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NEW YORK Even before President Barack Obama outlined his decision not to release photos of a dead Osama bin Laden, news organizations began filing requests to have them made public under the U.S. Freedom of Information Act.
The dispute pits national security concerns against the right of a free press. Which side prevails will turn on who is custodian of the photos and whether the photos are exempt from the Freedom of Information Act.
The first question -- about custodianship -- is critical. The Navy SEALs who descended on the al Qaeda leader's compound in Abbottabad, Pakistan, and took the photos are part of the Defense Department. But the photos now appear to be held by the Central Intelligence Agency, which invited members of Congress to view them at its headquarters.
In seeking to resist a FOIA request, the administration could invoke the CIA Information Act of 1984, said Mark Zaid, a national security lawyer. The act exempts "operational" files from publication or disclosure. The CIA may argue the photos are operational, he said.
"I think that would be an untested argument," Zaid said. "I don't know if it would work."
If the administration doesn't make that argument, the question is whether the photos would still fall under FOIA exemptions that allow the government to withhold material.
Any material in a government agency's possession is presumed to be open to the public.
But in responding to FOIA requests for the photos, the government will likely invoke either the exemption for material that is to be kept secret in the interest of national defense or foreign policy or the exemption for material related to law enforcement operations that would endanger lives, according to national security lawyers.
The CIA and the Defense Department did not immediately respond to requests for comment on the FOIA request.
During an interview with the "60 Minutes" news program shortly after the raid, Obama cited national security as his reason for not releasing the photos.
"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 said. "And given the graphic nature of these photos it would create some national security risk."
The Obama administration may soon have to make that case to a court. If the photos are not released, news organizations seeking the photos, including Reuters, would be allowed to sue.
Steven Aftergood, a secrecy specialist at the Federation of American Scientists, said it would be difficult for the administration to keep the photos secret.
"I don't believe the executive branch will be able to claim the photographs of a corpse are classified," Aftergood said. "The photographs of the corpse may be gruesome, but it's hard to say it would damage national security."
Some experts said it would depend on 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. "It's not that it's impossible but it's very difficult."
Five years ago, the American Civil Liberties Union and a handful of other organizations won a legal fight over photos depicting abusive treatment of detainees held by U.S. soldiers in Iraq and Afghanistan. In 2006, the U.S. 2nd Circuit Court of Appeals affirmed a lower court's decision ordering several agencies, including the CIA and the Department of Defense, to release the photos.
The government cited exemption 7(F) under FOIA, which authorizes withholding records "compiled for law enforcement purposes" where disclosure "could reasonably be expected to endanger the life and physical safety of any individual." According to the United States, release of the photos could have reasonably endangered U.S. troops, coalition forces and civilians in Iraq and Afghanistan. But in its ruling, the 2nd Circuit found that the government had not been specific enough about the threat.
DANGER TO TROOPS?
"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," the court wrote.
The Obama administration appealed the ruling to the Supreme Court, but before a ruling was issued, Congress intervened and passed a Department of Defense appropriations bill that exempted from FOIA request photos taken beginning on September 11, 2001, through January 22, 2009, relating "to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States."
Zaid, who said he had turned down FOIA work over the photos, believes congressional involvement was the best and mostly likely outcome.
It's unclear whether Obama would have support in Congress for legislation barring release.
Republican Senator Lindsey Graham, who was a major supporter of the photo suppression legislation passed in 2009, told Fox News that he supported releasing the bin Laden photo.
"I understand the potential backlash, but there are millions of people in this world who were very intimidated by bin Laden," he said. "They need to see photographic evidence in my view to close this chapter."
A Republican who sits on the Senate Armed Services Committee, James Inhofe, viewed the death photos last week and said the pictures -- some gruesome -- left no doubt the al Qaeda leader was dead.
Inhofe told CNN he saw 15 photos, nine taken at the scene of the May 2 raid on a compound in Abbottabad, Pakistan; three from the U.S.S. Vinson, where bin Laden's body was prepared for burial at sea; and three older photos to compare for positive identification.
Inhofe described some photos that showed brain matter protruding from an eye socket. The senator, a proponent of releasing the pictures, said he had not changed his mind after viewing them.
(Editing by Howard Goller)