Judicial Watch, a conservative watchdog group, is seeking the images through the Freedom of Information Act. The Defense Department said it didn’t turn up anything responsive to the FOIA, while the CIA found 52 responsive records. The intelligence agency withheld all of them, citing exemptions for classified materials and information specifically exempted by other laws.
Judicial Watch lawyer Michael Bekesha told the appeals court panel in arguments Thursday that the government didn’t provide a specific enough basis for denying the request. But Judge Merrick Garland said the government cited specific concerns that the images could be used by the al-Qaida terrorist network for propaganda and to incite anti-American sentiment.
“Why aren’t those specific?” asked Garland, an appointee of Democratic President Bill Clinton.
Bekesha said that the government didn’t provide the justification for each of the 52 records, and how each one of them would cause harm. He suggested that graphic photos of bin Laden’s corpse should be distinguished from somber images of bin Laden’s burial at sea, for example.
Judith W. Rogers, also a Clinton appointee, said this wasn’t a typical case, because bin Laden was the al-Qaida founder.
“What about concerns that images could be used for propaganda?” she asked.
Bekesha replied that the judges are capable of making those kinds of determinations and that the images sought are not like records of secret conversations or secret U.S. security locations overseas.
“Isn’t this worse?” Garland asked, because the government says the release could lead to deaths.
The court, Bekesha, said should “not just rubber-stamp” the government’s findings of what might cause harm.
The third judge on the panel, Harry T. Edwards, did not ask any questions. Edwards was appointed by Democratic President Jimmy Carter.
John Bennett, director of the CIA’s National Clandestine Service, said in a declaration filed with the court that many of the photos and video recordings are “quite graphic, as they depict the fatal bullet wound to and other similarly gruesome images of his corpse.” Images were taken of bin Laden’s body at the Abbottabad compound, where he was killed by a Navy SEAL team, and during his burial at sea from the USS Carl Vinson, Bennett said.
Justice Department lawyer Robert Loeb said that Bennett’s declaration explained why all of the records would harm national security. Bennett’s declaration, for example, reported that al-Qaida attacked the U.S. assertions that bin Laden had received an appropriate Islamic burial at sea. Bennett argued that releasing images of the burial, as well as of bin Laden that showed the “gruesome nature of his fatal injuries,” could enhance the group’s efforts “to use these events to further attack” the security interests of the U.S. He said such images could also be interpreted as a deliberate attempt by the U.S. to humiliate the late al-Qaida leader.
Judicial Watch is appealing a district court judge’s ruling last year denying the group’s lawsuit over the FOIA.
“The court declines plaintiff’s invitation to substitute its own judgment about the national-security risks inherent in releasing these records for that of the executive-branch officials who determined that they should be classified,” Judge James E. Boasberg wrote in that decision.
Separately, The Associated Press asked for files about the bin Laden raid in more than 20 separate FOIA requests, mostly submitted the day after bin Laden’s death in 2011. The Pentagon told the AP in March 2012 that it could not locate any photographs or video taken during the raid or showing bin Laden’s body. It also said it could not find any images of bin Laden on the Navy aircraft carrier where his body was taken after he was killed. The AP is appealing the Defense Department’s decision administratively.
The CIA, which ran the bin Laden raid and has special legal authority to keep information from ever being made public, still has not responded to AP’s May 2011 request for photographs and video of bin Laden’s body as well as other records about the mission.
Associated Press writer Richard Lardner contributed to this story.