The high-profile legal battle over the disclosure of Osama bin Laden's death photos is beginning to focus on images of the terrorist leader's burial in the North Arabian Sea. On Wednesday night, the conservative watchdog group Judicial Watch filed court papers in its suit against the Defense Department and the CIA for the release of "all photographs and/or video recordings" taken on the night bin Laden was killed. The 19-page brief challenges the government's rationale for withholding images but gives explicit focus to the images taken on the deck of the USS Carl Vinson before the burial.
"Release of images of bin Laden’s body – particularly those images showing the body cleaned and prepared for burial and being buried at sea – would not reveal any previously unknown covert intelligence missions," the filing reads. The Justice Department, in its brief filed last month, argued that all 52 photographs or videos taken of bin Laden "could be expected to cause exceptionally grave damage to national security." DOJ didn't differentiate between the gory photos taken immediately after bin Laden was shot and the less graphic photos of the burial. It gave a blanket argument that all materials must be withheld because they contain images of Navy SEAL members, advanced military equipment, and secret intelligence methods, and because they could incite violence in the Muslim world.
Last night, Judicial Watch took issue with those arguments as applied to the burial photos:
Conspicuously absent from Defendants’ argument is any proof of how, for example, images of bin Laden’s body as it was being prepared for burial at sea or images of the actual burial at sea itself would reveal information about the identities of the members of the U.S. Navy SEAL team that carried out the raid or the tools and equipment used by the SEAL team during the raid. Similarly, Defendants make no effort to describe how images of bin Laden’s body taken as it was being transported to the location of its burial at sea would reveal site exploitation tactics, techniques, or procedures employed at bin Laden’s compound in Abottabad, Pakistan. Obviously, images taken on board the USS Carl Vinson of the burial at sea are not going to reveal site exploitation tactics, techniques, or procedures used in the Abottabad compound or even facial-recognition techniques or capabilities. Defendants have completely failed to correlate particular records to specific legal theories and therefore have failed to satisfy their burden as a matter of law.
Judicial Watch raised the question of why the top-secret aspects of the images couldn't be blurred out or digitally scrambled. As for Justice's claim that any images could be used to "generate fodder for extremist commentary that could ... trigger violence, attacks, or acts of revenge," the watchdog group cites precedent, noting, "No court appears to have ever held that ... a government agency [can] withhold requested records simply because their release might be used for propaganda purposes or 'inflame tensions' overseas."
Although Judicial Watch did not mentioned it in the filing, the group is making the same case that Republican Sen. James Inhofe made last year after seeing the bin Laden photos at CIA headquarters. "It's much more reasonable to show the public" the burial photos, he told The Atlantic Wire. As to where the case moves next, Judicial Watch President Tom Fitton says the group has asked for a hearing; the court, led by U.S. District Judge James Boasberg, will decide the timing. We've asked a pair of Freedom of Information Act experts to weigh in on the latest filing and will publish their views when available. Below is Judicial Watch's filing: