Obama Lawyers to Judge: Don't Watch bin Laden Film

The Osama bin Laden raid film “Zero Dark Thirty” opens in limited release later this month. It has received favorable “buzz” and reportedly focuses on characters that seem based upon the very individuals at the CIA and Pentagon to whom the Obama administration gave access to filmmakers Kathryn Bigelow and Mark Boal. So why are Obama administration lawyers desperately trying to dissuade a federal judge from watching the film?

Why indeed.

Judicial Watch is suing the Obama administration to gain access to records detailing the cooperation between the Obama CIA, the Department of Defense (DOD) and the filmmakers regarding their bin Laden epic. Records we’ve already uncovered demonstrate that the Obama administration gave Bigelow and Boal unprecedented access to information about the raid and those involved.

Obama administration officials also admitted that if the information released to the filmmakers were to be publicly known, it would cause an “unnecessary security and counterintelligence risk.”

The government continues to stonewall the release of records that could shed more light on this “partnership,” and our investigation continues.

In our efforts to gain access to records related to “Zero Dark Thirty,” Judicial Watch made an argument in a recent court brief that we believe should be common sense. In determining what information should be released, the court might actually want to review the film at the center of its lawsuit:

In light of the fact that much of the government’s argument hinges on the assertion that the individuals in question will have a continued privacy interest in their names after this film is released, a viewing of “Zero Dark Thirty” after its theatrical release on December 19, 2012 may ultimately be … illuminating.

Obama lawyers, however, are trying to dissuade the judge from actually watching the film. According to an Obama administration court filing last week: “…the CIA and DOD disagree with [Judicial Watch’s] implication that the Court needs to view the movie to decide this case … The CIA and DOD therefore would oppose any additional attempts by plaintiff to extend the briefing of this case until the movie’s release.”

I should point out that limited release for the film is set for Dec. 19. Judicial Watch’s final brief is due on December 17. Any delay required for the court to review the film would be negligible. By the way, we first asked for these documents in August of last year, and had to sue in January of this year – months of delay.  So the Obama administration’s new found concern about “delay” is laughable.

And the court might not need to wait until the public release of the film. Zero Dark Thirty has already been publicly screened, having recently won the New York Critics Circle Award for Best Picture.

There can really only be one reason why Obama administration lawyers would try to keep the judge from seeing the film – they believe it will weaken their case.

Here are a couple of other tidbits from the government’s response brief worth noting. The Department of Justice (DOJ) argues that “It is pure conjecture on [Judicial Watch’s] part that characters in the movie will in fact be based on these individuals [interviewed], and in such a way that reveals their identities.” But DOJ lawyers never suggest Judicial Watch’s conjecture is incorrect. Where is the evidence to the contrary typical for a motion seeking the dismissal of a lawsuit?

Similarly, the DOJ argues that JW lacks “proof” that the CIA agents signed a release waiving defamation claims for the use of their likeness and characters in a film. They do not say the CIA operatives failed to sign it. They simply argue that JW doesn’t have proof, which, I might point out, is very difficult to obtain so long as the Obama administration continues stonewalling the release of records.

JW previously obtained records from the DOD and the CIA regarding meetings and communications between government agencies and the filmmakers. According to the records, the Obama administration sought to have “high visibility” into bin Laden related projects, and granted Boal and Bigelow unusual access to agency information in preparation for their film. (The disclosures made to the filmmakers are now part of an investigation by the DOD Inspector General.)

They got their wish.

In return for this visibility, the DOD and the CIA shared the names of five CIA and military operatives involved in the bin Laden operation with the filmmakers, but have continued to withhold this information. Judicial Watch has identified the precise emails containing the information it wishes to obtain, and in sworn declarations Obama administration officials conceded that this information was provided to Bigelow and Boal.

According to sworn testimony from CIA Information Review Officer Martha Lutz, releasing of this type of information could provide an “unnecessary security and counterintelligence risk:”

Nonetheless, I can represent to the Court that the absolute protection for officers’ identities that Congress provided in the CIA Act is extremely important to the functioning of the Agency and the safety and security of its employees. This is true even for the identities of officers who are not undercover, and it is also true with respect to the first names of undercover officers. While such identifying information may not be classified in isolation, the widespread public release of this information creates an unnecessary security and counterintelligence risk for the Agency and its officers.

The key question is this: Why did the Obama administration share allegedly sensitive information with filmmakers that, if known, could harm national security? The Obama administration can’t have it both ways. Either the information was too sensitive to share with the filmmakers, and the Obama administration was in error, or the information is not sensitive and should therefore be released. 

Certainly the movie itself could provide some hints about what the Obama administration leaked to filmmakers. In my view, the fact that the Obama administration doesn’t want the court to consider the movie is a good indication that the court should do exactly the opposite.