Why a U.S. Court Might Order the Release of the Bin Laden Photos

Saying the photos could "endanger" the troops may not cut it for the White House

While Freedom of Information Act experts are split on whether a FOIA request will ultimately force the release of Osama bin Laden's death photos, a report by Reuters sheds news light on how news agencies seeking the photos could force the Obama administration's hand. The crucial legal precedent is the 2006 release of detainee abuse photos from Iraq and Afghanistan.

In that case, the White House argued that releasing the images "could reasonably be expected to endanger the life and physical safety of any individual." In non-legalese, the White House argued that releasing the detainee photos could endanger U.S. troops serving abroad. That's similar to the argument President Obama more recently made in his interview with 60 Minutes: "It is important for us to make sure that very graphic photos of somebody who was shot in the head are not floating around as an incitement to additional violence as a propaganda tool," he told Steve Kroft. "And given the graphic nature of these photos it would create some national security risk." If that's an indication of what legal stance the administration will take (and a number of FOIA attorneys believe it is), the government will likely cite exemption 7(F) under FOIA.

Well, in 2006, exemption 7(F) didn't fly with the U.S. 2nd Circuit Court of Appeals. The court said that the argument was too vague, ruling:

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.

In the end, Congress intervened and prevented the release of the photos. But in the case of the bin Laden photos, it's not clear that the White House has enough support to push through such a law.

Another important factor, Reuters adds, may be which judge hears the case. Attorney Floyd Abrams, known for his defense of the U.S. Constitution's First Amendment guaranteeing a free press, said news media seeking the photos faced an uphill battle. "It requires a judge to make a judgment that the judgment of the president and the executive branch is so plainly flawed that this material either shouldn't be considered properly classified or is not really related to a national defense issue," he said.