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The President’s decision to suppress the remaining photographic evidence is disturbing on many levels. First, it is wrong on its merits. The public is used to seeing visual portrayals of dead bodies. They are routinely shown on television and in movies. Anyone who has served as a juror or a courtroom observer in a homicide cases has seen bodies riddled with bullets or afflicted with stab wounds. We are mature enough to endure viewing such visual evidence if we choose to. Nor is there any real risk that these photographs will inflame Muslim or Arab sensibilities, any more than the photographs of Saddam Hussein did.
On a more fundamental level, I have serious doubts whether the President has the legal or constitutional authority to suppress these photographs. As Commander in Chief, he had the authority to order the kill operation, but in a country governed by the First Amendment, the President may lack the authority to decide what is published and what is suppressed. It would establish a terrible precedent for the Commander in Chief to be given the sole authority to determine what the public has the right to see and know, especially when the sole justification for suppression is a matter of judgment regarding the possible offensiveness of the photographs.
In a democracy, doubts must always be resolved in favor of disclosure, particularly in a matter of such great public interest and controversy. Surely Congress has at least equal authority to decide what to do with the photographs. Moreover, the press may have the right to obtain and publish these highly relevant items of evidence as part of its duty to inform the public. Some media will surely challenge the President’s decision, and if they do I hope they win. The great Supreme Court Justice Louis Brandeis taught us nearly a century ago that “sunlight is the best disinfectant.” The remaining evidence of how Bin Laden was killed—the photographs and the results of any forensic tests that may have been hastily performed—should be exposed to the sunlight of publication. Only then will the virus of doubt be disinfected.
Alan Dershowitz is a Harvard Law Professor and author of Trials of Zion.
A shorter version of this article was published in the Wall Street Journal May 5, 2011.
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