Skeptical-sounding federal judges on Thursday considered whether the public can see pictures of terror mastermind Osama bin Laden, taken after he had been shot dead by U.S. Navy SEALs in a raid on his hideout two years ago.
The 52 pictures, some described as "graphic" and "gruesome" by a top CIA official, highlight a Freedom of Information Act fight that climaxes just as Hollywood's version of bin Laden's death hits movie theaters. But while Hollywood's depiction has attracted both critical acclaim and political heat, and was accomplished with the CIA's help, the real world pictures snapped by elite commandos seem destined to remain secret.
"They're telling us it's a risk . . . that Americans will die if we release these documents," Judge Merrick Garland said Thursday, adding that "when the government tells us this is likely to lead to death, shouldn't we defer to that (even) more than when they say it will result in the release of secret information?"
Judge Judith Rogers, who like Garland was appointed by a Democratic president, further cited "the concern that these images could be used as propaganda." Echoing arguments made by Obama administration officials, Rogers suggested that the propaganda concern is aggravated by the late bin Laden's prominence as al Qaida's leader
"Almost anything associated with him is necessarily of concern," Rogers said.
The explicit fears raised by two members of a three-judge appellate panel during oral argument provided a strong indication, though no guarantee, that the court will side with the Obama administration in keeping the bin Laden photos secret.
Rejecting the Freedom of Information Act bid from a legal advocacy group called Judicial Watch would add to the cloak already draped around other politically sensitive U.S. military and spy actions since the 9/11 terrorist attacks.
The Pentagon long sought to keep secret certain incendiary photos of U.S. soldiers abusing prisoners at the notorious Abu Ghraib prison in Iraq. An estimated 2,000 other prisoner abuse photos taken in Iraq and Afghanistan also have been withheld by the Obama administration. A former top CIA officer ordered the destruction of videotapes showing captured al Qaida leader Abu Zubaydah being interrogated under the simulated drowning technique known as waterboarding.
The photos currently in question – which, theoretically, could include videotapes as well – depict a dead bin Laden at four distinct moments during and after the May 2, 2011, raid. Some pictures show him shortly after he was shot at close range by a member or members of the secret direct action unit known as SEAL Team Six.
"They depict the fatal bullet wound to (bin Laden's) head and other similarly gruesome images of his corpse," John Bennett, director of the CIA's National Clandestine Service, stated in a 22-page declaration filed in 2011.
Other pictures or video show bin Laden's corpse as the commando team flew by helicopter away from his compound in Abbottabad, Pakistan. Some show bin Laden's body being washed and tended by U.S. personnel, and some show his post-midnight burial in the North Arabian Sea by the crew of the USS Carl Vinson.
"The government fails to appreciate that these are various types of images," Judicial Watch attorney Michael Bekesha stated Thursday, noting that some of the photos being sought show what the government itself refers to as a "dignified" burial service.
Bekesha argued, in part, that the Obama administration failed to individually specify how each of the 52 photographs or videotapes pertains to the kind of weapon system, intelligence operation or foreign relations activity that can properly be withheld under the Freedom of Information Act. Justice Department attorneys countered that officials provided sufficient specific detail and that, in any event, other priorities trump the public's right of access to government information.
"Release of these materials could reasonably be expected to harm national security," Justice Department attorney Robert Loeb argued Thursday.
As it happened, the 45-minute oral argument Thursday occurred only about one block away from the Washington museum where the Oscar-nominated Hollywood version of the bin Ladin raid, "Zero Dark Thirty," received its D.C. premiere Tuesday night. Democratic Sen. Dianne Feinstein, chairwoman of the Senate Intelligence Committee, has formally asked the CIA for all information provided to the filmmakers by agency officials.
The help provided by the CIA included detailed information about the floor plan of bin Laden's compound, as well as meeting with the moviemakers, documents obtained by Judicial Watch under a separate FOIA request show.
"I can't tell you how excited we all are . . . about the project," the CIA's then-public affairs director George Little wrote the screenwriter in a November 2011 e-mail. "It's been a real pleasure to help facilitate things."
By Michael Doyle
McClatchy Newspapers