Judge denies request for bin Laden death photos and video

A federal judge in Washington, D.C. has denied a request to order the U.S. government to publicly release photographs and video under the federal Freedom of Information Act of the U.S. military raid that killed Osama bin Laden last May.

U.S. District Judge James Boasberg accepted the CIA’s assertion that release of any photos and video of the body of Osama bin Laden – former leader al-Qaeda – would pose a major threat to national security, and that he would not overturn the agency’s decision to classify the records.

“A picture may be worth a thousand words. And perhaps moving pictures bear an even higher value,” Boasberg wrote, in his opinion issued Thursday. “Yet, in this case, 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.”

Within days of the raid, Judicial Watch, Inc., a conservative watchdog group, sent FOIA requests to the Department of Defense and the CIA for all photos and video taken of bin Laden during and/or after the May 1, 2011 military raid. The existence of photographs of bin Laden’s body was confirmed by Press Secretary Jay Carney and Assistant to the President for Homeland Security and Counterterrorism John Brennan the day after the raid.

A Defense Department search found no records responsive to Judicial Watch’s request. However, the CIA found 52 records, which it withheld under FOIA Exemptions 1 and 3. Exemption 1 prevents disclosure of classified documents that could possibly cause damage to national security. Exemption 3 prevents disclosure of information that is protected by other federal laws.

Judicial Watch filed suit after both agencies indicated they would not be able to respond to the requests under the FOIA disclosure deadline. The group claimed that the Defense Department did not conduct an adequate search for the records and that the CIA did not demonstrate all of the documents were exempt from disclosure under FOIA.

The court ruled that mere speculation that responsive photos may be in the possession of the Defense Department did not mean the department did not conduct an adequate search.

“It should be emphasized that this was not a request for some broadly defined class of documents the existence and whereabouts of which the agency was likely unaware and that might be maintained in any number of records systems,” Boasberg wrote. “If DOD has possession of these records, the relevant individuals are well aware of that fact.”

FOIA requires agencies to conduct a "reasonably calculated search" in "good faith," but agencies are not required to search every file, the court noted quoting prior case law.

In regard to the CIA, the court found that all the records at issue were fell within the types of records that may be classified under Executive Order 13526, because they pertain to "foreign activities of the United States." In addition, the court ruled that though the CIA’s arguments regarding a risk of harm to national security interests need only be “plausible” and “logical” in order to withhold documents under the national security exemption.

The court accepted the CIA's claim that release of the photos could inflame anti-U.S. sentiment in foreign countries, putting lives at risk. However, the judge wrote that the court was aware of the public interest surrounding the documents in question.

“The Court is also mindful that many members of the public would likely desire to see images of this seminal event,” Boasberg wrote. “Indeed, it makes sense that the more significant an event is to our nation – and the end of Bin Laden’s reign of terror certainly ranks high – the more need the public has for full disclosure. Yet, it is not this Court’s decision to make in the first instance.”

President Barack Obama announced May 1, 2011 that a U.S. military operation had killed bin Laden and taken custody of his body in Pakistan. Several days later, it was announced that Obama had decided not to release photos and video of bin Laden’s body and burial to the public.

“This is the most successful military operation, certainly of the Obama administration — Joe Biden said of the past 500 years — and what we’re looking for is the basic historic record,” said Tom Fitton, president of Judicial Watch. “This is basic information we’re asking for. This supposedly happened and we want to see it. These are artifacts for the history books.”

There was no lawful basis to withhold the records and that the withholding was “a dangerous precedent for government transparency,” Fitton added.

“It could put all sorts of things off limits. It puts other laws at risk simply because we don’t want to upset the terrorists,” he said. “We think it’s terribly wrong and we are appealing. The holding is without precedent.”

Judicial Watch has filed a notice of appeal.

Related Reporters Committee resources:

· Federal Open Government Guide: Exemptions to disclosure under FOIA

· News: Government argues against release of bin Laden photos

· News: White House urges TV networks to stop airing Bin Laden tapes