Government argues against release of bin Laden photos

In an attempt to avoid going to trial over the release of Osama bin Laden's death photos and videos, the Department of Justice filed court documents this week arguing that the materials fit under exemptions listed in the Freedom of Information Act and that they should not be made public.

Among other things, the Department of Justice, on behalf of the CIA and the Department of Defense, believe the materials present a risk to national security.

But the head of the Judicial Watch, the organization which filed the suit for the release of the materials, said the CIA's blanket refusal to release any of the 52 records undermines FOIA.

“There’s always something that can be released," said Judicial Watch President Tom Fitton.

On May 1, bin Laden was killed by U.S. forces during a raid on a compound in Pakistan. The next day, Judicial Watch filed a FOIA request with the DOD seeking “all photographs and/or video recordings of Osama bin Laden taken during and/or after” the operation. The DOD stated that it would be unable to comply with the statutory time limit to respond to the FOIA request, and Judicial Watch sued for the records. The watchdog organization then added the CIA as a defendant in the suit.

According to yesterday’s court filings, the DOD claimed it should now be removed as a party from the suit because it “did not locate any responsive records,” while the CIA found 52 records responsive to the FOIA request, but argued that they can be withheld from disclosure under two FOIA exemptions.

First, the CIA claimed the photos and videos are protected from disclosure under FOIA Exemption 1, which applies to materials authorized under criteria laid out in an Executive Order to be classified as secret for “national defense or foreign policy.” The agency alleged the information withheld was properly classified as top secret because their release could "cause harm to the national security of the United States.” For example, the CIA objected to disclosure of images which depict the bullet wound in bin Laden’s head for fear of “violence, attacks, or acts of revenge against the United States.”

Second, the CIA sought to withhold the materials under FOIA Exemption 3, which covers materials “specifically exempted from disclosure by” other statutes. The CIA relied on two statutes it claimed satisfied Exemption 3, and thereby protected the materials from disclosure: first, the National Security Act, which contains a prohibition on unauthorized disclosure of intelligence methods and sources; and second, the Central Intelligence Agency Act of 1949, which contains a provision permitting the CIA to withhold information relating to intelligence activities and methods tied to the agency’s core functions.

Judicial Watch is scheduled to file its response to the DOJ’s motion by October 24, 2011.