The push for the photos pits the public’s right to know against fears of anti-American violence. | Reuters Deadly exposure: The Osama bin Laden photo battle

President Barack Obama has ordered photos of Osama bin Laden’s dead body to be kept secret, but a growing number of news organizations, conservative groups and transparency activists are pushing for their release — pitting the public’s right to know against fears of inciting anti-American violence.

Just hours after a Navy SEAL team killed bin Laden in his Pakistan hideout, Freedom of Information Act requests for photos and video of bin Laden and of the U.S. raid and its aftermath began piling up at the Defense Department and the CIA. The list of groups requesting or planning to request the photos includes news outlets such as The Associated Press, NPR and POLITICO; conservative groups like Judicial Watch and Citizens United; and a citizen-journalism website that allows the public to track FOIA requests in real-time, Muckrock.com.


This week, the administration offered members of the House and Senate Intelligence committees and some other lawmakers an opportunity to view the photos at CIA headquarters.

Sen. Jim Inhofe (R-Okla.) saw them Wednesday and said that, while many were “pretty graphic,” at least some should be shared with the public to end conspiracy theories that bin Laden is still alive. Inhofe said he’d favor disclosure of less gory photos taken aboard the USS Carl Vinson before the Al Qaeda leader was buried at sea. But House Intelligence Committee Chairman Mike Rogers (R-Mich.) saw the pictures soon after they were taken and opposes their release, arguing the images could endanger U.S. troops and inflame anti-American sentiment in the Middle East.

“This is basic information about arguably the most important military action taken in our lifetimes other than the initial entry into Iraq and Afghanistan,” said Tom Fitton of Judicial Watch, a group that regularly files and litigates FOIA requests. “The idea that this basic information documenting bin Laden’s demise would be withheld from the American people won’t stand.”

Shortly after the raid, it appeared likely the photos would be disclosed. CIA Director Leon Panetta predicted they would “ultimately” become public.

But Defense Secretary Robert Gates said Thursday that he and Secretary of State Hillary Clinton had recommended against releasing the images, in part because they worried people would alter them using Photoshop or other technology in “outrageous” ways that could incite violence against U.S. troops.

Obama also cited fears of violence against Americans worldwide in an interview on “60 Minutes” Sunday, and noted the photos might win recruits for Al Qaeda.

“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. … We don’t trot out this stuff as trophies,” Obama said. “We don’t need to spike the football. And I think that given the graphic nature of these photos, it would create some national security risk.”

Fitton said he doesn’t buy those explanations.

“Not wanting to spike the football or gloat, those aren’t FOIA exemptions last time I checked,” Fitton said. He said the administration’s decision to release videos found in bin Laden’s hideout and details about troves of information discovered there undercuts the credibility of the White House claims that photos of bin Laden need to be held back.

Editors at news organizations that requested the photos cited the need to pursue all avenues of information.

“We always come down on the side of more information and transparency,” said Bill Hamilton, a deputy managing editor at POLITICO.

AP Senior Managing Editor Michael Oreskes said his news organization FOIAed the photos as part of its newsgathering before the White House announced it wouldn’t release them.

“We filed on the morning after the raid and it covered a range of material gathered in that moment, not just the well-known photos,” Oreskes said. On Saturday, the AP reported that the Pentagon told the news agency that it would not expedite its review of the FOIA request, saying AP did not demonstrate an urgent or compelling need for the photos or show that the information has a particular value that would be lost if not provided in an expedited manner. The AP report noted that the Defense Department’s decision sets the stage for a protracted battle over the images.

Oreskes emphasized the AP’s request for the information didn’t mean it would be published. “We have a long history of looking at complicated, difficult, literally explosive material and deciding what is and isn’t appropriate to use. We think those judgments belong in the hands of journalists in most cases,” he said.

However, one of the basic principles of FOIA is that if something is released to one requester, it must be released to all requesters. So while the AP might consider some images too gory or inflammatory to distribute on its wire, any photos the news agency pries loose from the government are sure to be plastered all over the Internet by others.

“I’m sure that argument will be made,” Orsekes said. “We still think it’s our job to open the gates.”

Oreskes said the AP hasn’t decided whether it will sue if denied some or all of the material. “We’re going to wait and see the government’s response,” the AP editor said.

Yet a court battle over the photos seems inevitable: Judicial Watch says it plans to sue if the images aren’t handed over. Experts are divided about who is likely to win, but they agree Obama will be accused of hypocrisy for undermining his own transparency claims.

“There’s a much better than 50-50 chance the government would not prevail,” said Dan Metcalfe, a former co-director of the Justice Department office that oversees FOIA policy, who now teaches law at American University.

However, a lawyer who has battled in court for decades for access to government records under FOIA, said there’s virtually no chance a judge would order the photos disclosed.

“The chances are between slim and none,” said Alan Morrison, who co-founded Public Citizen Litigation Group with Ralph Nader. “No court is going to overturn a presidential decision on this matter.”

Lawyers laid out various arguments the government could use to withhold the records, including that they are classified for national security reasons.

“The photos remain classified, exist electronically on classified systems and are still in the possession of intelligence officials,” Col. Dave Lapan, a Pentagon spokesman, said Tuesday.

Brad Moss, a lawyer who regularly files FOIA lawsuits for requesters, said judges show a “monumental amount of deference” when the government invokes a classification exemption. “It is a real uphill struggle to overcome,” Moss said.

But some experts say classifying the photos, especially ones that simply depict bin Laden and his wounds, is a stretch.

“I doubt that photos of the corpse could be properly classified,” said Steven Aftergood of the Federation of American Scientists, one of Washington’s foremost authorities on classification. “To do so would require a determination that their disclosure would somehow ‘damage national security,’ which seems far-fetched.”

Metcalfe also said the notion the photos could incite violence may be “simply too attenuated” to justify classifying them.

“The question is, what would be the national security harm? … That incitement element is one that has rarely if ever been used as a basis for national security classification,” Metcalfe said. “Rioting in the streets is not known as national security harm per se.”

In 2009, the Obama administration mounted a similar “incitement” argument in litigation over photos of alleged abuse of detainees in U.S. military custody. Obama initially decided not to appeal a court ruling ordering release of the images. A few weeks later, he reversed course under pressure from military leaders who said circulating the photos could put troops at risk.

Generals David Petraeus and Ray Odierno both filed declarations warning that service members could lose their lives if the abuse photos were released. Odierno, who served as the U.S. commander in Iraq, said release of the photos could destabilize the government there. Petraeus, who headed up the U.S. Central Command at the time, said disclosing the pictures “would negatively affect the ongoing efforts by Pakistan to counter its internal extremist threat.”

However, the photos at issue in 2009 were not classified. The government instead withheld them under a provision for records whose disclosure could jeopardize the life or safety of an individual. A federal appeals court rejected that argument, but Congress stepped in with new legislation allowing the Secretary of Defense to block release of the detainee photos. That measure does not apply to the bin Laden photos.

It’s also possible that Obama could issue a special executive order declaring the bin Laden photos off limits under FOIA. However, Obama would likely take heat for going to extraordinary lengths to undermine FOIA, a transparency mechanism he has repeatedly promoted.

Morrison said the White House could try to declare the images to be presidential records, which could delay release until five years or more after Obama leaves office.

Several other scenarios could lead to the photos’ publication. Someone might leak the images, though in the wake of the massive data breaches involving WikiLeaks that seems less likely.

A congressional committee chairman with subpoena power also could demand the photos, leading to a clash between the legislative and executive branches. One complication is that many House and Senate members sign a pledge not to release classified information.

A poll NBC News commissioned last week found that nearly two-thirds of Americans agreed with Obama’s decision not to release the photos, and only 29 percent favored releasing them.

Kenneth P. Vogel and Scott Wong contributed to this report.