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.
"Somehow, the court managed to overlook this ‘reasonable segregation’ requirement even though it is part of the statute and the court of appeals for this circuit, in particular, regularly reverses district court decisions for doing so," Metcalfe said. "Here, the FOIA required the court to focus on all distinct parts of the requested records -- such as relatively benign portions of the burial video, for instance -- and consider their sensitivity in particular, not just en gros, before accepting the government’s gross classification position. Simply put, this decision is indefensible in large part for that reason alone.”
But not everyone agrees Boasburg made a questionable ruling. Scott Hodes, a FOIA attorney in Washington, D.C., has said the government gets "a great deal of deference" on exempting materials like this, especially when it involves matters of national security. Earlier this year, Hodes told The Atlantic Wire that because determining whether revealing bin Laden's images would jeopardize national security is a "subjective" opinion, for many judges, it would be unusual for them to rule against the government. In this case, the government argued the images would inflame the Muslim world. Hodes said it would be unlikely that a judge would say, "you're not right, it wouldn't inflame the rest of the world."