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Legal Fight Over Release of Bin Laden Photos Won't Die

Audiences of “Zero Dark Thirty,” an Oscar-nominated film about the decade-long hunt for Osama bin Laden and the May 2011 operation by U.S. special forces that led to his death at a compound in Abbottabad, Pakistan, witnessed a scene in the movie that depicted soldiers who conducted the raid snapping digital photographs of the terrorist’s body after he had been killed. The real photographs, however, and those taken during a ceremony to bury the al Qaeda leader’s body at sea, remain classified and have not been released by the Obama administration. As a lawsuit challenging this decision makes its way through federal court, gains made against the terrorist organization’s leadership and a shift towards combating threats to the U.S. posed by seemingly non-al Qaeda affiliated militant groups in the nearly two years since bin Laden’s death might militate in favor of reconsidering the administration’s policy and the release of at least some of the photographs.

In the days following the May 1, 2011, announcement of bin Laden’s death, President Obama ordered 52 photographs of the terrorist’s body – some of which have been described as “gruesome” – kept secret. “It’s important for us to make sure that very graphic photos of somebody who was shot in the head are not floating around as an incitement to additional violence or as a propaganda tool,” Obama said at the time in an interview with CBS’s “60 Minutes.” Several news organizations and Judicial Watch Inc., a conservative watchdog group, sought in subsequent days to have the photographs released to the public. Judicial Watch eventually filed suit under the Freedom of Information Act, losing in federal district court last April before appealing. Oral arguments in the case, Judicial Watch Inc. v. Department of Defense, were heard in January before the U.S. Court of Appeals for the District of Columbia.

Michael Bekesha, an attorney for Judicial Watch, argued January 10 before a three-judge panel that the CIA, also a defendant, has not shown how images of bin Laden’s body – specifically those relating to burial – would harm national security or reveal classified information. “The government has already painted a picture,” Bekesha said, referring to detailed descriptions of the burial at sea that were released by the government after it was carried out, “in fact has painted a more complete picture than the photos themselves would disclose.” In court filings, Judicial Watch also cited examples of graphic post-mortem images that were released to the public during the Bush administration, including those of the deceased sons of Saddam Hussein in 2003 and Iraqi insurgent leader Abu Musab al-Zarqawi in 2006, without resulting in harm to national security. Robert Loeb, a Justice Department lawyer arguing on behalf of the CIA and Department of Defense, told the panel “releasing these [photos] would just provide additional ammunition for those who want to distort what happened.” Two of the three judges signaled a reluctance to disagree with the Obama administration’s decision not to release the photographs. “Why should we not defer to [the government]?” Judge Merrick Garland said, also referring to evidence provided by the government that indicated “there’s a risk – not a certainty – that Americans will die if we release the documents.”

But the reality in which the original decision was made not to disclose the photographs might be changing. In addition to the death of bin Laden, al Qaeda has lost several of its other top members over the last two and half years, leading Leon Panetta, the former defense secretary, to characterize the terrorist organization’s leadership as “decimated.” And as U.S. forces prepare to leave Afghanistan next year, terrorism’s threat has evolved, too, to include ascendant militant groups in Africa that are believed by experts to have only indirect ties to al Qaeda. Together, this confluence of factors might be beginning to work in favor of Panetta’s suggestion in May 2011: that “ultimately a photograph would be presented to the public.”


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