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No expedited review of FOIA request for bin Laden photos

CIA Director and Secretary of Defense designate Leon Panetta (AFP)

The Defense Department is refusing to do a speedy review of a Freedom of Information Act request for graphic photos of Osama bin Laden’s corpse, setting the stage for a protracted battle over access to the images.

In a letter to The Associated Press, the department said the 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. As a result, it is not clear when or if the photos will be provided.

The AP received the letter Friday, 11 days after it requested the photos and other material stemming from the May 2 raid by a team of Navy SEALs on bin Laden’s compound in Pakistan.

President Barack Obama has promised to make his administration the most transparent in American history. The push by the AP and other news organizations to make the bin Laden photos public could put that commitment to a key test.

In 2010, the Defense Department granted expedited processing of FOIA requests nearly 40 percent of time, a far better rate than agencies such as the departments of State and Homeland Security.

Whether the photos should be made public has been a constant source of debate since the stunning announcement of bin Laden’s death. Obama decided last week not to release the death photos of bin Laden so as not to “spike the football” and possibly inflame anti-American sentiment overseas.

U.S. government officials have described the photos as gruesome. Bin Laden was killed by two bullets, with the fatal shot going through his head.

Dan Metcalfe, executive director of the Collaboration on Government Secrecy at American University’s Washington College of Law, said it would be difficult for the government to label death photos of bin Laden as classified unless there were a person or a piece of equipment in the photo that needed to be kept secret.

“It’s hard to see how such a photo in and of itself could properly be classified, and with that decision ultimately sustained in court, on the basis of national security harm,” said Metcalfe, former head of the Justice Department’s Office of Information and Privacy.

Members of the House and Senate Intelligence and Armed Services committees have been allowed to see the death photos in a secure room at CIA headquarters in Langley, Va. Lawmakers are not permitted to take copies of the photos with them.

Sen. James Inhofe, R-Okla., a member of the Senate Armed Services Committee, viewed the photos Wednesday and said one of them showed brain matter coming out of bin Laden’s eye socket. Others, however, were taken as the body was being prepared for burial at sea and are less jarring, said Inhofe, who favors releasing at least a few photos to dispel any claims bin Laden wasn’t killed.

The disclosure that the photos were at CIA headquarters could mean the spy agency and not the Pentagon controls the records. The AP has also filed a Freedom of Information request with the CIA that seeks expedited processing. The CIA has not said how it will handle that request.

The Defense Department’s decision not to expedite the AP’s request for the photos isn’t a rejection but puts the request on a much slower track. Under the open records law, federal agencies have 20 days to respond to FOIA requests, a deadline that is rarely met.

In a related development, Judicial Watch, a public interest group, filed a FOIA lawsuit against the Defense Department on Friday after the department said it would not meet the 20-day deadline for meeting the group’s own request for the photos.

“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,” Judicial Watch President Tom Fitton said.

Copyright © 2011 The Associated Press