A federal judge overlooked a key legal requirement in his ruling rejecting the a lawsuit seeking the release of Osama bin Laden's death photos, says Dan Metcalfe, the former director of the Justice Department's Office of Information and Privacy.
On Thursday, U.S. District Court Judge James Boasburg rejected conservative activist group Judicial Watch's bid to force the government to release bin Laden's post-mortem images. What the ruling effectively means is the general public is never going to see documentation of the terrorist leader's final moments before being dumped in the North Arabian Sea. That is, unless Judicial Watch succeeds in the appeal it has already filed.
Reviewing Boasburg's decision, Metcalfe tells The Atlantic Wire the judge's opinion "is flawed from beginning to end." That's because the judge overlooks a disclosure provision in the Freedom of Information Act known as "reasonable segregation," he says. "[Boasburg] never once recognizes the legal obligation of both the agency and the court to focus on the distinct contents of a record rather than merely a record as a whole among others." What Metcalfe means is FOIA requires agencies to do more than just declare a whole batch of materials exempt from disclosure. In the case of the bin Laden materials, for instance, the CIA says it has video and images of the slain terrorist that is all exempt. But disclosure provisions require that agencies try and find parts of the materials that are less sensitive such as still images extracted from video footage. Looking at the bin Laden materials, for instance, one could argue that a still image of bin Laden wrapped in a burial cloth on the USS Carl Vinson is less sensitive, but such segregable images were not considered by the court.