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Media Alerts - Judicial Watch v. Central Intelligence Agency
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May 21, 2013
  Judicial Watch v. Central Intelligence Agency
Headline: D.C. Circuit upholds "Top Secret" Status of bin Laden post-mortem photos

Area of Law: FOIA

Issue(s) Presented: Whether the Freedom of Information Act entitles Judicial Watch to obtain 52 post-mortem photographs of Osama bin Laden despite the CIA's claim that release of the photographs would be harmful to national security.

Brief Summary: Shortly after President Obama announced that American personnel had killed al Qaeda leader Osama bin Laden in Abbottabad, Pakistan, Appellant Judicial Watch filed Freedom of Information Act (FOIA) requests with the Defense Department and the Central Intelligence Agency (CIA) seeking any photographs or videos depicting bin Laden "during and/or after the U.S. military operation." The Defense Department responded that it had no such images. The CIA acknowledged that it had 52 responsive photographs but declined to release them on the grounds that they were classified. Judicial Watch sued, and the United States District Court for the District of Columbia granted summary judgment for the agency. The U.S. Court of Appeals for the District of Columbia Circuit affirmed the district court's decision, finding the images properly classified and thus exempt from disclosure under FOIA.

FOIA requires agencies to disclose records upon request, unless one of nine exemptions applies. The CIA relied on Exemption 1, which permits agencies to withhold records that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." The D.C. Circuit held that the CIA had fulfilled both the substantive and procedural requirements for withholding the photographs. Relying on three declarations made by the CIA in the district court, the court found that the CIA had made a "logical and plausible" case that releasing the photographs could cause harm to U.S. intelligence, security, and foreign policy interests by providing a rallying point for retaliatory attacks against the United States, disclosing CIA intelligence-gathering techniques, and revealing the identities of some of the special operations personnel who had carried out the raid on bin Laden's compound, placing them and their families at risk. While the court acknowledged that the predicted harm was by its nature somewhat speculative, it concluded that the declarations had described specific prior incidents in which "reasonably analogous disclosures [had] led to widespread violence" and given "plausible reason to believe that a comparable reaction would follow" release of the photographs at issue.

Further, the court agreed with the CIA that the photographs had been properly classified. Although Judicial Watch raised questions about whether the initial classification decision had been made by a person with the necessary "original classification authority," the court held that subsequent review of the classification decision by the Director of the CIA's National Clandestine Service had cured any procedural defect.

For the full text of this opinion, please visit

Significance (if any): This opinion clarifies the circumstances in which materials may be kept secret in the interests of national defense or foreign policy.

Extended Summary (if applicable):

Panel (if known): Garland, Rogers, Edwards

Argument Date (if known): 1/10/2013

Date of Issued Opinion: 5/21/2013

Docket Number: 12-5137

Decided: Affirmed

Case Alert Author: Ripple Weistling

Counsel (if known): Michael Bekesha for Appellant. Robert Loeb, Stuart Delery, Ronald C. Machen, Jr., and Matthew Collette for Appellee.

Author of Opinion: Per curiam

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 05/21/2013 02:04 PM     DC Circuit  

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