Updated 1:30 p.m.
More than 50 images of Osama bin Laden taken after his death in Pakistan in 2011 can remain secret, exempt from public disclosure under public records laws, a federal appeals court in Washington said today.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said 52 post-mortem images were properly classified as Top Secret. The panel upheld a trial judge's ruling that blocked the release of images. The appellate court ruling is here.
The U.S. Justice Department argued in the trial and appellate courts that the disclosure of graphic images of bin Laden—including a gunshot wound to his head—could expose the United States to retaliation. The plaintiff, Judicial Watch, rejected the notion that less gruesome images—for instance, bin Laden's burial at sea—would incite violence.
"As the district court rightly concluded, however, the CIA’s declarations give reason to believe that releasing images of American military personnel burying the founder and leader of al Qaeda could cause exceptionally grave harm," the D.C. Circuit panel said in its per curiam decision.
In the trial litigation, U.S. District Judge James Boasberg, in April 2012, said in his ruling that "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.”
Boasberg said in his opinion: “The court declines plaintiff’s invitation to substitute its own judgment about the national-security risks inherent in releasing these records for that of the executive-branch officials who determined that they should be classified."
The D.C. Circuit heard argument in January. Michael Bekesha of Judicial Watch urged the court not to be a "rubber stamp" for the government. "The government just doesn't specify the harm assessment associated with those records," Bekesha said in court, describing any image depicting a solemn burial at sea. (Click here for a transcript of the hearing.)
The appellate panel—Chief Judge Merrick Garland, Senior Judge Harry Edwards and Judge Judith Rogers—said the government wasn't making predictions of violence based on "just any images."
"Rather, they are predicting the consequences of releasing an extraordinary set of images, ones that depict American military personnel burying the founder and leader of al Qaeda," the judges said.
The government, the appellate court said, is shielding the bin Laden images "to prevent the killing of Americans and violence against American interests."
Judicial Watch president Tom Fitton in a statement said the D.C. Circuit ruling "is craven, absurd, and undermines the rule of law." He said there's no provision in the Freedom of Information Act that allows the government to keep documents secret "because their release might offend our terrorist enemies."
"Americans’ fundamental right to access government information and, frankly, the First Amendment are implicated in this ruling," Fitton said. "The courts need to stop rubberstamping this administration’s improper secrecy."