WASHINGTON -- Judges on a federal appeals court here gave little indication on Thursday they would second-guess the Obama administration's assertion that the release of 52 images of a postmortem Osama bin Laden would be harmful to national security.
Judicial Watch, a conservative watchdog group that believes keeping the photos secret undermines the Obama administration's transparency claims, argued in a court filing last month that at least some of the 52 images the CIA has of the al Qaeda leader's body after he was killed "depict more than just a bloody mess." The group points out that a CIA official testified that some images show bin Laden's body being prepared for burial while others show the burial itself.
Judicial Watch lawyer Michael Bekesha asserted in the court filing that there was "no apparent nexus" between intelligence activities and photos of bin Laden's burial or preparation for burial. They also argued the government had failed to demonstrate how all of the images, even the non-graphic ones, would reasonably be expected to "cause identifiable or describable exceptionally grave damage to national security," as the government suggested they would.
Judge Merrick Garland, one of three judges on the appeals court panel, said in court on Thursday that Judicial Watch was right to focus on the "least dangerous of the photos," the ones showing bin Laden's body being prepared for burial and dumped into the ocean. But he suggested that it was within the executive branch's rights to claims the images would have a negative impact on national security if it could provide specific examples supporting that contention.
"Why should we not defer to them?" he asked. Garland, who wrongly stated that U.S. Ambassador to Libya Chris Stevens was killed in Benghazi during spontaneous riots sparked by the release of a YouTube video, pointed to other examples of Americans being killed because of the release of information, including an inaccurate 2005 Newsweek report that suggested a Koran was flushed down a toilet at a detention facility in Guantanamo Bay, Cuba.
Justice Department lawyer Robert M. Loeb said that the government contends that even the photos of bin Laden being buried at sea would cause national security issues for the United States. Terrorists, he suggested, could falsely claim that the U.S. didn't follow Islamic law or mistreated bin Laden's body in an effort to spark backlash against the U.S.
While the U.S. was concerned that releasing photos of the bodies of Saddam Hussein's sons could spark riots, officials determined the release was necessary to assure the Iraqi people they were dead, said Loeb. That wasn't the case with the bin Laden photos, he argued.
Judge Garland did push the government a bit on the process it used to classify the photos of bin Laden's body. The government stated that the photos fell under the authority of a classification guideline that sets out procedures under which materials can be kept secret. Employees who lack direct authority to classify information can use the authority of that guide to classify specific categories of information. Garland asked Loeb how specific the guide was and what type of information it covered.
"I believe the guide itself is classified," Loeb answered. That answer didn't seem to satisfy Garland.
"What if the guide just says 'do whatever you want?'" Garland asked. Loeb said the process was necessary because there were so few people in the government with original classification powers.
Calling the classification guidelines "murky," Judicial Watch's Bekesha argued the government had to be more transparent about how the photos were classified to begin with.
Bekesha argued it didn't make any sense for the government to release a detailed description of bin Laden's burial, which it did in response to a Freedom of Information Act request, when it claims photographs of the very same event are classified. He suggested the government's description of the burial process painted "a more complete picture" than even photos of the ceremony could.
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