Appellate court rules Osama bin Laden death photos can be withheld under FOIA

Photographs and video taken as part of the U.S. military raid that killed Osama bin Laden were properly withheld under the federal Freedom of Information Act because their disclosure could incite violence against American interests abroad, a federal appellate court ruled Tuesday.

The unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia ruled in Judicial Watch, Inc. v. Dep’t of Defense that the CIA properly classified the images and that they were therefore exempt from disclosure under FOIA’s national security exemption.

Intense media and public interest in the raid fueled other attempts to obtain the photographs, though Judicial Watch was the first organization to bring a lawsuit seeking the records' disclosure.

In ruling that the government did not have to disclose the records, the court agreed with CIA and military intelligence officials who argued that releasing images of the former al Qaeda leader could harm national security interests by, among other things, encouraging retaliatory attacks or aiding in terrorist recruitment efforts.

Under FOIA’s national security exemption, government officials must show that there is a plausible belief that the release of particular documents would harm national security or foreign policy interests. In this case, the court agreed with forecasts by intelligence officials that the images, some of which were described as gruesome and graphic, would be particularly provocative to the United States’ enemies.

“[T]his is not a case in which the declarants are making predictions about the consequences of releasing any images,” the court wrote. “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 images, the court said, could be just as disturbing as other news events that have triggered foreign acrimony, such as the publication of Danish cartoons depicting the Prophet Muhammad.

The court also agreed with agency officials that it could withhold other photos that may not be as graphic, such as those that depict the preparation of bin Laden's body for burial, but still could jeopardize national security. In particular, the court ruled that certain photos could be used to identify U.S. military personnel, which could put those individuals and their families in danger.

Even releasing images of bin Laden's face that were used as part of a facial recognition program could tip enemies off about particular CIA intelligence sources or methods, the court ruled.

The ruling upholds a federal trial court’s decision last year to withhold the records from Judicial Watch, which requested the documents shortly after President Obama announced in May 2011 that military forces had killed bin Laden during a raid on a complex in Abbottabad, Pakistan.

In a statement, Judicial Watch President Tom Fitton called the ruling "craven" and said that the court was allowing terrorists to dictate whether people could access government records. He also called on federal courts to seriously challenge classification decisions made by the Executive Branch.

“The courts need to stop rubberstamping this administration’s improper secrecy,” Fitton said. “There is no provision in the Freedom of Information Act that allows documents to be kept secret because their release might offend our terrorist enemies.”

Attorneys for the organization are considering what to do next.

In addition to arguing that intelligence officials concerns about releasing the images were too speculative, Judicial Watch also argued that the CIA failed to follow proper procedures when it initially classified the images.

Although the appellate court agreed that there were unanswered questions regarding whether the classification process, which is governed by Executive Order, was strictly followed, it ultimately ruled in favor of the government.

In ruling that the classification procedures were followed, the court relied on an agency official who subsequently reviewed the documents and determined that they were properly classified.

Fitton also objected to that particular ruling.

“The court seems to acknowledge that the images were improperly classified but gives the Obama administration a pass,” he said.

Related Reporters Committee resources:

· Federal FOIA Appeals Guide: Exemption 1