It may be possible to force President Obama's hand in releasing the postmortem photograph of Osama bin Laden, say lawyers with extensive knowledge of the Freedom of Information Act. President Obama's decision to withhold the photo Wednesday sparked widespread debate, with journalists and pressure groups threatening to file FOIAs to retrieve the image. The Associated Press has now gone ahead and done just that. It might work.
Yesterday Daniel Metcalf, the former chief of the Department of Justice's Office of Information and Privacy, told Gawker's John Cook that odds are better than even that a FOIA lawsuit could succeed. "If someone brought a FOIA complaint seeking the photo, and the government had improperly classified it, I think the government would lose," said Metcalf, who has experience with more than 500 FOIA and Privacy Act lawsuits. According to Metcalf, government agencies, not the White House, are compelled to release photographs under a FOIA request and the Navy SEALs worked under the CIA and the Department of Defense, which are subject to the FOIA unless the photograph was classified. Metcalf says the government doesn't have good rationale to classify a simple corpse photo because it doesn't easily fit into how federal law defines covert action.