They've got muck; we've got rakes. TPM Muckraker
"Well, first of all, there is no doubt whatsoever that bin Laden is dead," Brennan said. "I think by all accounts, it was a very successful raid on that compound in Abbottabad. What we don't want to do is it put out anything that is going to unnecessarily incite emotions on this issue. These photos were confirmation for the government that it was bin Laden. And so, therefore, we believe that it's unnecessary to put something like that out."
It is an argument that the administration has been making since just a few days after the raid, when debate over whether the administration should or would release any photographs of bin Laden's corpse was at its height. By May 4, 2011, Obama had come out against the release of any of the images, telling CBS News that "we don't need to spike the football," and further arguing that "given the graphic nature of these photos it would create a national security risk." But not everyone was satisfied with that argument. In the days after the raid, at least seven organizations -- the Associated Press, Politico, Citizens United, NPR, CBS News, Reuters, and Judicial Watch -- filed Freedom of Information Act requests for the images.
Almost a year later, none of the bin Laden FOIAs have been successful. The photographs are still secret, even as the administration cooperates on a growing pile of "exclusives" and special reports revealing new information about both the man and the mission.
Last month, The Washington Post was granted an "exclusive look" at documents taken from bin Laden's compound. This week, Time magazine has two "special reports" on bin Laden, featuring "access to previously unreleased letters written by bin Laden to his deputies and allies" and "access to top decision makers in over 100 hours of interviews," plus a hand-written memo penned by then-CIA head Leon Panetta moments after he received the go-ahead for the raid from Obama. On Monday, word came that some of bin Laden's documents seized in the raid would be posted online this week by West Point's Combating Terrorism Center. On Wednesday, NBC's "Rock Center with Brian Williams" will air an episode featuring an interview with Obama and "unprecedented access to the most secret and secure part of the White House, the Situation Room." The administration has cooperated in some form on all of these disclosures. Meanwhile, it continues to fight against release of the bin Laden photographs.
Just last week, a federal judge ruled against the conservative government watchdog Judicial Watch in its lawsuit against the Department of Defense and the CIA for the images.
"The Court declines Plaintiff's invitation to substitute its own judgment about the national-security risks inherent in releasing these records for that of the executive-branch officials who determined that they should be classified," U.S. District Judge James Boasberg wrote in his opinion.
In his ruling, Boasberg wrote that the Department of Defense "turned up nothing responsive" to Judicial Watch's request, while the CIA found 52 "responsive records," but claimed they were all exempt from disclosure. Boasberg agreed with the CIA's declarations that release of the images "could reasonably be expected to damage the national security."
"The public release of the responsive records would provide terrorist groups and other entities hostile to the United States with information to create propaganda which, in turn, could be used to recruit, raise funds, inflame tensions, or rally support for causes and actions that reasonably could be expected to result in exceptionally grave damage to both the national defense and foreign relations of the United States," John Bennett, director of the CIA's National Clandestine Service, has written in a declaration included in court documents, according to the AP.
Judicial Watch has appealed the ruling.
"Our sense is that we're correct and that the court, respectfully, is terribly wrong," Tom Fitton, president of Judicial Watch, told TPM.
Fitton said he thought it was "perfectly appropriate" for Obama to tout bin Laden's death as an achievement, but said withholding the images is at odds with his message.
"If it's offensive to the terrorists, why's [Obama] talking about it as a centerpiece of his campaign?" Fitton said.
Several of the other organizations that are seeking the images have not quite given up, either.
The Associated Press itself, for one, has made requests for more than just images. The news agency has submitted FOIA requests for a "range of materials," including contingency plans for bin Laden's capture, reports on the performance of equipment during raid, and copies of DNA tests that confirmed bin Laden's identity. The administration has refused a further AP request to expedite the FOIAs, a decision the AP has appealled.
"This issue remains a concern and we are still considering our options," Erin Madigan White, media relations manager for the AP, told TPM in an email.
NPR is also now considering next moves.
"NPR did file a FOIA, but it was stayed pending the result of a lawsuit by Judicial Watch," Anna Christopher Bross, director of media relations at NPR, told TPM. "Since that suit was only resolved a few days ago, we're considering what we're going to do next."
At least one expert has been surprised by how long the government has been able to hold back the photographs.
In May last year, Steven Aftergood, a government secrecy specialist at the Federation of American Scientists, told Reuters that he didn't believe "the executive branch will be able to claim the photographs of a corpse are classified... The photographs of the corpse may be gruesome, but it's hard to say it would damage national security."
On Monday, Aftergood told TPM that he had "misjudged the situation."
"I thought it was likely that either the Administration or the court would agree to draw distinctions among the various photographs, and that the more lurid ones would be withheld while the others would be released," Aftergood wrote in an email. "But instead the whole collection was categorically withheld, which is not what I expected."
"I can imagine that there might be some photographs that really are inflammatory or that pose particular security problems. But it doesn't seem quite credible to me that each and every one of the photographs fits that description," Aftergood added, before adding, in regard to the recent court ruling: "It's disappointing, because this was a missed opportunity for the court to exercise independent judgment and review. Instead what we got was judicial deference to the point of acquiescence, if not abdication."