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.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: defense department, foia, freedom of information, homeland security
Reader Comments
Subscribe: RSS
View by: Time | Thread
...oh, damn, I missed one.
[ link to this | view in chronology ]
What is so difficult to understand about that?
[ link to this | view in chronology ]
Re:
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.
[ link to this | view in chronology ]
Re: Re:
What Tim is doing is trying to find an issue where none really exists. Tempest in a teapot stuff.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
Actually, that's not true. That's not how the FOIA works.
Why would you make that up, other than that you don't understand the process?
[ link to this | view in chronology ]
Re: Re: Re: Re:
Perhaps you could explain why you think that current military operations should be subject to FOIA requests?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
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.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
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?
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
2) The government ignores it.
3) Go back to #1.
Pretty simple actually...
/sarc
[ link to this | view in chronology ]
Re: Re: Re: Re:
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?
[ link to this | view in chronology ]
Re: Re: Re: Re:
Why would you make that up, other than that you don't understand the process?
Can you explain to us the process, and then explain how that process is being subverted here?
[ link to this | view in chronology ]
Re: Re: Re:
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.
[ link to this | view in chronology ]
Re:
---------------------------------------------
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.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
What if...? And who?
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?
[ link to this | view in chronology ]
Re: What if...? And who?
[ link to this | view in chronology ]
Re: What if...? And who?
[ link to this | view in chronology ]
Re: Re: What if...? And who?
[ link to this | view in chronology ]
Re: Re: Re: What if...? And who?
[ link to this | view in chronology ]
Re: What if...? And who?
[ link to this | view in chronology ]
Re: Re: What if...? And who?
[ link to this | view in chronology ]
Re: Re: Re: What if...? And who?
[ link to this | view in chronology ]
Re: Re: Re: What if...? And who?
[ link to this | view in chronology ]
Re: What if...? And who?
No, the guilt would be on those who committed the act.
[ link to this | view in chronology ]
Re: Re: What if...? And who?
Isn't that the same warped logic as it's the victims fault for being raped because they dressed provocatively?
[ link to this | view in chronology ]
Re: Re: Re: What if...? And who?
For some reason I feel like someone's mother saying "2 wrongs don't make a right."
[ link to this | view in chronology ]
Re: Re: Re: Re: What if...? And who?
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.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: What if...? And who?
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.
[ link to this | view in chronology ]
Re: What if...? And who?
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.
[ link to this | view in chronology ]
Re: Re: What if...? And who?
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.
[ link to this | view in chronology ]
Re: Re: Re: What if...? And who?
[ link to this | view in chronology ]
Re: Re: Re: Re: What if...? And who?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: What if...? And who?
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.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: What if...? And who?
[ link to this | view in chronology ]
Re: What if...? And who?
But maybe I'm just a radical extremist.
[ link to this | view in chronology ]
Re: Re: What if...? And who?
[ link to this | view in chronology ]
Re: Re: Re: What if...? And who?
[ link to this | view in chronology ]
Re: What if...? And who?
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!!!!
[ link to this | view in chronology ]
Just a simple answer
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.
[ link to this | view in chronology ]
Re: Just a simple answer
Umm.
Yeah.
[ link to this | view in chronology ]
Re: Just a simple answer
Because the picture can not be produced because he isn't dead.
*Removing said cap*
I have no idea.
[ link to this | view in chronology ]
Re: Just a simple answer
Because the picture can not be produced because he isn't dead.
*Removing said cap*
I have no idea.
[ link to this | view in chronology ]
Let sleeping dogs lie
Just let it go.
[ link to this | view in chronology ]
Re: Let sleeping dogs lie
[ link to this | view in chronology ]
Re: Let sleeping dogs lie
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".
[ link to this | view in chronology ]
Re: Let sleeping dogs lie
[ link to this | view in chronology ]
Separating my curiosity from logic, I just can't find a good enough reason to incite more anger.
[ link to this | view in chronology ]
He was expecting to claim the still unpaid reward.
The News people told him the reward has been withdrawn, but he intends to search anyway and has about a Million in capitol to do so. We may get to see more than a picture :)
[ link to this | view in chronology ]
Missed the Point?
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....
[ link to this | view in chronology ]
Re: Missed the Point?
[ link to this | view in chronology ]
Re: Re: Missed the Point?
"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:"
http://www.politico.com/static/PPM217_110602_foiahearing.html
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
The actual reason why...
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Seriously?
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.
[ link to this | view in chronology ]
Re: Seriously?
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?
[ link to this | view in chronology ]
Re: Re: Seriously?
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.
[ link to this | view in chronology ]
Re: Re: Re: Seriously?
[ link to this | view in chronology ]
Re: Seriously?
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.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Only one logical explaination
They cannot release a photo of OBL dead because he is not dead.
They probably want us to think he is dead so that they can waterborad him over and over at some place like gitmo or ad max...
[ link to this | view in chronology ]
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).
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
Thank you AC for the valuable insight.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Actually...
Could someone point to the regulation that indicates a non-partisan party makes the response?
[ link to this | view in chronology ]
Seems like people have forgotten a small detail
[ link to this | view in chronology ]