The Justice Department next week will ask a federal appeals court in Washington to keep secret dozens of images of Osama bin Laden's body taken after he was fatally shot in May 2011 in a special forces raid.
DOJ lawyers, representing the CIA and Defense Department in a public records suit, identified 52 responsive records—post-mortem images that the government describes as "graphic and gruesome"—that are being withheld from the public.
A federal trial judge in Washington ruled for the government in April, saying that "verbal descriptions of the death and burial of Osama bin Laden will have to suffice." The judge, James Boasberg, concluded the government's national security concern over the publication of the images "passes muster."
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit on January 10 will take up whether the images are properly being kept from public review. Judges Merrick Garland and Judith Rogers, sitting with Senior Judge Harry Edwards, will hear the case.
DOJ lawyers said in court papers in the D.C. Circuit that some of the images were taken inside the house in Abbottabad, Pakistan, where bin Laden was shot. Other images, the government said, show the preparation of bin Laden's body for burial at sea. DOJ maintains that all of the images are classified--tethered to U.S. foreign and intelligence activity.
John Bennett, the director of the CIA's National Clandestine Service, said in a declaration in the trial court that the publication of the images "would provide terrorist groups and other entities hostile to the United States with information to create propaganda."
In remarks on the CBS News program "60 Minutes," Obama told reporter Steve Kroft that "it was important for us to make sure that very graphic photos of somebody who was shot in the head are not floating around as an incitement to additional violence." Obama also told Kroft: "We've done DNA sampling and testing. And so there is no doubt that we killed Osama bin Laden."
The conservative group Judicial Watch sued for the images shortly after the raid in which bin Laden was killed. The group said it's not seeking information about equipment or techniques used in the bin Laden raid. Just photos.
The government, according to a Judicial Watch court brief, "would have the court believe that the only images at issue in the case are gruesome, graphic images depicting a bullet wound in bin Laden's head and other wounds of his corpse." At least some of the photos, Judicial Watch lawyers said, "depict more than just a bloody mess."
Judicial Watch said in the appeal that the government has not "demonstrated that the release of the images of a somber, dignified burial at sea reasonably could be expected to cause identifiable or describable exceptionally grave damage to national security."
Judicial Watch's lawyers, including Michael Bekesha, also argue that the post-mortem public disclosure of photographs of Saddam Hussein's sons and of Iraqi insurgent leader Abu Musab al-Zarqawi did not harm the national security.
DOJ said in response that "the release of other post-mortem photographs cannot be compared to the impact of the release of post-mortem images of bin Laden, founder of al-Qaeda."
The bin Laden operation was conducted under the direction of the CIA, DOJ lawyers said, making it "clear that all of the records at issue 'pertain' to 'intelligence activities.'"
Judicial Watch attorneys question the scope of the "foreign activity" and "intelligence activity" argument the government makes. For instance: does the depiction of bin Laden's body, after it has been cleaned and prepared for burial, implicate "intelligence activity?"
The challengers contend the government has yet to indicate how many of the 52 responsive images are graphic in nature and how many show the preparation of bin Laden's body for burial.
Bekesha will argue for Judicial Watch, going up against the Justice Department's Robert Loeb, a lawyer in the Civil Division who specializes in national security litigation.