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Justices grill man who wants Foster photos

Lawyer believes Clinton White House aide was murdered

From Bill Mears
CNN Washington Bureau

Vincent Foster's death in 1993 was ruled a suicide, but conspiracy theories linger.
Vincent Foster's death in 1993 was ruled a suicide, but conspiracy theories linger.

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Vince Foster
Hillary Rodham Clinton
Supreme Court

WASHINGTON (CNN) -- Supreme Court justices sharply grilled a lawyer Wednesday who wants access to 10 police photos taken when the body of Clinton White House lawyer Vince Foster was discovered in 1993.

Several government investigations concluded Foster killed himself, but conspiracy theories persist that he was murdered as a part of a government conspiracy.

In a case with legal, political and personal implications, the court will decide whether the public's right to access graphic evidence related to a closed government investigation outweighs a family's right to privacy.

The Justice Department is fighting a lower-court order to release four of the photos under the Freedom of Information Act.

The law allows the media and individuals to receive unclassified records the government would not normally release. Its "personal privacy" exemption does not specifically cover surviving family members.

"I can think of no higher public interest than what's being argued here," attorney Allan Favish, who wants access to the photos, told the justices. "I think the government can no longer be trusted to filter the raw evidence to the public in this case."

Favish said the government made numerous mistakes in its handling of Foster's death, and he believes the withheld photos will help prove his conspiracy theory.

Several justices challenged Favish questioning why his request trumps the Foster family's desire for privacy.

"There is a long-standing tradition of respect for the dead, for the survivors," said Justice Stephen Breyer. "It is something so deep in human nature."

Justice David Souter said there is a fundamental "right to be left alone." He indicated the Foster family's interest falls under the concept of privacy, and that they should not have to be "assaulted by having these photographs published."

Responsible, not maximum disclosure

Favish said it is up to Congress, not the courts, to give surviving family members specific privacy rights.

The Bush administration supports the Foster family. Government lawyer Patricia Millett told the court the photos represent "highly sensitive, highly personal information, with limited investigative use."

Allan Favish
Allan Favish

Millett argued FOIA and other public records laws require "not maximum disclosure, but responsible disclosure."

She said Favish had not demonstrated "clear evidence" of misconduct in the Foster investigation that would show a "compelling public interest" for releasing the photos.

Doing so would not "directly advance the public knowledge of the government's activities and operations," she said.

Attorney James Hamilton, representing Foster's widow and sister, said releasing the photos would be "an unconscionable invasion of the family's privacy."

"It's been 10 years. It's time to give this family some peace," he said.

Clinton connections

Foster was a longtime friend of Bill and Hillary Clinton and had served barely six months as the president's deputy White House counsel when he was found dead from a gunshot wound to the head in a Washington area park in July 1993.

An extensive investigation by independent counsel Kenneth Starr's office concluded Foster, 48, shot himself because he was suffering from depression and had felt frustrated by the pressures of his job.

Several other investigations concluded the same thing, as did Foster's widow, Lisa.

But some people still believe Foster, a former law partner of Democratic Sen. Hillary Rodham Clinton of New York, was killed in a White House cover-up.

He had been handling several private legal matters for the Clintons at the time of his suicide. A file on the Clintons' controversial Whitewater real estate investment was later found in Foster's White House office.

A lower court ordered the release of a handful of photographs of the area where Foster died, but the order is on hold pending the outcome of the Supreme Court appeal. The court deemed the other pictures too graphic for release.

Earnhardt support

Favish, of Santa Clarita, California, claims 10 of the unreleased photos could offer clues about Foster's death, and contends the pictures are not gruesome since they do not show Foster's face or wounds.

His legal claim is supported by a number of media ethics organizations, who worry the government may use privacy concerns to block public access to a wealth of relevant declassified information.

Favish once worked for the conservative Judicial Watch, which filed a number of lawsuits against the Clinton administration. He denies a political motive.

The federal government wants the court to offer legal clarification on exactly when the press and private individuals can make use of the Freedom of Information Act.

Among those filing a brief supporting the government is the widow of race car legend Dale Earnhardt.

Teresa Earnhardt has been fighting attempts by some media organizations to allow public release of autopsy photos taken after the racer's horrific death at the Daytona 500 in February 2001.

The Supreme Court has never dealt with the issue of whether surviving family members can exercise privacy rights in such cases. (More background)

But other federal courts blocked release of files on Martin Luther King Jr.'s private life, and of audiotapes of the space shuttle Challenger crew moments before it exploded in 1986.

Lower courts have split on the Favish case. A ruling is expected by June.

The case is Office of Independent Counsel v. Favish (02-0954).

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