The American public may finally bear witness to some, but probably not all, of the postmortem images of Osama bin Laden taken on the night he was killed in Pakistan. That's the conclusion of Dan Metcalfe, the former director of the Justice Department's Office of Information and Privacy, after reading the government's response in a lawsuit from activist group Judicial Watch seeking "all photographs and/or video recordings" taken during the raid in Pakistan.
“If you look closely at one small segment of the government's brief, it in effect concedes that there are reasonably segregable, nonexempt portions of the records that are legally required to be disclosed," Metcalfe told The Atlantic Wire.
Initially, the Justice Department had argued that all 52 records of bin Laden were exempt from disclosure under the Freedom of Information Act. However, in its response brief filed on Wednesday, Metcalfe says DOJ raised the possibility that portions of images or video of the Qaida leader could be disclosed without "core" harm to national security. The passage in question (p. 10) raises the possibility that "sensitive information about specific intelligence methods or specific military operations could be redacted from the records."
Metcalfe, who has defended more than 500 FOIA and Privacy Act lawsuits for the U.S. government, says that the Obama administration overplayed its hand in trying to conceal all of the images and video from the raid "in lump fashion" instead of dealing with particularly sensitive images more individually. “The government’s ‘going-in’ position here, to put it in common litigation terms, is grossly overbroad," he said.
Metcalfe's point is that DOJ lawyers failed to distinguish between which portions of the records are sensitive, for one claimed reason or another, and which are not. Under subsection b of FOIA, the government is required to disclose all parts of the requested information that can be reasonably segregated from the sensitive information. The exemption was added in the 1970s to prevent the government from broadly classifying information in large chunks without having to determine what could reasonably be disclosed.
Bill Leonard, who was director of the government's Information Security Oversight Office between 2002 and 2008, tells us that an executive order signed by President Obama also requires the government to differentiate between bits of sensitive material. He points to section 1.6(g) of President Obama's executive order issued on Dec. 29, 2009, governing the classification of national security information:
(g) The classification authority shall, whenever practicable, use a classified addendum whenever classified information constitutes a small portion of an otherwise unclassified document or prepare a product to allow for dissemination at the lowest level of classification possible or in unclassified form.
Explaining what the word "practicable" means, Leonard noted, "if you're taking still photos, it's very easy to disaggregate a single photo from a batch of photos, and if you have a video it's easy to disaggregate clips from others." Therefore, the government can't just blanket-classify a batch of materials if they are easily chopped up or spliced into unoffensive documents. For instance, the government could exclude or black out images where a Navy SEAL's face appeared or the tail of a high-tech stealth Helicopter appeared.
It's anyone's guess which photographs the government would release if its hand were forced, but Metcalfe, who teaches secrecy law at American University, suggested that the images could be of bin Laden's body prior to burial in the North Arabian Sea. "[The government] tellingly does not claim that even every such image of bin Laden, in and of itself, would cause the envisioned harm if disclosed. On a logical continuum, some of them, such as images that the government admits show a 'dignified' burial at sea, must be relatively nonsensitive in nature." Judicial Watch has until Feb. 8 to respond to the Justice Department's arguments. Stay tuned.