By James Bowden

President Obama, despite what his CIA Chief expected, has decided not to release the pictures of Osama bin Laden’s corpse. Apparently this decision has upset a not-insignificant number of people.

While the decision to release or not to release the pictures are an executive decision and not a legal decision, Congressman Duncan Hunter (R – California) has an interesting [legal] take on the whole thing: 

               “[The U.S.] should not curb our First Amendment rights because of
                what some crazy people might do.”

Huh? I may not be understanding what Congressman Hunter meant. If he is suggesting that the First Amendment creates some obligation on the part of the U.S. government to release the pictures, I am pretty sure he is incorrect.

The First Amendment creates a negative right in individuals by prohibiting the government from doing two things, specifically (i) making laws with respect to the establishment of religion or restricting the free exercise of such, and (ii) abridging the freedom of speech, the press, peaceable assembly, and petition of the Government for redress of grievances. I’m thinking Congressman Hunter is going for (ii), but there is no application of the First Amendment to the release of the pictures. The First Amendment does not compel any type of speech. So, no, the First Amendment doesn’t have anything to do with it, and Congressman Hunter will have to take Con Law II over again.

But what about a petition filed under the Freedom of Information Act? Could a curious person seek release of the pictures with one of those? Well, that’s probably a dead-end too. The Freedom of Information Act does provide a mechanism to force release of certain documents and records, but also exempts items authorized under criteria established by an Executive order to be kept from the public in the interest of national defense. The scope of this exemption was greatly expanded by President Reagan’s Executive Order 12356 to cover pretty much anything tangentially related to national security; while President Clinton reduced the scope of this order during his presidency, using the Freedom of Information Act to compel release of photographs of the body of a terrorist killed by a highly secretive squad of military professionals during a highly secret mission probably won’t fly. Oh, and if the pictures aren’t considered relevant to national security already, Executive Order 13526 allows the government to classify them as such retroactively.

My guess is eventually the pictures will be revealed, much like the copy of President Obama’s birth certificate. Already, a conspiracy theory is growing – or, more accurately, certain conspiracy theorists are finding a new fixation. What surprises me is that, while the pictures of the deed done are being kept secret, the identity of the deed doers is apparently not. I’d think there would be concern for their safety, but honestly, those guys can probably take pretty good care of themselves.