05/01/2012 05:51 pm ET Updated Jul 01, 2012

No Medium, No Message, No Closure?

We now have the latest "final word" on whether photos of Osama bin Laden's corpse will ever be released to the public: a resounding no. So ruled U.S. District Judge James E. Boasberg in Judicial Watch, Inc. v. U.S. Department of Defense, et al., upholding the CIA's decision to withhold these images from a Freedom of Information request. Thus, to quote Judge Boasberg, "verbal descriptions of the death and burial of Osama bin Laden will have to suffice, for this Court will not order the release of anything more."

This means that survivors and victims' families of the most devastating terrorist attack in U.S. history will not be permitted to view photographs of a deceased Osama bin Laden, a man so loathed that procuring his death preoccupied American imaginations and intelligence efforts for 10 years. Yet, a decade earlier in 2001, survivors and victims' families of the most devastating domestic terrorist attack in U.S. history were permitted to witness the execution of Timothy McVeigh, the Oklahoma City Bombing's chief architect and trigger man. Sept. 11, 2001 has largely eclipsed April 19, 1995; the shades of its victims loom a little larger in our national consciousness, and its survivors and family members cast a longer shadow. But death is
death, and healing is healing, and if watching McVeigh die or hearing that others had witnessed his death was therapeutic for folks in Oklahoma City, then the same might be true for folks in New York as well.

Then, as now, other parties sought access to footage of a terrorist's death; media organizations attempted to broadcast McVeigh's execution over the Internet on a "pay-per-view" basis. U.S. District Judge John Tinder quashed their request in Entertainment Network v. Lapin, citing the need to preserve execution solemnity, maintain prison order and security, and protect the privacy rights of McVeigh, survivors and family members, and prison officials.

But Judge Tinder's opinion ruled out only one type of digital broadcast -- one for the public-at-large. On the actual day of McVeigh's execution, most witnesses actually viewed it via encrypted closed-circuit broadcast. Acceding to a request made by bombing survivors and victims' families, Attorney General John Ashcroft allowed 232 survivors and family members to watch McVeigh die, in addition to 10 permitted to witness "live" in a room adjacent to the execution chamber. In justifying this decision, Ashcroft cited his desire to help McVeigh's victims get closure and the Department of Justice's responsibility to "make special provisions ... in accordance with our responsibilities to carry out justice." These efforts were largely successful; survivors and family members experienced palpable relief as a result of McVeigh's execution.

Contrasting these disparate outcomes, one wonders whether the federal government still has a responsibility to assist "unique" survivors and victims' families in seeking closure -- a journey back to balance. If anything, the case for allowing 9/11 survivors and family members is just as strong or stronger today than it was for allowing those victimized by the Oklahoma City bombing to witness McVeigh's execution in 2001. And if the federal government had the capacity to successfully arrange a secure broadcast of the execution of McVeigh in 2001, then surely it could arrange for a secure viewing of a select number of still images of bin Laden's corpse in 2012.

Perhaps the problem is that the Oklahoma City Bombing was framed as an act of mass murder, while 9/11 has been branded an act of war. Perhaps it is that an image of a terrorist killed by lethal injection in an execution chamber is less gory than a picture of one killed by a shot to the head during a covert special forces raid. But we see carnage in the news every day, whether in images broadcast from Syria or from our street corners. And permitting survivors and family members to view bin Laden's death images does not raise the same national security concerns as displaying them to the American public.

As it stands, we will never have the opportunity to determine whether the photographic medium can provide any therapeutic message for 9/11 survivors and family members. And a silent medium is its own message.

Dr. Jody Lyneé Madeira is an Associate Professor of Law at Indiana University Maurer School of Law in Bloomington, Indiana and author of the forthcoming book Killing McVeigh: The Death Penalty and the Myth of Closure (NYU Press, 2012).