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Bloomberg News, Published May 21 2013

Bin Laden corpse photos can be kept secret, court rules

WASHINGTON — Photos of Osama bin Laden's corpse and burial at sea were properly classified by U.S. officials and can be withheld from the public, a federal appeals court ruled.

The U.S. Court of Appeals in Washington Tuesday rejected arguments by Judicial Watch Inc., a conservative litigation group, that the Central Intelligence Agency failed to show that releasing images of bin Laden's body — specifically those showing it cleaned and prepared for burial — would harm national security or reveal classified intelligence strategies.

“It is undisputed that the government is withholding the images not to shield wrongdoing or embarrassment, but rather to prevent the killing of Americans and violence against American interests,” according to the ruling by U.S. Circuit judges Merrick Garland, Judith Rogers and Harry Edwards.

The lawsuit, filed under the Freedom of Information Act, involves 52 images 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. Those images were classified as top-secret by the CIA.

“The court's interpretation would allow terrorists to dictate our laws,” Tom Fitton, Judicial Watch president, said in an interview. “The decision seems to acknowledge the photos were improperly classified but gives the Obama administration a pass.”

The appeals court agreed the CIA may not have fully followed classification procedures for the images. Even so, the finding by a top CIA official that they had been correctly classified “removes any doubt” about the propriety of the designation, the court said.

In an interview in May 2011 with the CBS program “60 Minutes,” President Barack Obama said release of the “very graphic” photos of the al-Qaida 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 government argued 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 2012.

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 email 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,” Michael Bekesha, a lawyer for the group, said in court papers.

The appeals court said the government properly weighed the concerns of senior military and intelligence officials who thought that “releasing images of American personnel burying the founder and leader of al-Qaida could cause exceptionally grave harm.”

The decision refers to declarations from these officials citing 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.

“The CIA's predictions of the violence that could accompany disclosure of the images provide an adequate basis for classification,” the judges said.