That was quick.
Exactly two weeks after the capture and death of Osama bin Laden, the first Freedom of Information Act lawsuit was filed today seeking photographs and video from the encounter, which took place in Pakistan.
Judicial Watch filed the complaint today at the U.S. District Court for the District of Columbia. The organization had made the initial FOIA request of the Defense Department May 2, and on May 9 the department responded, stating that "at this time, we are unable to make a release determination on your request within the 20-day statutory time period" required by the law. The department also said the law allows for a 10-day extension, but that too won't give enough time to "arrive at a final release determination."
The Defense Department letter, signed by DoD's chief FOI officer Paul Jacobsmeyer, mentioned that prior to receiving Judicial Watch's request, it had fielded "multiple FOIA requests from several representatives of the news media for these records." He also cited the "unusual circumstances" that are affecting the department's response to the request, namely: "the volume of requests received concerning the death of Osama bin Laden; the need to coordinate searches for records with multiple offices; and the requirement to coordinate the review of records with more than one office or organization having a substantial interest in either the determination or the subject matter of the records." He added, "I apologize for the delay in responding to your request, but due to the complexity of the request this office is unable to estimate when the processing of this request will be completed."
Jacobsmeyer informed Judicial Watch of the administrative appeals process, but Judicial Watch said the communication from the government was enough to trigger a lawsuit rather than an administrative appeal. The organization claims the government is "unlawfully withholding records" that should be released under FOIA, leaving the plaintiff "irreparably harmed," according to the complaint.
The Judicial Watch complaint also states that the Defense Department "has possession, custody, and control of records to which plaintiff seeks access." Judicial Watch president Tom Fitton said he inferred that the department possesses the photos from the language of the response letter by Jacobsmeyer.
Who actually has control over the photos has been a major question ever since the episode. It is one of the factors that experts have debated in determining whether the FOIA compels release of the photos. For example, FOIA does not cover documents held by certain offices within the White House.
Whatever the legalities, in a "60 Minutes" interview last week President Barack Obama said he did not want the photos released, fearing they would be seen as "additional incitement to violence or as a propaganda tool."
In a statement announcing the suit, Fitton said, "The American people have a right to know, by law, basic information about the killing of Osama bin Laden. Incredibly, the Obama administration told us that it has no plans to comply with the Freedom of Information law, so we must now go to court. President Obama’s not wanting to ‘spike the football’ is not a lawful basis for withholding government documents. This historic lawsuit should remind the Obama administration that it is not above the law.”
Judicial Watch describes itself as "a conservative, non-partisan educational foundation [that] promotes transparency, accountability and integrity in government, politics and the law."