On May 2, 2011, President Obama came to the podium and announced:
Good evening. Tonight, I can report to the American people and to the world that the United States has conducted an operation that killed Osama bin Laden, the leader of Al Qaeda, and a terrorist who’s responsible for the murder of thousands of innocent men, women and children.
And the next question almost everyone had was, will there be photographs to corroborate that statement?
Not an unheard of question; after all, when Saddam Hussein was sentenced to hang, we not only saw death photos, but videotape of his actual hanging was made available. When his heinous sons, Uday and Qusay, were captured in a house in Mosul in July of 2003, the government released photos as a way to confirm their deaths to the Iraqi people (warning: graphic photos). However, upon Osama bin Laden’s death, the Obama administration announced that no photos of his death or burial would be released; the intent stated was to avoid inciting violence against Americans overseas or compromise clandestine systems and techniques used by the CIA and the military.
But the group Judicial Watch, a conservative watchdog group (whose motto is, “Because no one is above the law!”), filed a Freedom of Information Act lawsuit last month:
Tom Fitton, president of Judicial Watch, accused the Obama administration of making a “political decision” to keep the bin Laden imagery secret. “We shouldn’t throw out our transparency laws because complying with them might offend terrorists,” Fitton said in a statement. “The historical record of Osama bin Laden’s death should be released to the American people as the law requires.” [Source: Huffington Post]
Up till now, the Obama administration has repeatedly refused requests for release of Osama bin Laden death materials (there are purportedly at least 52 images). The Associated Press also filed Freedom of Information Act requests (the day after bin Laden’s death), not only for the death photos, but also more expansive information related to contingency plans during the raid, DNA reports, etc. When the administration refused to “quickly consider” the request, AP filed an appeal.
However, in documents to the court in response to the requests for sensitive materials, John Bennett, the CIA director of National Clandestine Service asserted the following: Huffington Post:
“The public release of the responsive records would provide terrorist groups and other entities hostile to the United States with information to create propaganda which, in turn, could be used to recruit, raise funds, inflame tensions, or rally support for causes and actions that reasonably could be expected to result in exceptionally grave damage to both the national defense and foreign relations of the United States,” Bennett wrote.
Navy Adm. William McRaven, the top officer at U.S. Special Operations Command, said in a separate declaration that releasing the imagery could put the special operations team that carried out the assault on bin Laden’s compound at risk by making them “more readily identifiable in the future.” Before his current assignment, McRaven led the Joint Special Operations Command, the organization in charge of the military specialized counterterrorism units.
On Thursday, January 10, 2013, the federal appeals court considered the case. Judicial Watch has made a specific assertion that the non-graphic images could hardly be considered on a par with the more gruesome photos and argued that they could see no harm in releasing at least those. Judge Merrick Garland agreed that this was the correct place to put their focus, but maintained the Obama administration’s right to withhold them.
The judges…said government officials had provided information about previous incidents that led to violence in the Arab world or provided terrorists with fuel for propaganda. Among the examples were the treatment of prisoners at Abu Ghraib prison in Iraq and reports that Americans had desecrated Qurans.
“Why should we not defer to that?” asked Judge Merrick Garland, who was appointed to the court by President Bill Clinton. “We are told there is a risk … that Americans could die if the pictures are released.” [Source: CNN]
Robert M. Loeb, an attorney for the Justice Department, argued further, stating that even the “less graphic” photos could create national security issues:
Terrorists, he suggested, could falsely claim that the U.S. didn’t follow Islamic law or mistreated bin Laden’s body in an effort to spark backlash against the U.S.
While the U.S. was concerned that releasing photos of the bodies of Saddam Hussein’s sons could spark riots, officials determined the release was necessary to assure the Iraqi people they were dead, said Loeb. That wasn’t the case with the bin Laden photos, he argued. [Source: Huffington Post]
To the issue of how and why the bin Laden materials were deemed “classified,” Judicial Watch’s attorney, Michael Bekesha, argued that the entire process is “murky.” Judge Garland also pricked the point. He asked Justice attorney, Loeb, if it was possible that the choice to classify these documents could be arbitrary. Loeb explained that the classification process has strict guidelines, with standards used by employees who lack authority to make decisions about classification unilaterally.
Garland asked Loeb how specific the guide was and what type of information it covered.
“I believe the guide itself is classified,” Loeb answered. That answer didn’t seem to satisfy Garland.
“What if the guide just says ‘do whatever you want?'” Garland asked. Loeb said the process was necessary because there were so few people in the government with original classification powers. [Source: Huffington Post]
At the end of the day (literally), while the court did not made a final decision, there was no indication they would act to countermand the President’s orders. As for when a ruling could be expected:
The judges, with the U.S. Court of Appeals in Washington, did not say how soon they may rule. [Source: CNN]
Which means the many who feel it is imperative that the information be released and revealed will have to wait another day. Or more. Given the recent terrorist activity at the American embassy in Benghazi which resulted in the deaths of four Americans, including Ambassador Chris Stevens, sensitivity is required. And given that this event was originally thought to be a reaction to controversial materials incendiary to the Muslim world, it is not difficult to understand the caution with which both the Administration, and the court, are proceeding.