Under the U.S. Supreme Court: In search of bin Laden death images

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Writer  |  Aug. 25, 2013 at 3:30 AM
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WASHINGTON, Aug. 25 (UPI) -- A Washington legal organization says it wants to break through the "blind deference" of the federal courts to the executive branch when it comes to withholding classified material, and has embarked on what may be a quixotic attempt to gain access to photographs showing the death and burial of Osama bin Laden.

The organization, Judicial Watch, has seen its quest slapped down by a federal judge and the powerful federal appeals court in Washington. Now it's asking the U.S. Supreme Court to step in.

Bin Laden would become infamous, yet for most of the 1990s few Americans had heard of him. After opposing the Soviets in Afghanistan, the wealthy Saudi citizen was involved in a number of regional terror attacks, but it was not until February 1998 that he issued a fatwa, or religious edict, calling on Muslims to kill U.S. and Canadian citizens.

Nevertheless, when reporters at the time queried the FBI about his activities they were told that upper bureau officials were sick of hearing his name. That changed when bin Laden took responsibility for the August 1998 bombings of two U.S. embassies in East Africa,

By the time bin Laden took responsibility for the Sept. 11, 2001, terror attacks on New York's World Trade Center and the Pentagon -- the worst terror attacks ever on U.S. soil -- he and his organization al-Qaida were well known to the U.S. public.

An insurgency led by the U.S. military and the CIA toppled bin Laden's Taliban protectors in Afghanistan. Bin Laden fled and disappeared.

But on May 1, 2011, President Barack Obama announced that the United States had conducted an operation on a compound in Abbottabad, Pakistan, killing bin Laden. The terrorist leader reportedly tried to use his youngest wife as a shield before a member of SEAL Team 6 put three rounds into his head.

Judicial Watch, a right-leaning legal gadfly that frequently files suit against whatever administration is in power, immediately filed Freedom of Information Act requests with the Defense Department and the CIA for all photographs and videos taken during or after the operation.

When those organizations said they were unable to process the requests under the FOIA time limit, Judicial Watch filed suit.

The Pentagon eventually said it did not posses the items. The CIA said it had 52 images that fell into five general categories: 1) images taken inside the compound in Abbottabad where bin Laden was killed, 2) images taken as bin Laden's body was transported from the compound to 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."

But the CIA withheld the images, saying the photographs or videos were exempt from FOIA disclosure under the act.

The CIA asked for summary judgment -- a ruling without a hearing -- and a federal judge agreed, concluding the CIA had "sustained its burden of showing that the images of bin Laden satisfied the substantive and procedural criteria for classification."

Judicial Watch appealed to the U.S. Court of Appeals for the D.C. Circuit, often called the second most powerful court in the United States.

The appeals court agreed with the federal judge.

In a "per curiam," or unsigned, opinion, the appeals court said, "Judicial Watch filed a Freedom of Information Act request seeking disclosure by the Central Intelligence Agency of 52 post-mortem images of Osama bin Laden. The agency refused on the ground that the images were classified Top Secret. Judicial Watch sued, and the district court granted summary judgment for the agency. We affirm because the images were properly classified and hence are exempt from disclosure under the Act."

The appeals court said the government "supported its motion [for summary judgment] with three declarations that are relevant on appeal."

The first was a "lengthy declaration" from John Bennett, director of the CIA's National Clandestine Service, saying that all 52 responsive records contained 'post-mortem images of [bin Laden's] body.'"

"Many, he said, were 'quite graphic' and 'gruesome' pictures displaying the bullet wound that killed bin Laden, some showed bin Laden's face in a way intended to enable facial recognition analysis and some documented the transportation and burial of bin Laden's corpse," the appeals court said.

Bennett said he had reviewed each image and concluded that all of them were properly classified Top Secret "because, if disclosed, they could be expected to lead to retaliatory attacks against Americans and aid the production of anti-American propaganda."

Bennett compared the bin Laden images to post-mortem photographs of al-Qaida leader Abu Musab al-Zarqawi, "which had been portrayed in Pakistan as an 'ad for jihad,' and to images of abuse at Abu Ghraib prison," which had been used very effectively' by al-Qaida to recruit supporters and raise funds.

The clandestine director also said "a subset of the records, including those used to conduct facial recognition analysis, could enable foreign intelligence services to infer certain CIA intelligence techniques."

At the Pentagon, Lt. Gen. Robert Neller, director of operations on the Joint Staff at the Pentagon, affirmed that he, too, had personally reviewed the images.

Like Bennett, Neller "believed that their release would "pose a clear and grave risk of inciting violence and riots against U.S.and coalition forces,' and 'expose innocent Afghan and American civilians to harm,'" the appeals court said.

Neller pointed to "fatal riots that had followed both the publication of a Danish cartoon of the Prophet Muhammad and an erroneous report that American soldiers had desecrated the Koran," the appeals court said, and "Neller believed that a similar violent reaction could be expected to follow the release of the bin Laden images."

Navy SEALS and CIA operatives carried out the Abbottabad operation.

Adm. William McRaven, head of the U.S. Special Operations Command, submitted a third, partially classified declaration.

McRaven said "disclosure of some of the images would enable identification of the special operations unit that participated in the Abbottabad operation, thereby exposing its members and their families to great risk of harm. ... He explained that other images would reveal classified methods and tactics used in U.S. special operations."

As a result, McRaven said, he believed release "could reasonably be expected to cause harm to the national security."

Judicial Watch had argued that the CIA's declarations "failed to demonstrate either substantive or procedural compliance with the criteria for classification."

The CIA responded by filing a fourth declaration,

Written by Elizabeth Culver, the information review officer for the CIA's National Clandestine Service, it said the images initially had been "'derivatively classified' by a CIA official in accordance with the criteria set out in a classification guide written by the CIA's director of information management" and marked Top Secret.

Since then, "out of an abundance of caution," other markings had been added to the records, including the identity of the derivative classifier, citations to the classification guide and the reasons for classification, and the applicable declassification instructions, the appeals court said.

On the basis of these declarations, the federal judge concluded that the CIA had sustained its burden of showing that the images of bin Laden satisfied the substantive and procedural criteria for classification, giving a "plausible" and "logical"account of the harm to national security that might result from the release of the images.

The appeals court said the judge "rightly concluded ... the CIA's declarations give reason to believe that releasing images of American military personnel burying the founder and leader of al-Qaida could cause exceptionally grave harm."

"Judicial Watch protests that the government's declarations show nothing more than that release of the images may cause 'some individuals who do not like the United States' to commit violence overseas, and that the courts should not succumb to this kind of blackmail," the appeals court said. "First, it is important to remember that this case does not involve a First Amendment challenge to an effort by the government to suppress images in the hands of private parties, a challenge that would come out quite differently. ... Rather, it is a statutory challenge, in which the sole question is whether the CIA has properly invoked FOIA exemption 1 to authorize withholding images in its own possession."

Second, "this is not a case in which the declarants are making predictions about the consequences of releasing just any images. 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-Qaida. Third, the declarants support those predictions not with generalized claims, but with specific, reasonably analogous examples. 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."

The appeals court said, "Our role is to ensure that those predictions are 'logical' or 'plausible.' ... We agree with the district court [judge] that the CIA's declarations in this case cross that threshold."

Last week, Judicial Watch asked the U.S. Supreme Court for review.

In its petition, the group asked the justices to decide whether federal law "limits courts to provide almost blind deference to the executive branch's classification determinations or whether it mandates that courts conduct meaningful review of those determinations."

The group said in the petition: "At issue is the role of the courts in reviewing determinations of the executive branch to withhold material under exemption 1 of the FOIA." Judicial Watch said it "does not dispute that the executive branch may properly withhold material under exemption 1," nor does it "dispute that the courts should afford some deference to the executive branch."

The petition said the group wanted the Supreme Court to weigh "whether the courts should conduct meaningful review of classification decisions of the executive branch."

In 1973, exemption 1 of the act allowed a government agency to withhold material that was "specifically required by executive order to be kept secret in the interest of the national defense or foreign policy," but in that same year the Supreme Court ruled in EPA vs. Mink that courts "should not review the substantive propriety of the classification or go behind an agency affidavit stating that the requested documents had been duly classified," the petition said.

"In other words, exemption 1, as written, permitted -- if not required -- courts to provide effectively blind deference to the executive branch," the petition said.

The following year, Congress overrode a presidential veto and amended FOIA for the "'express purpose of changing' the blind deference standard set forth in Mink," the petition said.

"FOIA exemption 1 now allows a government agency to withhold material only if it is '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.'"

Because it recognized executive departments have unique insights into what may be adverse consequences if classified material is disclosed, Congress expects the federal court "will accord substantial weight to any agency's affidavit. ... In other words, Congress sought to replace the blind deference standard with a standard that provides substantial weight to the executive banch," the petition said, "but also affords the courts with an opportunity to conduct meaningful review.

"Yet, in the succeeding 30 years, contrary to the express wishes of Congress, courts have reverted back to their old ways of conducting essentially meaningless review of executive branch determinations."

The petition said, "The instant case is the poster child of the almost blind deference being provided to the executive branch. First, both courts confirmed and expressed concern that the records were not properly classified. Second, both the District Court [judge] and D.C. Circuit [appellate court] failed to conduct meaningful review of the CIA's claims that all 52 images conformed to [an executive order's] substantive criteria for classification. Nevertheless, in the end, both courts concluded that, regardless of any failure on the part of the CIA to fully satisfy its burdens under exemption 1, the evidence submitted was 'good enough' for all 52 images to be withheld. ...

"By ignoring the explicit intentions of Congress and providing almost blind deference to the CIA to withhold material that may not have been properly classified nor specifically authorized to be classified, the D.C. Circuit has once again reverted back to meaningless review by the courts, causing the FOIA to become more of a withholding statute than a disclosure statute."

"Make no mistake about it. 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," Judicial Watch President Tom Fitton said in a statement. "The idea that our government would put the sensibilities of terrorists above the rule of law ought to concern every American."

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