Photos of Osama bin Laden’s corpse and burial at sea, ordered to be kept secret by President Barack Obama, should be made public, a self-described conservative watchdog group told a federal appeals court.
Judicial Watch Inc., in arguments today before a three- judge panel of the U.S. Court of Appeals in Washington, said the Central Intelligence Agency has failed to demonstrate how images of bin Laden’s body -- specifically those showing it cleaned and prepared for burial -- would harm national security or reveal classified intelligence strategies.
“The focus is not on those images that depict a somber and dignified burial at sea -- those images are not discussed,” Michael Bekesha, a lawyer for the Washington-based legal- activist group, told the judges, referring to the government’s explanation of its secrecy.
Questions by two of the judges during today’s 40-minute argument signaled that the government properly determined that such images -- even one of bin Laden shrouded in white garments in an empty room -- might endanger the lives of U.S. soldiers and civilians and increase the likelihood of violence against allies.
U.S. Circuit Judge Merrick Garland read from declarations filed by American military commanders referring to prior violence and deaths due to an incorrect report by Newsweek that military personnel at Guantanamo Bay had desecrated the Koran and publication of a Danish cartoon of the Prophet Muhammad.
“Why should we not defer to them?” Garland said. “Both are telling us there’s a risk -- not a certainty -- that Americans will die if we release the documents.”
The judges haven’t said they have seen the pictures.
In an interview in May 2011 with the CBS program “60 Minutes,” Obama said release of the “very graphic” photos of the al-Qaeda leader’s corpse might be used by extremists as propaganda to incite violence.
“We don’t trot out this stuff as trophies,” the president said, according to a CBS transcript.
The lawsuit, filed under the Freedom of Information Act, involves pictures of bin Laden after he was killed during a raid by U.S. special operations forces on his compound in Abbottabad, Pakistan, in May 2011.
The government argues that the photos and any video are exempt from disclosure because they reveal secret intelligence operations and foreign activity and would pose a risk to national security.
A lower-court judge sided with the government and dismissed Judicial Watch’s lawsuit in April.
“In these cases, it’s very frequent that intelligence agencies do get the benefit of the doubt when they talk about harm to national security or revealing sources and methods,” Mark Caramanica, freedom of information director for the Reporters Committee for Freedom of the Press, said in an interview. The agencies are granted wide latitude “without putting forth real proof,” he said.
Judicial Watch argued in court papers that during the Bush administration there were instances when graphic post-mortem pictures of war targets were made public without resulting in harm to national security.
The group pointed in court filings to photographs of the deceased sons of Saddam Hussein released by the Defense Department in 2003. A “gruesome, post-mortem” photo of Abu Musab al-Zarqawi, the Iraqi insurgent leader, was displayed in a gold frame by the Army during a press conference in 2006, the group said.
Judicial Watch questions why written descriptions of the bin Laden’s burial have been unclassified while the images remain under wraps. The group cited an e-mail released to the Associated Press from a rear admiral who was present during the burial describing the event.
Some of the images being sought depict “a somber burial in which the body of the mastermind of the most deadly terrorist attack of the U.S. was treated with the utmost dignity and respect,” Bekesha said in court papers.
The case is Judicial Watch Inc. v. Department of Defense, 12-5137, U.S. Court of Appeals for the District of Columbia (Washington).
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