Obama Doubles Down on Secrecy

From Judicial Watch:

Obama Doubles Down on Secrecy

Another Judicial Watch secrecy battle gained international attention this week with the publication of a news story in The Atlantic Wire regarding JW's dogged pursuit of the bin Laden death photos. JW filed a lawsuit to obtain them while the Obama administration continues to cling to the bogus claim that they must be withheld for vague national security reasons. 

(Meanwhile, as I pointed out last week, the Obama Department of Defense (DOD) evidently had no problemleaking classified details of the Navy SEAL raid that led to bin Laden's capture and killing to a Hollywood filmmaker to help make the president look good.)

Here's what The Atlantic Wire had to say about our lawsuit and the Obama administration's latest legal response:

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 Department of Justice'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, non-exempt portions of the records that are legally required to be disclosed," Metcalfe told The Atlantic Wire.

Metcalfe, The Atlantic Wire notes, has defended the federal government in more than 500 Freedom of Information Act (FOIA) lawsuits in his career. And in his view the Obama administration "overplayed its hand" by making the overly broad assertion that all bin Laden images are off limits due to national security claims. And, more importantly, Metcalfe suggests government lawyers left a large loophole in their brief through which some of the bin Laden photos could likely slip.

Here's why.

The Obama administration notes in its legal response to Judicial Watch's lawsuit that, "…even if any sensitive information about specific intelligence methods or specific military operations could be redacted from the records, as Judicial Watch suggests, the remaining material - i.e., post-mortem images of the dead body of the former leader of al-Qi'ada - would still be exempt from disclosure."

So, in essence, government lawyers admit that "sensitive" information could possibly be segregated. (The FOIA experts interviewed for The Atlantic Wire article indicated the federal government could easily "chop up or slice" the images currently being withheld into non-sensitive material.) 

Judicial Watch attorneys very carefully, and repeatedly, made reference to the segregability issue in a courtfiling, noting that the Obama administration defendants "fail to provide any evidence that visuals of tactics, techniques, procedures, or personnel cannot be segregated from the visual of bin Laden's body."

According to FOIA law, the government must release all information responsive to a FOIA request that can be segregated from sensitive or classified material. This mandate was reaffirmed by an executive ordersigned by President Obama on December 29, 2009.

Nonetheless, when questioned by Politico during a White House press conference on January 26, 2012, White House spokesman Jay Carney repeated President Obama's position on the photos/video sought by Judicial Watch. Here's the relevant excerpt from the press conference:

Q Thanks, Jay. I just want to ask about the photos of the raid on the Osama bin Laden compound. There have been reports that some of them may be released.

MR. CARNEY: Was that in the British media? (Laughter.)

Q No, that was actually in the Atlantic Wire -- thank you. The President had said previously that he does not favor the release of any of these photos. Couldn't there be portions of the imagery that could or should be released without implicating national security?

MR. CARNEY: I honestly have not seen those reports. The President's position on the release of images of Osama bin Laden, in particular, was very clearly stated at the time and has not changed. I would have to either refer you to the Defense Department on the broader question of other photos that may exist, and I can take that question as well.

The Obama White House won't be able to get away with glib references to the British tabloids in court to distract attention from its failure to follow the law. There they must defend their secrecy in light of the dictates of FOIA law. And like the experts interviewed for the Atlantic Wire story, we believe there is no way to defend the Obama administration's legal position on the bin Laden death photos.

Stay tuned. Our lawyers will file a response to the Obama administration with the Court on February 8.