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Appeals court won't release Osama Bin Laden photos

A federal appeals court has ruled that the Central Intelligence Agency is under no legal obligation to release photos of Osama bin Laden taken after he was killed by U.S. commandoes at a hideout in Pakistan in 2011.

The unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said the photos were properly classified "TOP SECRET" and therefore exempt from the Freedom of Information Act.

"The CIA’s declarations [filed in the case] give reason to believe that releasing images of American military personnel burying the founder and leader of al Qaeda could cause exceptionally grave harm," the appeals court wrote in a opinion filed Tuesday and (posted here). "Together, these declarations support their declarants’ determinations that releasing any of the images, including the burial images, could reasonably be expected to trigger violence and attacks 'against United States interests, personnel, and citizens worldwide.'"

The judges—Harry Edwards, Merrick Garland and Judith Rogers—suggested the photos at issue were so "extraordinary" that the predictions of harm seemed plausible. However, the judges passed up endorsing a suggestion from the government that the images could be classified simply because releasing them would buttress Al Qaeda propaganda.

Many news organizations requested the photos, but the only lawsuit and appeal seeking to force their release was filed by the conservative group Judicial Watch.

The appeals court opinion does express some concern about a practice known as "derivative classification," where information is classified based on a guide rather than by a senior official with classification authority. The court warned that without more information on the guide, it might not be able to say whether the material was actually classified properly in a technical sense. However, the court said that issue was moot in the case of the Bin Laden photos since a senior official later reviewed them and confirmed their classification as "TOP SECRET."

Garland and Rogers are Clinton appointees. Edwards is a Carter appointee. A report on oral argument in the case is here.