The Obama administrative gave the filmmakers behind Zero Dark Thirty inside access to interview key players in the raid that would end in the death of Osama bin Laden. Does that render the names of those officers public record?
According to a federal trial judge, presiding over a Freedom of Information Act dispute in Washington, the answer is no. U.S. District Judge Rudolph Contreras ruled for the U.S. Justice Department today, saying the full name of a U.S. Navy SEAL and the first names of four CIA officers can remain shielded from the public.
"Although it touches upon matters of considerable public concern, this case presents an exceedingly narrow question: whether a FOIA requester that knows information has been disclosed to a private party is necessarily entitled to that same disclosure," Contreras wrote. The opinion is here.
The plaintiff, Judicial Watch, which filed suit in January 2012, did receive a batch of records from the CIA and the Defense Department concerning government communication with Zero Dark Thirty director Kathryn Bigelow and writer Mark Boal. Judicial Watch lawyers challenged the government's redaction of the names of the SEAL team member and the CIA officers.
Federal public records laws allow the government to withhold certain information, including the names of CIA agents and members of the armed forces, Contreras wrote. Judicial Watch argued that the Obama administration inserted the names of the SEAL member and CIA officers into the public domain when they were shared with Bigelow and Boal.
Contreras said the challengers, however, failed to show that the five names in question are, indeed, in the public domain.
"In short, Judicial Watch does not know—and, outside of this suit, apparently has no way of learning—the names of these individuals," Contreras wrote. "That fact is strong evidence that those names are not in the public domain."
Judicial Watch lawyer Chris Fedeli said the group would consider whether to take the fight to the U.S. Court of Appeals for the D.C. Circuit.
"We are disappointed that the court gave a pass to the Obama administration’s selective secrecy," Fedeli said in an e-mail. "We are currently considering an appeal.”
In court papers, Fedeli wrote: "The government says it wanted to facilitate an accurate movie portrayal of the people involved in the hunt for bin Laden, but it still wishes to keep secret the identities of those individuals who will be accurately portrayed. These desires appear to be mutually exclusive."
Fedeli said "whatever limited privacy interest remains is outweighed by the incremental public interest value in publication."
Contreras said the dispute would've been a "much harder case" had the Zero Dark Thirty filmmakers disclosed the five names that the government is now withholding.
The D.C. Circuit earlier this year ruled against Judicial Watch in another bin Laden-related public records spat. The appeals court said the government could withhold from disclosure post-mortem images of the terror leader.
Judicial Watch recently asked the U.S. Supreme Court to take a look at the appellate court ruling in the bin Laden photos cases.