As several watchdog groups continue to demand that the Obama administration release images of Osama bin Laden's capture and killing, a federal appeals court ruled this Tuesday that the government can continue to keep the images secret for reasons of "national security." Just as President Obama told CBS News in a May 2011 interview that he did not want to "spike the football" following the terrorist leader's capture by releasing images, the court unanimously ruled that the release of government images of the event would risk the "killing of Americans and violence against American interests."
The problem remains that the line between security discretion and government transparency remains poorly defined under the 1996 Freedom of Information Act, and greater consistency in its application is needed to better manage similar "controversies" moving forward.
In the recent Judicial Watch v. U.S. Department of Defense case, the federal appeals court ruled that a watchdog group's demand for the release of the images in question (alleged to show the dead terrorist leader at his compound in Pakistan, the transportation of his body to a U.S. ship, and burial at sea) could "risk violence" against Americans in response, justifying their classification as "top secret," and permitting them to be withheld by the CIA under a Freedom of Information Act "national security exception."
Conservative watchdog group Judicial Watch is insisting the court has no grounds under the Freedom of Information Act to keep the images secret. The organization's president Tom Fitton claims the ruling would "allow terrorists to dictate our laws," and plans to ask the U.S. Supreme Court to hear the case.
The reality is that the court's decision is likely shrewd, as much-anticipated images of the deceased Al-Qaeda founder's death could likely provoke backlash among Islamic militant groups promoting the former leader's mission in various pockets across the Middle East and North African regions.
However, such logic could prove crippling to open government efforts promoting transparency and accountability if the line delineating this "national security exception" is not more carefully defined. Many would argue, for example, that images of abuse in Guantanamo Bay may have similarly provoked terrorist backlash. However, their public release has contributed necessary scrutiny to interrogation policies that their protection for reasons of "national security" would have undermined. A similar area of ambiguity exists in considering how images depicting the impact of drone strikes in places like Yemen could enhance government accountability and scrutiny relating to controversial drone policies, and yet poignant images of efforts to fight such policies would risk promoting terrorist backlash.
It can be easy to craft an argument that increased transparency in counterterrorism efforts can incite terrorist backlash. It will continue, however, to be a difficult but pressing task in the wake of this case to define where details — and, specifically, images — of U.S. counterterrorism operations should remain secret due to security concerns, and in which cases their release is healthy for democracy and accountability. If U.S. courts remain unanimously supportive of keeping the bin Laden photos under wraps, they will face continued scrutiny to apply these principles in a range of delicate, related cases moving forward. U.S courts would do well to approach the issue with great caution, and work to more clearly understand and define where the "national security exception" line should be drawn.