During oral arguments before the U.S. Court of Appeals for the D.C. Circuit, at least two members of a three-judge panel seemed to be convinced by the government’s case.
“Why should we not defer to them?” Judge Merrick B. Garland asked, referring to the government. Intelligence officials, he said, “are telling us there is a risk that Americans and others will die if we release the documents.”
Michael Bekesha, a lawyer for the group Judicial Watch, argued that the government should release a subset of 52 images related to bin Laden’s burial in the Arabian Sea in May 2011.
The government, he said in court documents, has not specifically shown how images of a “somber, dignified burial at sea could be expected to cause identifiable or describable exceptionally grave damage to national security.”
But Judge Judith W. Rogers pointed to the uniqueness of bin Laden — the founder of al-Qaeda and mastermind of the Sept. 11, 2001, attacks — and noted the government’s argument that “almost anything associated with him is necessarily of concern.”
Separately, Garland cited two examples the government provided of violent anti-American protests prompted by an erroneous news report about the desecration of the Koran by military personnel and the reprinting of a Danish cartoon of the prophet Muhammad.
Harry T. Edwards, the third judge on the panel, did not question the attorneys.
After bin Laden was killed, the Obama administration released a detailed description of his preparation for Islamic burial on the deck of the USS Carl Vinson and his burial at sea. President Obama said in an interview with CBS’s “60 Minutes,” however, that the administration would not release the photos because of concerns that doing so would incite violence and provide ammunition for anti-American propaganda.
Bekesha, who filed the lawsuit under the Freedom of Information Act, questioned what “secrets” would be revealed given that the government has described in detail the raid that killed bin Laden and the burial. Bekesha said he was uncertain about the specific makeup of the images, which he said may be photos and video clips.
The government argued in court documents that the images should be kept secret in the interest of national security and that the photos are exempt from the disclosure law because they pertain to “foreign activities.” Courts have generally deferred to the executive branch when it comes to classified information.
David Sobel, who directs the FOIA Litigation for Accountable Government Project for the Electronic Frontier Foundation, said he is concerned that a decision favorable to the government could set a troubling precedent for other cases involving the dissemination of information about the U.S. government.
The government’s rationale for keeping the photos secret, he said, could be extended to “really anything that casts a negative light on the U.S. in the eyes of some population somewhere in the world.”
“Most people might agree that in this case, with these particular images, yes, there could be that impact,” he said. The problem, he added, is if such a decision is applied more broadly to other information the American public has an interest in learning about.
Many of the judges’ questions Thursday focused not on the substance of the images, but on the procedure the government used to mark the photos as classified. The judges pressed the government about the timing of the classification.
Robert M. Loeb, a Justice Department lawyer, said the documents were properly classified and individually reviewed by John D. Bennett, director of the CIA’s National Clandestine Service.
Even if the court were to find fault with how the documents were handled, Garland suggested that the court probably would order the case back to the lower court rather than make the images public.