Judicial Watch Responds to Obama’s Unprecedented Secrecy

Hiding behind vague references to “national security,” the Obama administration continues to keep secret photos documenting the death of 9/11 mastermind Osama bin Laden at the hands of Navy Seals last May. But Judicial Watch will not give up its pursuit of these records, which we believe will complete the record on one of the military’s greatest achievements.

Last Wednesday, we filed a new court motion in our Freedom of Information Act (FOIA) lawsuit against the Department of Defense (DOD) and Central Intelligence Agency (CIA) 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.” (We filed the lawsuit on May 13, 2011.)

Specifically, we filed a “Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment and in Support of Plaintiff’s Cross-Motion for Summary Judgment.” (In order for a Motion for Summary Judgment to be granted by the court, the moving party must demonstrate that there are “no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.”) Our lawyers also asked for a court hearing on the matter.

We argue to the court that the Obama administration’s motion for summary judgment “should be denied,” because both the CIA and the DOD have “failed to satisfy even the most basic requirements of FOIA law.” Specifically, they have failed to provide sufficient evidence that they conducted an adequate search for responsive records or demonstrated that the records were properly classified pursuant to President Obama’s Executive Order 13526 signed on December 29, 2009, which provided a “uniform system for classifying, safeguarding, and declassifying national security information.”

Conversely, we contend that our “Cross-Motion for Summary Judgment” should be granted because the DOD and CIA “cannot legally justify their claims of exemption” for some of the withheld records, no matter what the outcome of their search. We’re not after 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. We only want records that have not been properly classified, as well as those records for which no military or intelligence secrets would be revealed.

We respectfully remind the court that the American people “have a right to these historical artifacts to capture this moment. To date, the government has failed to provide a legally sufficient justification for why such records must not be released. Therefore, the government must be held accountable. The law requires it.”

Obama’s decision to keep these records secret did not come without a debate within his own administration.

Then-CIA Director Leon Panetta at first said the photos would be released. However, then- Secretary of Defense Robert Gates​ and Secretary of State Hillary Clinton​ reportedly lobbied against the public’s “right to know.” And ultimately Obama agreed. On May 4, 2011, President Obama told CBS News in an interview that he would not release the death photos of Osama bin Laden, who was captured and killed by U.S. Navy Seals, to the public, saying “we don’t need to spike the football” or “gloat.”

We shouldn’t appease our enemies by undermining our nation’s core government accountability law – the Freedom of Information Act. We suspect the administration is playing shell games with the bin Laden death photos and video. President Obama is asking the courts to allow his administration to withhold documents simply because their disclosure may cause controversy. There is simply no legal precedent for this withholding.

Obama’s political calculations are no substitute for the rule of law. The Obama administration has no legal right to withhold this material from the American people, especially now that he is using this military victory in his presidential campaign. The killing of Osama bin Laden is a tremendous historic event. The law simply doesn’t allow President Obama to put the bin Laden photos and video down the memory hole.