11:11am

Tue May 10, 2011
The Two-Way

News Media, Advocacy Groups Press For Release Of Bin Laden Photos

President Obama decided last week that post-mortem photos of al-Qaida leader Osama bin Laden would not be released because they might pose a national security risk. They could be used as "an incitement to additional violence or as a propaganda tool," he told CBS News' 60 Minutes.

Now, The Atlantic Wire's John Hudson runs through the "news agencies and advocacy groups ... attempting to release the government's photo and video evidence via a Freedom of Information Act request."

The news organizations include The Associated Press.

"We would like to obtain images from the raid because we believe they would have significant news value," the AP's director of media relations, Paul Colford, tells Hudson. "However, we would decide about publishing all or some on the images based on our own editorial standards, which include such factors as tastefulness and whether they could cause harm or danger to others."

Politico has asked for the materials as well, and has received a response from the Department of the Army that says it is processing the request.

The conservative advocacy groups Judicial Watch and Citizens United have also asked for the photos any videos. In its request, Citizens United states that:

"We do not believe the materials requested to be covered by any of the nine traditional FOIA exceptions. FOIA provides a limited set of circumstances under which material may be withheld: (1) protection of classified matters of national defense or foreign policy; (2) internal personnel rules and practices; (3) information specifically exempted by other statutes; (4) trade secrets, commercial or financial information; (5) privileged interagency or intra-agency memoranda or letters; (6) personal information affecting an individual's privacy; (7) investigatory records compiled for law enforcement purpose; (8) records of financial institutions; and (9) geographical and geophysical information concerning wells.

"Of these grounds only one could even plausibly be asserted — that the image is exempted because it is a classified matter of national defense. To assert that the image is classified would stand in opposition to the facts and the current state of the law. The United States government has publicly acknowledged its role in the Abbottabad raid and the capture and death of Usama bin Laden. To provide visual confirmation of the death of Usama bin Laden could hardly be said to 'cause identifiable or describable damage to the national security.' "

On President Obama's first full day in office, he directed all federal departments and agencies to handle FOIA requests "with a clear presumption: In the face of doubt, openness prevails."

The president's order also stated that:

"The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears."

This raises a question:

We'll keep that question (it's not a scientific survey, by the way) open until the end of the day Wednesday.

Update at 11:30 a.m. ET. A Court Will Likely Decide:

Veteran legal correspondent Tony Mauro writes at First Amendment Center that the release-or-don't-release issue "will inevitably be fought out" in federal court and that Dan Metcalfe, who for more than 25 years headed the Justice Department's office of information and privacy, predicts the photos eventually will be released.

Metcalfe says that previous court rulings include an appeals court decision that rejected the federal government's attempt to withhold photos of the prisoner abuse at Abu Ghraib prison in Iraq.

He adds that one way the photos might be kept secret, though, is if the administration ships them to the White House and puts them in the care of the National Security Council.

Update at 12:50 p.m. ET. NPR Will Also File A Request:

Dick Meyer, executive editor for news, tells us that NPR will also be filing a FOIA request for the materials.

"Pictures of Osama bin Laden and other images from that mission would have compelling news value and public interest," he says in an e-mail to The Two-Way. "I can foresee circumstances or arguments that would lead us to refrain from publishing the images if we were to get them, but NPR should be in a position to make that decision and not simply accept the government's action."

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