JW Asks Supreme Court to Review Lawsuit against CIA and DOD to Force Release of bin Laden Death Images

Petition argues that case could determine whether courts provide ‘meaningful review’ or ‘blind deference’ to Executive branch decisions

(Washington, DC) – Judicial Watch announced that it has filed a certiorari petition with the Supreme Court of the United States to review a 2013 Appeals Court ruling against the Judicial Watch lawsuit (Judicial Watch v. U.S. Dept. of Defense and Central Intelligence Agency (No. 12-5137)). The suit seeks to force the Department of Defense (DOD) and the Central Intelligence Agency (CIA) to release more than 50 photographs and video recordings of Osama bin Laden taken during and after the U.S. raid upon the terrorist leader’s compound in Pakistan on May 1, 2011.

In its cert petition Judicial Watch argues that “the instant case is the poster child of the almost blind deference being provided to the Executive Branch” by the courts in recent years in cases involving the withholding of classified materials. The petition asks the Supreme Court to “reverse this disturbing reversal,” and mandate the courts to “conduct meaningful review” or the Freedom of Information Act (FOIA) will “continue as less of a disclosure than a withholding statute.”

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On May 4, 2011, Judicial Watch filed a FOIA request with the DOD seeking “all photographs and/or video recordings of Osama (Usama) bin Laden taken during and/or after the U.S. military operation in Pakistan on or about May 1, 2011.” An identical request had been filed on May 3, 2011, with the CIA. When neither the DOD nor the CIA complied with the FOIA requests within the 20 business days as required by law, Judicial Watch, in June 2011, filed its FOIA lawsuits against both agencies.

On April 26, 2012, U.S. District Court Judge James Boasberg ruled that the images could remain secret while conceding: “Indeed, it makes sense that the more significant an event is to our nation – and the end of bin Laden’s reign of terror certainly ranks high – the more need the public has for full disclosure.” On May 21, 2013, the United States Court of Appeals for the District of Columbia affirmed the District Court decision while conceding that the documents may not have been properly classified.

In a statement issued at the time of the appellate decision, Judicial Watch President Tom Fitton pledged to appeal the ruling, saying, “The court’s interpretation would allow terrorists to dictate our laws. Americans’ fundamental right to access government information and, frankly, the First Amendment are implicated in this ruling. There is no provision of the Freedom of Information Act that allows documents to be kept secret because their release might offend our terrorist enemies.

In the cert petition filed today with the Supreme Court, Judicial Watch states the “Question Presented” as:

Whether 5 U.S.C. § 552(b)(1), [known as ‘Exemption 1’] which allows the Executive Branch to withhold information “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and [is] in fact properly classified pursuant to Executive order,” limits courts to provide almost blind deference to the Executive Branch’s classification determinations or whether it mandates that courts conduct meaningful review of those determinations.

Judicial Watch bases its “Reasons for Granting the Petition” on five key points:

I. The FOIA Is a Disclosure Statute – As this Court has recently reiterated, the FOIA was enacted to overhaul an earlier public records provision that had become more of “a withholding statute than a disclosure statute.” Milner, 131 S. Ct.at 1262 (quoting Mink, 410 U.S. at 79). For the FOIA to escape this same fate, the nine exemptions contained therein must be interpreted narrowly.

II. Exemption 1 Indisputably Requires All Withheld Material to Be Classified in Accordance with the Procedural Criteria As Well As Its Substantive Terms – Congress carefully crafted Exemption 1 to allow only the withholding of material that is “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and [is] in fact properly classified pursuant to Executive order ” … The DC Circuit failed to follow this well-established, indisputable standard.

III. The D.C. Circuit Blindly Approved the CIA’s Withholding of the Requested Images Even Though the Records Were Not Properly Classified – [T]he two courts collectively concluded that the CIA provided no evidence to demonstrate that the images were properly classified.

IV. The D.C. Circuit Blindly Approved the CIA’s Claim That the Release of the Images Reasonably Could Be Expected to Cause Exceptionally Grave Damage to National Security – [T]he court seems to suggest that the result of such violence and attacks [possibly triggered by the release of the photos and videos] is equivalent to exceptionally grave damage to national security. Prior to this ruling, no court had ever held that speculative, unspecific violence harms the national defense of the United States.

V. The Courts’ Almost Blind Deference Eviscerates the FOIA as a Disclosure Statute – By providing almost blind deference to the Executive Branch, it is foreseeable that the Executive Branch will abuse its seemingly unreviewable authority.

“Make no mistake about it,” said Judicial Watch President Tom Fitton, “this is a landmark case that could determine whether President Obama, with the blind deference of the judicial branch, can unilaterally rewrite the Freedom of Information Act at the expense of the American people’s right to know what its government is up to. The idea that our government would put the sensibilities of terrorists above the rule of law ought to concern every American.”