Wednesday, August 21, 2013

Fight over Osama death photos going to Supremes

Osama bin Laden is seen at an undisclosed location in this television image, 10/07/01. (photo: Al Jazeera/AP)
Osama bin Laden is seen at an undisclosed location in this television image, 10/07/01. (photo: Al Jazeera/AP)

By David Kravets, Wired
20 August 13
he dispute of whether the Central Intelligence Agency must release as many as 52 images of a dead Osama bin Laden is heading to the Supreme Court.

The agency maintains that the pictures are classified, and that releasing them "could trigger violence, attacks, or acts of revenge against the United States." (.pdf) A lower court and a federal appeals court sided with the President Barack Obama administration.

The legal tussle dates to 2011, when Judicial Watch lodged a Freedom of Information Act claim with the government shortly after the president announced the United States had killed the alleged mastermind of the 2001 terror attacks. In response to the FOIA, the CIA said the images were classified, and refused to turn them over.

Judicial Watch sued, and a federal judge and appeals court sided with the agency's classification assertions.

The courts are giving too much deference to the government's claims of classification, Judicial Watch tells the Supreme Court in a filing.

"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," the group maintains in its petition today for the Supreme Court to review the lower court decisions.

The CIA said it possesses images taken inside the compound in Abbottabad, Pakistan, where bin Laden was killed; images taken as bin Laden's body was transported from the Abbottabad compound to the location where he was buried at sea; images depicting the preparation of bin Laden's body for the burial; images of the burial itself; and images taken for purposes of conducting facial recognition analysis of the body in order to confirm that it was bin Laden.

The government said that disclosing the photos, including one showing the bullet wound to bin Laden's head, "plausibly and logically pose a particularly grave threat of inflaming anti-American sentiment and resulting in retaliatory harm."

Judicial Watch claims the government's position is "speculative." (.pdf) The government, however, countered that it does not have to prove "that release of the images will lead to attacks or otherwise harm national security, just that they 'reasonably could be expected to.'"

The government has made similar national-security arguments in a FOIA case brought by the American Civil Liberties Union, which sought photos allegedly depicting CIA acts of torture on overseas detainees. In response to a judge ordering disclosure, Congress adopted legislation in 2009 prohibiting the release of the images and other torture-related documents.

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