When Judicial Watch began the battle to obtain photos and videos of the raid that led to Osama bin Laden’s capture, killing, and burial, we promised not stop until we exhausted every single legal remedy available to us. Last stop: the United States Supreme Court.
Last week JW filed a certiorari petition with the Supreme Court of the United States to review a 2013 appellate ruling preventing the American people from accessing these images. The petition is intended 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 on the terrorist leader’s compound in Pakistan on May 1, 2011.
Why are these records so vital and why is it so important that JW emerge victorious in this effort? If the lower court ruling is allowed to stand, terrorists would be allowed to dictate our laws. After all, it was Barack Obama himself who gave the justification for keeping this information secret, claiming it would be unwise to “spike the football” over bin Laden’s killing, as it might be offensive to al Qaeda and its allies.
But there is no provision of the Freedom of Information Act (FOIA) that allows documents to be kept secret because their release might offend our terrorist enemies. And we certainly do not want to set that precedent. Therefore, at stake in our battle to obtain these images is the fundamental right of the American people to access government information.
As JW has stated in court, we are not simply after any and all information relevant to national security. We just want to complete the public record on one of the most significant accomplishments in United States military history.
But the Obama administration says the American people have no right to this information. Thus far the courts have acquiesced, which raises significant separation of powers issues addressed by JW in its cert. petition.
This case, we argue, “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 materials labeled as classified. The petition asks that the Supreme Court mandate the lower courts to “conduct meaningful review” of Executive Branch decisions to withhold classified materials, or the Freedom of Information Act (FOIA) will “continue as less of a disclosure than a withholding statute.”
With a Supreme Court cert. petition, the petitioning party must always indicate the “Question Presented” to the Court. Here is ours:
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.
And here are our “Reasons for Granting the Petition,” which centers 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 unchecked authority.
One thing that strikes me as I review our attorneys’ legal arguments is that this FOIA case is yet another example of the president’s illicit assertion of executive power. In this case, President Obama personally orchestrated the withholding of documents simply because he didn’t want to be seen as “spiking the football.” Time and time again, this president thinks that his personal whims have the force of law. We hope the Supreme Court teaches him otherwise.
This case also demonstrates why we have to be persistent in fighting Obama’s secrecy; it is always a long ball game. On May 4, 2011, JW 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 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.
This is a landmark case that concerns much more than 50 photographs and videos. It 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.