SCOTUS Refuses to Take up Challenge to Obama Withholding bin Laden Images

SCOTUS Refuses to Take up Challenge to Obama Withholding bin Laden Images

Unfortunately, the U.S. Supreme Court refused to take up Judicial Watch’s challenge to the Obama administration’s keeping the post-mortem images of Osama bin Laden and his burial at sea secret.

This is a decision that not only undermines the public’s right to access non-sensitive government records detailing the capture and killing of Osama bin Laden, but it also undermines the entire open records process. With the seeming endorsement of the judiciary, Barack Obama has rewritten 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 the “most transparent administration in history” would put the sensibilities of terrorists above the rule of law ought to concern every American. What other laws that terrorists don’t like might be subject to unilateral change by Obama? Obama’s appeasement places our fundamental rights and accountable government at risk.  

Judicial Watch had filed a certiorari petition with the Supreme Court of the United States to review a 2013 Appeals Court ruling against the Judicial Watch lawsuit. The suit sought 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.

Judicial Watch’s petition had asked the Supreme Court to “reverse this disturbing reversal,” and mandate the courts to “conduct meaningful review” and warned that the Freedom of Information Act (FOIA) will continue as less of a disclosure than a “withholding statute.”

Unfortunately, this request was denied. Here is what is most troubling to me: Whenever the government does not want to the public to know something about its activities, it often hides behind national security. Sometimes, on rare occasions, national security might indeed be compromised by the release of records. But not in this case.

There was no top secret process at issue in our request. As Judicial Watch noted in its court filings, Judicial Watch “does not seek the production of any photographs or video recordings that have been properly classified or would actually cause harm to the national security by revealing intelligence methods or the identity of U.S. personnel or classified technology. [Judicial Watch] solely seeks those records that have not been properly classified as well as those records for which no military or intelligence secrets would be revealed.”

We simply wanted the government to publicly release the post-mortem photos to help close the public record on an event that was already well established–the killing of bin Laden.

The president said he wouldn’t release these photos because they could be seen as “spiking the football” and inciting terrorists to attack our country. Leaving aside for the moment the fact there is no “spiking the football” provision in FOIA law, let me point out that this president had no issue with making the bin Laden killing a center piece of his 2012 election campaign.

It didn’t stop his administration from seeking “high visibility” (as JW uncovered) in bin Laden-related projects, including filmmaker Kathryn Bigelow’s Zero Dark Thirty. If anything could be seen as “spiking the football,” it would be government “sponsorship” of an Academy Award-winning movie documenting in painstaking detail the capture and killing of Osama bin Laden–a film, mind you, that earned more than $135 million at the box office, including $35 million in foreign markets!

“Spiking the football,” was clearly never the problem. The problem was that this administration only wanted its version of events known to the public.

The release of classified information was clearly never the problem either, as the Obama administration (most especially former CIA Director Leon Panetta) had no issue providing the filmmakers behind Zero Dark Thirty access to classified details about the raid–details that actually could have caused harm to members of the military and their families. (The Obama administration admitted as much in documents uncovered by JW.)

Now this administration’s selective release of government documents has been endorsed by the courts and ignored by the highest court in the land.

The battle over these photos may be over for now (though I am convinced they will be released eventually–you can only suppress history for so long). However, the battle to ensure the integrity of FOIA law and the principle of government transparency continues with every FOIA lawsuit we file. There have been many already, and there will be many more to come.

If you would like to join us in the effort to keep government honest and clean, download our free 2013 “Transparency 101:  Freedom of Information Act and Opens Records Handbook,” so you can learn for yourself how to work within the open records process and the courts to shake loose government records.

Judicial Watch President Tom Fitton is author of the NY Times best-seller “The Corruption Chronicles” and executive producer of the documentary “District of Corruption.”


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