A legal battle over the release of photos and videos during and after the U.S. raid on Osama bin Laden's compound in 2011 is now at the U.S. Supreme Court.
In Judicial Watch v. U.S. Department of Defense and Central Intelligence Agency, the conservative foundation, Judicial Watch, ask the justices to reverse the "blind deference" given by courts to the executive branch's withholding of classified materials under the Freedom of Information Act (FOIA) and to mandate "meaningful review."
"Make no mistake about it," said Judicial Watch President Tom Fitton in a statement, "this is a landmark case that could determine whether President Obama, with the blind deference of the judicial branch, can unilaterally rewrite the Freedom of Information Act at the expense of the American people's right to know what its government is up to. The idea that our government would put the sensibilities of terrorists above the rule of law ought to concern every American."
The petition for review, which Judicial Watch filed on Monday, focuses on what is known as Exemption 1 in the FOIA. The exemption allows the Executive Branch to withhold information "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and [is] in fact properly classified pursuant to Executive order."
Shortly after the May 2011 announcement by President Barack Obama that the United States had conducted an operation resulting in bin Laden's death, Judicial Watch filed FOIA requests to the Department of Defense and the Central Intelligence Agency in which it sought copies of all photographs and video recordings of bin Laden taken during or after that operation. When the agencies informed Judicial Watch that they would not be able to process the request within the law's response period, the organization filed suit.
The Defense department subsequently reported it had found nothing responsive to the FOIA request. The CIA did locate 52 images which it said fell into five general categories: (1) images taken inside the compound in Abbottabad, Pakistan, where bin Laden was killed; (2) images taken as bin Laden’s body was transported from the Abbottabad compound to the location where he was buried at sea; (3) images depicting the preparation of bin Laden’s body for the burial; (4) images of the burial itself; and (5) images taken for purposes of conducting facial recognition analysis of the body in order to confirm that it was bin Laden.
However, the CIA withheld all 52 records, citing FOIA Exemptions 1 and 3-- exemptions for classified materials and for information specifically exempted by other statutes. In April 2012, U.S. District Judge James Boasberg granted summary judgment to the CIA after finding that the records were properly withheld under Exemption 1.
On May 21, 2013, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously affirmed the district court. In a per curiam (unsigned) opinion, the panel, which included Chief Judge Merrick Garland, rejected Judicial Watch's argument that release of the most innocuous of the images—those depicting preparation of bin Laden's body for burial and the burial itself, was unlikely to cause any damage to national security.
"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," wrote the panel. "Finally, it is undisputed that the government is withholding the images not to shield wrongdoing or avoid embarrassment, but rather to prevent the killing of Americans and violence against American interests."
Judicial Watch, represented by its counsel, Michael Bekesha, contends in its high court petition that for nearly 30 years, federal courts—contrary to Congress' express wishes—have given "essentially meaningless review" of Executive Branch decisions to withhold information under the FOIA.
The two lower courts, it argues, sided with the CIA even while expressing concerns that the records had not been classified properly, a requirement in Exemption 1. And, those courts seemed to equate the CIA's claims that release of the images might trigger violence against U.S. interests and citizens to exceptionally grave damages to national security.
"Prior to this ruling, no court had ever held that speculative, unspecific violence harms the national defense of the United States," wrote Bekesha. "Because the withholding of images of a somber, dignified burial had previously never been upheld, the D.C. Circuit should have conducted a more meaningful review of the CIA's justifications for its alleged classification. For example, it can be argued that although any attack on U.S. interests or citizens is regrettable and unfortunate, not every such event causes exceptionally grave damage to the nation's national defense of foreign relations. In fact, the most recent, despicable attack on American interests – the September 11-12, 2012 killings of four U.S. government personnel, including the U.S. Ambassador to Libya – does not align within the typical scenario of harm to national security."
The government has 30 days after the petition is docketed to respond unless the court grants an extension of time.