UPDATE: Appeals Court Upholds FOIA Exemption Barring Release of bin Laden Photos

(Photo credit: Wikipedia)

In the 14-page unanimous per curiam ruling this week by a three-member panel of the United States Court of Appeals for the District of Columbia Circuit in Judicial Watch, Inc. v. Department of Defense (Case No. 12-5137), the appellate court upheld a trial court's decision last year that graphic photos involving slain terrorist leader Osama bin Laden were exempt from having to be produced under the Freedom of Information Act [5 U.S.C. sec. 552].

The three appellate judges, Judith Rogers, Merrick Garland and Harry Edwards, said the CIA properly withheld the 52 images of bin Laden concerning his death and burial pursuant to FOIA's Exemption 1, which protects from mandatory disclosure matters "(A) specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." Authorities argued release of the photos could inflame supporters of bin Laden and incite violence, endangering Americans here and abroad.

Conservative watchdog Judicial Watch, Inc. sought the images soon after Seal Team Six raided the Abbottabad, Pakistan, compound in May 2011, killing bin Laden. The group argued no FOIA exemption prevented disclosure of the images and disputed whether the CIA observed proper protocol when it initially classified the photos.

United States District Court for the District of Columbia Judge James Boasberg last year sided with the government (see "TUOL" posts 1/14/13, 4/27/12 & 1/30/12). The appellate panel, while ceding some questions regarding whether the CIA strictly followed procedures to classify the images remained, nevertheless subscribed to the view that were the photos to become public, they could be used by America's enemies both as a recruitment tool and to incite acts of violence. Even less graphic images, the court noted, could reveal the identities of U.S. military operatives putting them and their families at risk.