Once Again, The Freedom Of Information Act Is Proving To Be Just That: An Act

from the freedom's-just-another-word-for-[REDACTED]- dept

Once the word got out that a photo had been taken of Osama Bin Laden, for identification purposes, everyone and their journalistic mother filed a FOIA request to see the pictures. And as has sadly become par for the course, these requests are being stonewalled by the administration, which has apparently learned nothing from the DHS vs. "activist groups" debacle.

Sadly, this is no ordinary stonewalling. In direct violation of the FOIA terms, it looks as if these requests are being handled by Robert Gates and his staff, rather than the non-partisan FOIA employees who are supposed to be handling them, according to this official response from the Department of Defense:

The Office of the Secretary of Defense/Joint Staff FOIA Office is responding on behalf of the entire Department of Defense to all FOIA requests within the DoD for information related to the operation that resulted in the death of Osama bin Laden. Therefore, they will respond directly to you concerning the FOIA request that you sent us. 

The wording of this response certainly suggests that these OBL requests are being handled higher up, as non-partisan employees would be hard pressed to satisfy the requirements of their job and the administration’s desire to keep the photos classified. Fortunately for them, their responsibility seems to have been relieved by an appointed member of President Obama’s staff and the spectre of "threat to national security" duly summoned in order to wave off any inconvenient demands.

Of course, should this "threatening" photo ever make it out of its governmental quarantine, it will probably end up being 3/4 redacted and 1/4 thumb. Even so, would it kill these agencies to at least pretend they care about the rules that are supposed to govern their actions, much less the transparency that was promised so often over the past few years.

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Comments on “Once Again, The Freedom Of Information Act Is Proving To Be Just That: An Act”

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Mr. Smarta** says:

What if...? And who?

If an FOIA request is approved and the picture of dead Usama bin Laden is released, sending the rest of the muslim nation to attack the US and kill thousands of people again, who would step up to take that responsibility? Who would carry the guilt of causing those deaths on their shoulders? Certainly not the government as the system would essentially tie their hands. The media sure as hell wouldn’t as they would sit around with their thumbs up their collective a**es pointing fingers and pull back to that ‘neutral reporting’ they love to use so much when it suits them.

The guilt would have to fall upon the one requesting the picture. So who would take that responsibility and have to deal with/pay for the aftermath? Or would keeping the picture hidden keep the muslim community at ease? Would they want pictures of your dead mother or grandmother just to ‘prove’ she really died?

Josef Anvil (profile) says:

Just a simple answer

Could someone please give me the reasons that a photo of a dead OBL would be a threat to national security or should remain top secret?

It would seem that keeping such a photo secret does much much more to threaten national security. What is to keep any and all terrorist groups from simply saying that OBL’s death is just US propaganda?

Personally Im getting a bit sick of all this terrorist bullshit.

Hulser (profile) says:


The freedom of information act doesn’t mean you get access to anything you want whenever you want without restriction.

Tim didn’t say that it did, so what’s your point?

What is so difficult to understand about that?

The violation which is the focus of the post isn’t that the photo is being withheld, but the nature in which it’s being withheld. Specifically…

“In direct violation of the FOIA terms, it looks as if these requests are being handled by Robert Gates and his staff, rather than the non-partisan FOIA employees who are supposed to be handling them”

So, what’s difficult to understand is how the DoD, with approval from the Obama administration, is so blatantly allowed to break the law. If the photo has been tagged “secret” as you say, then the normal FOIA process woudl apply and it could be withheld.

Mr. Smarta** says:

What if...? And who?

Doesn’t matter. If we release the death picture of one, then it should be for all. Every soldier, every person killed in a car wreck, every individual out there. Why disciminate? How do I know some mass murderer who was executed in the electric chair actually occurred? Am I supposed to take the word of a so-called ‘witness’? I don’t want to, but I have to.

Anonymous Coward says:

I would love to see the photo, but I don’t see how releasing it will solve anything. People will still doubt it’s him. People will still try to use it as reasons for vengence. People that OBL killed will still be gone, and families left behind currently missing feelings of closure will still not have it.

Separating my curiosity from logic, I just can’t find a good enough reason to incite more anger.

Hulser (profile) says:

What if...? And who?

If an FOIA request is approved and the picture of dead Usama bin Laden is released, sending the rest of the muslim nation to attack the US and kill thousands of people again, who would step up to take that responsibility?

Who should be held responsible for a terrorist attack? Uh…the terrorists?

The guilt would have to fall upon the one requesting the picture.

Do you also think that rape victim’s are to blame because they were “asking for it” by the way they dressed? And do you think that Alexander Graham Bell should be held accountable for every prank phone call? Here’s a novel idea, what if we held people accountable for their own actions instead of placing the blame on others?

In reference to this particular case, I’d much rather have a government that was open by default (and deal with any negative repurcussions) than to have a government that not only hid things by default but hid the way that they hide things. More information is better for democracy, not worse. And the good news is that it’s going to just get harder and harder for the government to keep information secret anyway.

Anonymous Coward says:

What if...? And who?

i guess you’d have to take into consideration the relevance of the person’s death to anything whatsoever. for example, there are no death pictures of my dead grandmother. why? because nobody in their right mind would want to see them for any purpose other than sheer idiocy. talk about reductio ad absurdum.

Mr. Smarta** says:

What if...? And who?

Not at all. If we release pictures like this, then we should do it across the board. Every relative, every family member, from the youngest child to the oldest person. If I want to file a FOIA request on one of your family members who died years ago, then I should get it just like someone should get the Usama bin Laden picture. There should be no discriminating at all, otherwise we’re just hypocrits.

Mr. Smarta** says:

What if...? And who?

I didn’t say rape victims are to blame. I’m saying that if we want information to be free and open to the world, then ALL OF IT should be released. Everything from a terrorist’s death to your family’s health history, to every single person’s death picture. Actions should not matter.

I always read how everybody demands transparency in one hand, but privacy in another. “I want my privacy!! But everyone needs to be transparent to me!!”

I say we’re either 100% transparent, or we get to keep our privacy. It shouldn’t matter if we’re government employees, politicians, government departments, government contractors or Sweet Sister Mary Francis down the street. It shouldn’t matter if I get paid by taxes or by a private entity. Release ALL information without regard to whom or what.

But that release of information comes with it a heavy price. And that price may very well be another war; whether it be through wikileaks or otherwise. We must still be responsible for our actions.

AJ says:

Missed the Point?

I think I understand the point of this story.

The Gov made the rules, the Gov expects everyone else to play by them. When the rules don’t further their agenda or are not to their liking, they simply change or ignore the rules, where we the people have no such luxury.

This story has little to do with a photograph, and everything to do with a mid-game rule change by our gov….

Anonymous Coward says:


I understand the process. I don’t think you understand what a “top secret” national security issue is. The information likely isn’t even stored in a manner where a FOIA request could be processed at this point, as it is fresh and new.

Perhaps you could explain why you think that current military operations should be subject to FOIA requests?

AJ says:

Missed the Point?

Tim said it better than I could…

“Sadly, this is no ordinary stonewalling. In direct violation of the FOIA terms, it looks as if these requests are being handled by Robert Gates and his staff, rather than the non-partisan FOIA employees who are supposed to be handling them, according to this official response from the Department of Defense:”


Chronno S. Trigger (profile) says:

What if...? And who?

Why does no one get this? We’re doing something that, while a little morbid, isn’t wrong. They’re doing something that is on a level of wrong that I never want to see again. Yet somehow we’re the ones at fault.

Isn’t that the same warped logic as it’s the victims fault for being raped because they dressed provocatively?

Wulfman (profile) says:


To be secret it needs to be of national security interest to mark it secret. Saying that he is dead is a good thing, producing a picture will not increase the chances that we will be attacked but it will prove to the world that he is dead.
Sen. Lindsey Graham, Republican member of the Armed Services Committee said
?I respectfully disagree with President Obama?s decision not to release the photos. It?s a mistake. The whole purpose of sending our soldiers into the compound, rather than an aerial bombardment, was to obtain indisputable proof of Bin Laden?s death. I know Bin Laden is dead. But the best way to protect and defend our interests overseas is to prove that fact to the rest of the world. I?m afraid the decision made today by President Obama will unnecessarily prolong this debate.?

This administration was to be the most open one in history and so far its been the most closed off one in history.

Chris in Utah (profile) says:


Because in “the good ol’ days” we actually had people lining up to honor our fallen comrades when they got off loaded planes. Oh and solved a national mystery of who dun it in 3 months(Pearl Harbor) rather than 3 years wish the Presidents statements redacted and with thermal expansion as the mention of a third building that fell (B7 if you didn’t know yourself).

As for other reasons I can think of a few. Casualty reports on both ends, captures or kills in action and most of all the actual dollar amount going to these wars, or rather then contractors (I still wonder who’s getting paid more). Ye know, all the things we had before National Security was deemed a silence tool so nobody sees it and its out of our minds. Or rather, I need to say, “No talking, No talking” in the best German accent I can muster. All things being equal, I still wonder where the big ant-police action people are. Oh yes, dancing in the Jefferson Memorial being escorted out by swat.

In case you missed it, Transparency is just another in a long line of failures, wait no its not. Transparency implies see though, but nobody said how opaque it can be.

James Carmichael (profile) says:

The actual reason why...

There’s actually a very valid reason why the FOIA is limited in such manner. You would understand and apologize immediately if you knew what it was, unfortunately we can’t tell you because it’s a matter of National Security. The government is also on its way to seizing your car and banging your wife. Why? Can’t tell you; National Security. Why National Security? Fuck you, that’s why.

Hulser (profile) says:


There really isn’t a difference here. The FOIA employees would defer any request for classified info back to the agency.

There’s a big difference. I don’t claim to be an expert on this process, but presumably, the FOIA employees have a deterministic process to identify the (secret) classification of any piece of information. Perhaps this process involves a request to outside agencies, but the point is that the FOIA employees are supposed to be responsible for ensuring that the overall release process is free of bias. The big difference is that if you leave the decision on whether to release something up to the very people who are affected by the decision, you have a non-deterministic process because the decision can (and most likely will be) be biased. It’s like the fox watching the henhouse.

If Gates and crew just didn’t want the photo released, all they had to do was categorize it at top secret. That fact that they broke the procedure (if not the law) by taking over the whole approval process seems to indicate that they wanted to circumvent the controls that had been put in place.

Anonymous Coward says:


Why do I have a feeling this is one of those things that is steeped in legal nuance and not really top secret, but not really information that can obtained by an FOIA request? Either way, there’s always a court of law, which is eventually where this will end up, and they’ll decide whether a congressional law trumps the commander-in-chief’s military powers(my guess, it won’t).

Either way, it will come out eventually, probably after the hubbub about OBL has died down(which is all the admin is trying to do, not pour gas on the fire of islamic extremism). An aside, why is it that everyone feels the need to see this?

Anonymous Coward says:

What if...? And who?

If we’re a country founded on personal liberties, we should never look to another person’s bad behavior as justification for ours. Not saying the release of a picture is bad behavior(although I think there are valid arguments on both sides), I think your premise of “they’re horrible people, so what’s the harm of what we’re doing” is off base.

For some reason I feel like someone’s mother saying “2 wrongs don’t make a right.”

Anonymous Coward says:

What if...? And who?

What if you worked for the government, does that open all of your actions up to being transparent? And are government contractors open to this level of transparency? What about the sub-contractors? Do you think there is anything that a government should ever be able to keep from its citizens, just in terms of security of the county(like codes for arming nuclear weapons)?

John (profile) says:


Why is this such a big deal? There are many types of records FOIA requests don’t recovery. I don’t get to FOIA the medical records and photos of soldiers killed in battle, nor do I want to. Similarly, what morbid reason does someone have to see a photo of Osama Bin Laden dead?

It sounds most like the folks who want this are either the kind who would have collected dead-gangster trading cards in the 1920s or 1.) think Obama is Kenyan or 2.) think the U.S. orchestrated 9/11 to get Iraq’s oil.

As for the DoD’s use of Gates to handle the requests being against the law, that’s not actually true. The law doesn’t require a non-partisan group of folks set up to handle FOIA. Rather, the law requires that an agency publish rules, regulations, and fee schedules for how FOIA requests are handled.

Failure to follow agency rules is potentially a violation of the Administrative Procedures Act (APA), however. But that’s a totally different thing (and courts have trended towards being more understanding of agencies in these situations).

Further, the photos may be exempted from FOIA for a number of reasons, including 5 U.S.C. ? 552(b)(6), which exempts “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]”

For the record, you can read the law here: http://www.law.cornell.edu/uscode/5/usc_sec_05_00000552—-000-.html

Wikipedia also has a good treatment of it.

Finally, this whole post seems a bit melodramatic. Then again, I don’t think Obama is Kenyan, so maybe it’s just my perspective.

John (profile) says:


I question your interpretation of FOIA.

How DOES it work? Perhaps you can provide a link to the Act or something else that outlines it? I know the ACLU has a good resource but I haven’t been able to find it in electronic format yet.

The actually law, however, doesn’t specify how an agency must go about this process. Rather, it sets minimum requirements (which appear to be met in this case) and leaves it up to the agency to create specific regulations.

This is NOT law, but regulation. Failure of an agency to follow its own regulations might violate law, but not the FOIA. Rather, it’s a violation of the Administrative Procedures Act (or APA).

But, perhaps I’m missing something. I don’t file FOIA requests, and I know you have more experience and expertise than I do.

So what am I missing? And where can someone learn more about this?

crade (profile) says:


Your post seems worse than melodramatic. The OP never tries to claim either:
a) the photo should be released or
b) people should request the photo
As you are trying to make out like he does in your comments.
The article is about the government not handling Freedom of Information Requests as they said they would.

Ok, so the only part I see that is at all related to the article is the legality of the FOIA actions and what you say is that the law only says they must publish rules, but they are under no obligation to follow them?

Hulser (profile) says:

What if...? And who?

What if you worked for the government, does that open all of your actions up to being transparent?

Not all of your actions, but any that relate to your role as an agent for the government, no matter how many “sub” levels you are down in the process. So, for example, what you did on your own time as a government agent is private, but every single one of your e-mails on your government account is not. If you work for the IRS, the picture of your dead body (if there was one) would be private. But if you are a private citizen of another country, but you masterminded one of the largest massacres of innocent lives in human history which later warranted a military strike to kill you, the government’s requirement for transparancy supercedes your right to privicy.

John (profile) says:


Given the tenor of the comments I discussed why I personally felt the photo should not be released.

Hardly “worse than melodramatic.”

I then proceeded to outline why FOIA was not being violate, contrary to the original post’s assertions otherwise.

Also hardly melodramatic.

And yes, I do say the law only says an agency must publish rules. The original post does not outline what those rules are or how they are violated.

The assertion that the DoD must absolutely go through a non-partisan FOIA office is unsupported in the original post. They might be correct, but bear in mind that FOIA allows EACH agency to create its own rules — so one agency’s rules won’t necessarily be the same as another’s. (Although I’d hope they’d be somewhat similar.)

As agencies having no obligation to follow their own regulations, this is NOT a matter of FOIA but, as I stated above, a matter concerning the Administrative Procedures Act. Agencies can be compelled to follow their own regulations, and failure to do so can subject an agency to liability or over-ruling, but there is a lot of case law in this area.

It is by far uncertain whether the DoD’s actions violate the FOIA. More importantly, why does the original poster think releasing death shots of Osama bin Laden warrants the outrage he shows to begin with?

There are worse abuses of the FOIA. For example, relevant and pertinent records necessary to further civil lawsuits (or defend criminal lawsuits) have been rejected in FOIA requests. These rejections have real consequences.

Not releasing Osama’s death shots just keeps our country from going back to the day when you could collect death cards for criminals shot down by the law. I happen to think that’s a good thing; some of the commenters here don’t.

You, however, feel engaging in the discussion as I did was “worse than melodramatic.” Me, I just feel it’s melodramatic.

Anonymous Coward says:

A few comments as someone who does FOIA and actually drafted a few letter with the official statement mentioned:

1. OSD/JS FOIA is essentially the same entity as the Defense freedom of Information Policy Office. They’re in charge of DoD FOIA. They aren’t pulling an extralegal power grab to ensure “appropriate” processing of these requests – they’re in charge of all aspects of the DoD FOIA program – all the DoD FOIA offices answer to them. If there were a suppression of information, it would be much easier and less visible for OSD/JS to send a guidance email requiring their review before release, and requesters would be none the wiser.

2. A much more likely reason for the centralization of response is because every news agency and their cousin was sending several FOIA requests related to bin Laden to every single DoD FOIA office. The office I work in received 6 separate requests from a single newspaper, splitting hairs on what particular element related to the operation they were requesting. And that same newspaper sent another request from another individual (and chain of editorship) for overlapping information. Several newspapers times several requests per newspaper times several agencies, msot of which never touched the operation equals a massive waste of resources and delay for all other FOIA processing. Centralizing the processing of one particular category of request like this can, perhaps, in theory, be used to supress the information. I just don’t think it’s likely.

3. If they aren’t going to release the bin Laden photo or documents related to it, there’s no reason why they can’t or won’t claim (b)(1) – classified information. If they can think up a reason that witholding the information is in the interests of national security, courts are likely to defer on the matter. I really don’t see how there’s even a NEED for the conspiratorial cover-up that’s proposed. Not that it isn’t possible. I just don’t see it.

Personally, I feel that the Government should have released the documents within the week of the announcement, even if they were heavily redacted versions. There was every reason to expect a flood of FOIA requests, and mechanisms an policies in place for the release of documents in anticipation of requests. Then again, I’m also a regular Techdirt reader.

As far as information related tot eh FOIA and how it works, http://www.dod.gov/pubs/foi/ covers pretty much all the information you’d need to know with regard to DoD. A walkthrough of how all the stuff works in practice would be a bit mroe in-depth, but, for the most part, under the text of the FOIA (http://www.usdoj.gov/oip/amended-foia-redlined.pdf), what you see is what you get. The courts aren’t patient with technicalities and corner cases that don’t pass the smell test. Especially following the recent ruling of Milner v. Dep’t of the Navy, 131 S. Ct. 1259 (2011).

Chronno S. Trigger (profile) says:

What if...? And who?

Where’s the second wrong? We showed Saddam’s body, we showed the Pope’s body, we show soldier’s bodies (though the last two were out of respect not proof). It’s not wrong, it’s not right, it’s just news.

I’m not arguing for or against the picture being shown. Now that I think about it, I think we should just forget the asshole entirely; I can’t think of anything more disrespectful. But that’s not the argument.

The argument has three sides:
1) It’s wrong to show the picture
2) It’s dangerous to show the picture
3) The picture is possibly top secret

1) It’s not, it’s a neutral action (yes, they exist).
2) We cannot be afraid to do something that isn’t wrong, that’s not how this nation was founded.
3) This is where my problem is. If it is Top Secret then why not just say that instead of tip towing around the issue?

Seriously, why did the government let this happen. I can see two ways they could have handled this. Just tell people they’re still using it and say it’s top secret, end of discussion. Or release the picture, even if it’s fake it doesn’t take this long to photoshop a bullet wound.

BeeAitch (profile) says:

Let sleeping dogs lie

This is a bullshit argument.

Fanatical religious zealots (of any flavor) will do their utmost to realize their goals. They are already “giving 100%” to their “cause”. They cannot, by reason, do more than 100%. Releasing the pictures does no harm: it only serves to extinguish doubt about the fact that he is dead.
Until they’re released, there will be doubt.

Release the photos, then everyone can “just let it go”.

PrometheeFeu (profile) says:

Let sleeping dogs lie

That’s not how it works. By default, photos produced by the government are open to the public because we paid for it and the government works for us. The burden is on them to provide a very good reason why they should deny us what is rightfully ours. They have not. Their reasons are effectively: “It might make others feel bad and react violently.” Let me tell you what else makes people react violently: When you shoot them and bomb their homes. Yet last time I checked the US does not give in to terrorist demands to withdraw from Afghanistan. Why is the US giving in to terrorists? This is at best cowardice.

Any Mouse (profile) says:


Reading through the text of the FOIA, I see nothing that indicates that a non-partisan party must handle the request. It is the responsibility of the agency in possession of the documents to handle the request, which does beg the question why the Sec. of Defense is responding, himself.

Could someone point to the regulation that indicates a non-partisan party makes the response?

PrometheeFeu (profile) says:


Invasion of privacy? Really? I’m pretty sure Bin Laden’s privacy rights became the least of this administration’s worries when they ordered the SEALs to blow a hole in his compound and shoot him. If not, I’m pretty sure the part where they revealed to the media that they found his porn collection conclusively demonstrates that they don’t care about his privacy rights. They are being hypocritical as always.

This isn’t about some crazy conspiracy theory that Osama is alive and well running the CIA or some similar BS. This is about the government abusing national security privileges pretty egregiously. Basically, what Obama is saying is that we don’t get to see that photo because it would make his job harder. Well tough. The government is beholden to the people, not the other way around. If Obama thinks it’s too tough to run the executive branch transparently, he’s welcome to go back to being a law school professor.

crade (profile) says:


ok, maybe your right, it was just melodramatic, not worse. You will forgive the exageration 🙂 Personally, I don’t think they should be forced to release Bin Laden’s photo at all, but I do think it’s very important that the rules for what information can be withheld from the voters need to be spelled out *and* be safe from abuse and corruption in order to be at all effective. Personally, I would say the scenario that you bring up where rules must be published but the actual policies followed are allowed to be something else entirely is a much worse case than if it were illegal.

dj haras says:

What if...? And who?

stop being such a weenie, ms. smartazz!! this is the same gov’t that said the wikileak debacle would cause countless loss of life and servicemen/women being exposed. conclusion: NO THREAT!!

it’s all a front! what are you so worried about? what makes you so sure that “the rest of the muslim nation” will endanger us? it’s generalizations of that nature that get us in trouble in the first place. stop worrying about what’s oversees and worry about your OWN DAMN HOMELAND!!! or unless you haven’t been awake lately THE EMPIRE IS CRUMBLING!!!!

Anonymous Coward says:

What if...? And who?

I guess I took issue with “They’re doing something that is on a level of wrong that I never want to see again. Yet somehow we’re the ones at fault.” I didn’t see how their level of evil justified our level of evil(if it is, which you can debate).

Really, I thought the whole thing was an anti-climatic end to spending a trillion+ dollars on wars, which may or may not make any difference in the long run. I see the argument that you don’t want to add fuel to the fire, and since I could care less if I ever see “proof” of his death, I don’t see the hubbub. As for why did we release Hussein and not OBL, it could be that Bush had more of a “scorched earth” policy and wanted to “deter” dictators, while Obama is somewhat sensitive to how we may be viewed by countries in that area of the world. There’s also the distinction that Saddam was largely regional, in a country that we had invaded, while OBL was a figurehead for an amorphous group that has the ability to retaliate.

The other factor, which I’ve only heard mentioned rarely, is that they very well could be covering up possible war crimes. From the interviews I’ve heard, under international law it’s only legal to kill a foreign national on their soil if you’re 1) at war or 2) in imminent danger. The first, there may be a legal loophole, but nobody wants to take the steps to walk through it, and the second can only come about if the people who were “capturing” him felt that their life was under threat. If the photos never come out then the only account of the events are what was given by seal team 6(tm), which has been carefully scripted to tiptoe around the issues.

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