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

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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.

Appeals Court Weighs Release of bin Laden Death Photos

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A three-judge panel of the United States Court of Appeals for the District of Columbia last week heard arguments from a conservative watchdog group seeking to overturn a federal judge's refusal to order the U.S. Department of Defense to release graphic photos of the slain Al Qaeda leader Osama bin Laden.

In a 29-page Memorandum of Decision last year in Judicial Watch, Inc. v. United States Department of Defense (11-cv-00890), United States District Court for the District of Columbia Judge James Boasberg rejected a Freedom of Information Act [5 U.S.C. sec. 552 et seq.] request by conservative watchdog Judicial Watchdog, Inc. to release 52 images concerning the death and burial of bin Laden on the grounds that the depictions were inflammatory and posed a national security risk, (See "TUOL" posts 4/27/12, 1/30/12.)

The group made its case for reversal of the lower court decision before appellate justices Judith Rogers, Merrick Garland and Senior Judge Harry Edwards, according to a post by the Legal Times blog (www.Legaltimes.typepad.com). Justice Garland, in particular, appeared disinclined to undo Judge Boasberg's ruling, stating during oral argument that deferring to the government's determination that public distribution of the photos of bin Laden, who was killed during a Seal Team Six raid of Pakistan in May 2011, could incite riots among the terrorist leader's supporters seemed a sensible course, in view of the violent demonstrations touched off by editorial cartoon depictions of Islam prophet Mohammed.

Judicial Watch attorneys contend that the gruesome photos were improperly classified pursuant to procedural criteria set forth in a presidential executive order, the Legal Times post noted.

UPDATE: bin Laden Death Photos FOIA-Exempt

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In a 29-page Memorandum of Decision in Judicial Watch, Inc. v. U.S. Department of Defense et al. (Docket No. 11-890-JEB), U.S. District Court for the District of Columbia Judge James Boasberg yesterday granted the government's summary judgment motion barring the public release of video and images of the shooting and burial of Osama bin Laden.

The plaintiff sued the government last May 2, the day after President Obama announced the killing of the al-Qaeda leader, for the release of images associated with his death under the Freedom of Information Act [5 U.S.C. sec. 552] (see "TUOL" post 1/30/12). As reported by Legal Times (www.Legaltimes.typepad.com), the CIA withheld 52 documents in response to the FOIA request, arguing release of the volatile classified bin Laden records posed a national security risk.

Judge Boasberg ruled "the CIA's explanation of the threat to our national security that the release of these records could cause passes muster." Judicial Watch has filed a notice of appeal to the United States District Court of Appeals for the D.C. Circuit.

Govt. Seeks to Keep a Lid on Graphic bin Laden Photos

Image via WikipediaThe U.S. Justice Department wants the United States District Court for the District of Columbia to back its efforts to keep graphic photos depicting the death of Osama bin Laden from seeing the light of day.

In a supporting memorandum to its summary judgment motion to the Court in the case of Judicial Watch, Inc. v. U.S. Department of Defense & Central Intelligence Agency (Case No. 1:11-cv-00890-JEB), the DOJ claims the grisly images must remain classified to prevent the incitement of violence against the U.S. their release might create. According to a post by the Legal Times Blog, the photos would reveal sensitive intelligence data and military methodology.

The plaintiff contends the CIA violated classification procedures and that the government agencies in queston conducted an inadequate search for material requested under the Freedom of Information Act [5 U.S.C. sec. 552 et seq.]. Osama bin Laden, the leader of al-Qaida, was killed in May during a Navy Seal raid in Pakistan last May.

The photos at issue, according to the DOJ, include images of bin Laden's corpse and its burial at sea.