Tuesday, May 21, 2013
Re: Request for fifty-two post-mortem images of Osama bin Laden Disposition: Affirming the district court's grant of summary judgment to defendant
- Exemption 1: The court affirms the district court's grant of summary judgment to defendants. The court notes that "the operative classification order under Exemption 1, sets forth both substantive and procedural criteria for classification." The court notes that "[t]he Order's substantive criteria, as relevant here, are twofold." "First, classified information must pertain to at least one of eight subject-matter classification categories." "Second, disclosure of that information must reasonably be expected to cause some degree of harm to national security—in the case of Top Secret information, 'exceptionally grave' harm—that is identifiable or describable." "The Order also establishes two pertinent procedural requirements. Information may be classified only by an individual with original or derivative classification authority." "And classified documents must be marked with several pieces of information, including the identity of the classifier and instructions for declassification." The court addresses each of these in turn. Regarding the substantive requirements, first, the court finds that "it is indisputable that the images at issue fall within the Executive Order's subject-matter limits." The court finds that, "at least some of the images 'pertain[ ] to . . . intelligence sources or methods," and, "[a]s the district court observed, 'pertains' is 'not a very demanding verb.'" Second, the court finds that "[t]he photographs used to conduct facial recognition analysis could reasonably be expected to reveal classified intelligence methods," and "[t]he images displaying members of the special operations unit that conducted the raid could reasonably be expected to endanger those personnel." The court notes that plaintiff "does not appear to seriously question the CIA's contention that the most "graphic" and "gruesome" of the remaining images—those displaying the bullet wound to bin Laden's head—merit classification because of the danger that their release would lead to violence against American interests." With regard to the "seemingly innocuous" images depicting the burial of bin Laden's body at sea, the court accepts defendants' explanation that the release of those images also "could cause exceptionally grave harm" to the national security. The court notes that defendants provided examples of "reasonably analogous disclosures" that have led to "widespread and fatal violence" in the Middle East, such as the publication of a Danish cartoon of the Prophet Muhammad and an erroneous article in Newsweek alleging that American soldiers had desecrated the Koran. The court finally notes that "al Qaeda has already devoted attention to the 'so-called "martyrdom"' of bin Laden and has specifically 'attacked the United States' assertions that [he] received an appropriate Islamic burial at sea,'" and that release of "the images of the burial at sea 'could be interpreted as a deliberate attempt by the United States to humiliate' bin Laden." Regarding defendants' compliance with the procedural requirements for classification, first, the court finds that plaintiff's "factual premise," "that the images at issue were not classified until after the CIA received its FOIA request," "is mistaken, as [defendant CIA] has averred that the images were in fact classified before it received the appellant's FOIA request, and there is no evidence to the contrary." Second, the court acknowledges defendants' position that "the records were not initially classified by someone with original classification authority, but rather by an individual who 'derivatively' classified the records by 'apply[ing] classification markings . . . as directed by a classification guide.'" However, the court finds that "[e]ven if the CIA is right that documents can be derivatively classified and marked in this way—and we express no view on the matter—we cannot determine whether derivative classification of the images was proper without some description of the classification guide on which the derivative classifier purportedly relied." Even though defendants did not provide such a description, the court finds that no further steps are required because the court "already ha[s] a declaration from [the individual] who has original classification authority." For this reason, "any failure relating to application of the classification guide would not 'reflect adversely on the agency's overall classification decision.'"
Court of Appeals
Updated August 6, 2014