is taking a moment to reflect on the national and international events that have made headlines – from the assassination of Osama bin Laden to the federal elections in Canada (see last week’s post). The former event, particularly bin Laden’s death photos, prompts us to take a closer look at governmental integrity, transparency and accountability, which is an issue that has marred Stephen Harper’s government in some ways. The first of two posts will discuss the case filed in the United States that demands the release of bin Laden’s assassination photos, while the next week’s post will focus on Canada’s ever changing freedom of information legislation.

Background

Three days after US troops raided a compound outside of Abbottabad, Pakistan and assassinated Osama bin Laden, President Obama declared that the government would not make the photographic evidence of that raid, specifically bin Laden’s dead body, public. Almost as soon as that declaration was made, Fox News and its legion of bloggers began to weigh whether they could leverage the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to force the disclosure of this photographic evidence. On May 13, 2011, Judicial Watch, a self-declared non-partisan, conservative organization, filed an official complaint against the Department of Defense. Its president, Tom Fitton, argues that American people have a right to access the basic information about the killing of Bin Laden, such that their government can be held fully responsible for its actions.

Just a Political Ploy?

Given the gravity of this event within the international community as well as within the political landscape of the United States, it begs the question of whether this lawsuit is merely a political ploy – perhaps initiated by the Republican party and the conservative wing as a means to undermine Obama’s leadership in a time of war and unrest in the Middle East. (We have all witnessed the power of Photoshop.) Or, as some editorials have suggested, these photos satisfy the rage and bloodlust of Americans after the terrorist attack of September 11, 2001; an analogy can be drawn between this and Achilles’s dragging of the dead body of Hector behind his chariot, whom he killed in revenge for the death of his friend Patroclus in Homer’s epic, Iliad. In contrast, those who support non-disclosure will argue that the photographs will incite further anger in the Middle East toward America, transforming them into that “shrine” that America sought to prevent by burying bin Laden at sea. This lawsuit, filed by Justice Watch, forces us to disentangle the legal issues from these more colorful political, and even moral, issues.

Two-part Legal Analysis

Citing national security concerns, Obama vehemently defended the Department of Defense in a recent interview on CBS’s 60 Minutes. This lawsuit essentially pits national security concerns against the right to a free press. In making its ruling, the court would have to undertake a two-part approach, first determining who has custodianship of the photos and then determining whether these photos are exempt from the Freedom of Information Act.

The first part of the analysis is very problematic. Navy SEALs invaded the compound in Pakistan and took the photos. Navy SEALs are a part of the Department of Defense. However, the photos now appear to be in the custody of the Central Intelligence Agency (“CIA”), who invited members of Congress to view them at its headquarters in Langley, Virginia. If the photos are indeed in the hands of the CIA, the Agency can invoke the CIA Information Act of 1984, H.R. 5164. The CIA may argue that these photos are “operational” insofar as they aid in the fight against terror; the Act exempts “operational” documents from public disclosure. This argument, however, is untested and legal scholars are wary of its workability.

Even if the administration does not go down this path, the question remains of whether the photos could still fall under one of nine exemptions specified in the FIOA enacted in 1966. From trade secrets to the location of wells, these nine exemptions protect personal privacy and issues of sensitivity. President Obama’s rhetoric from his recent interview with CBS is borrowed from the first exemption listed in the FOIA:

a document may be kept secret if it is “specifically authorized under criteria established by an Executive order… in the interest of national defense or foreign policy and [is] in fact properly classified pursuant to such Executive order.”

Furthermore, the administration could cite law enforcement problems under the seventh exemption. The argument can be put forth that the disclosure of these photos would “interfere with enforcement procedures,” namely the enforcement procedures of the military in Iraq, Afghanistan and elsewhere. Strong arguments can be made for either position, as civilian life may be endangered if the photos were released and subsequently used as anti-America propaganda while the lives of military men and women are at stake when information about their operations is made public.

Legal Precedence

In 2006, the US 2nd Circuit Court of Appeals ordered the Department of Defense, CIA and other organizations to release photos of prisoners detained in Afghanistan and Iraq. This was a victory for the American Civil Liberties Association. The Court tackled the seventh exemption, law enforcement procedures, under the FOIA in that case five years ago. In regard to the endangerment of American troops, the Court found the US government had not been specific enough about the connection between the photos and the threat; retributive actions may be taken by those who view the photos of military men and women abusing prisoners. That was not enough though. Summarizing their position, the Court stated that:

“It is plainly insufficient to claim that releasing documents could reasonably be expected to endanger some unspecified member of a group so vast as to encompass all United States troops, coalition forces, and civilians in Iraq and Afghanistan.”

While the administration today can focus on the national security-related exemption under the Freedom of Information Act instead, this exemption may be read more narrowly as a result of the earlier case. Unless the Obama government can pin down precisely how Americans would be threatened by the publication of the photos, the national security threat would likely be read as too indefinite and indistinct by the court. Conceptually, it is important to note that the picture at hand is one of a dead man, while the pictures in 2006 contained living human beings. As gruesome and revolting as the picture may be, the government would face an uphill battle to convince a court that this picture jeopardizes the state of security. (Senator James Inhofe, who sits on the Senate Armed Services Committee, detailed to CNN that brain matter was shown seeping out of the eye socket of Osama bin Laden in one of the photos. Despite this, Senator Inhofe is an ardent supporter of releasing the photos.)

Legislative Interference

After the 2nd Circuit Court of Appeal decision was handed down, the Obama administration swiftly appealed to the Supreme Court. Before the Supreme Court could even hear the case, Congress stepped in. Congress proposed and passed a Department of Defense appropriations bill that essentially exempted all photographs taken after September 11, 2011 regarding

“the treatment of individuals engaged, captured, or detained… by the Armed Forces of the United States in operations outside of the United States.”

Lawyers and lawmakers both believe that legislative interference may be the most likely outcome in this case, too. Given the composition of Congress today, it is uncertain the issue of bin Laden’s death photographs will ultimately be decided.