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Disclosures of Zero Dark Thirty Leaks Spur Criminal Referral

Holder Justice Department Has Sat on Criminal Referral to Investigate Undersecretary of Defense Michael Vickers for Improper Leak – Referral Made Prior to 2012 ElectionEric Holder official portrait

(Washington, DC) — Judicial Watch announced yesterday that it has filed a reply brief with the United States District Court for the District of Columbia seeking access to the names of the five Central Intelligence Agency (CIA) bin Laden raid operatives disclosed by the Obama Department of Defense (DOD) and the CIA to Kathryn Bigelow and Mark Boal, the filmmakers behind the critically acclaimed and controversial film Zero Dark Thirty, which concerns the capture and killing of 9/11 mastermind Osama bin Laden. Judicial Watch’s brief was filed as news reports emerged indicating that the Inspector General made a criminal referral to the Obama Justice Department in September 2012 regarding Undersecretary Michael Vickers, who was alleged to have improperly leaked the name of at least one operative to the filmmakers.

Documents previously uncovered by Judicial Watch reveal that the Obama administration sought to have “high visibility” into bin Laden-related projects, and granted Boal and Bigelow unusual access to agency information in preparation for their film. However, Obama administration officials also disclosed in sworn court documents related to this lawsuit that the sensitive information released to Bigelow and Boal could cause an “unnecessary security and counterintelligence risk” if released to the public. The admission seems to contradict the public statement by Obama White House spokesman Jay Carney regarding the controversy: “We do not discuss classified information,” Carney told reporters.

In its reply brief filed on December 17, 2012, Judicial Watch reiterated that the Obama administration cannot have it both ways:

In its responsive brief, the government says it wanted to facilitate an accurate movie portrayal of the people involved in the hunt for bin Laden, but it still wishes to keep secret the identities of those individuals who will be accurately portrayed. These desires appear to be mutually exclusive.

Just as Plaintiff predicted in its opening brief, within the past week the privacy of at least one of these government employees has been eroded by media outlets seeking to satisfy the overwhelming public interest in the making of this critically acclaimed and controversial film. This should have been foreseeable a year ago when the government agreed to allow filmmakers Kathryn Bigelow and Mark Boal to interview the men and women behind the search for bin Laden for a quasi-journalistic movie based on their efforts.

Judicial Watch’s brief also takes issue with the Obama administration’s attempts to dissuade the judge from considering the film itself, and an ongoing Inspector General investigation into the matter:

Despite the government’s plea that the Court not consider Plaintiff’s evidence of Congressional or Inspector General investigations, or take notice of the movie itself in considering the remaining privacy interests, this Court can and should consider “all of the circumstances” surrounding the disclosures in deciding whether the public interest favors the release of personal information….If the public knows which names were shared with the filmmakers (and by deduction, which were not), it will shed light on how and whether the government was trying to influence the narrative of an “accurate” theatrical portrayal.

As reported by McClatchy, Undersecretary for Defense Michael Vickers is now at the center of the Zero Dark Thirty leak scandal under investigation by the Inspector General, which led to a criminal referral to the Holder Justice Department in September 2012:

Pentagon investigators concluded that a senior Defense Department official who’s been mentioned as a possible candidate to be the next CIA director leaked restricted information to the makers of an acclaimed film about the hunt for Osama bin Laden, and referred the case to the Justice Department, according to knowledgeable U.S. officials.

The Justice Department received the case involving Undersecretary of Defense for Intelligence Michael Vickers in September, but so far it’s declined to launch a criminal prosecution, said two senior U.S. officials who requested anonymity because of the sensitivity of the matter.

“The documents we uncovered implicate the White House, the CIA, and the Pentagon in the bin Laden movie leaks. The fact that the Holder Justice Department sat on a criminal referral until after the election is utterly disgraceful. This story is about to get even worse for this administration,” said Judicial Watch President Tom Fitton. “In the meantime, we will continue to fight the Obama administration’s stonewalling on this scandal in federal court.”

In separate litigation, Judicial Watch again asked the United States Court of Appeals for the District of Colombia to overturn a U.S. District Court ruling and instruct the DOD and CIA to release 52 images from the raid on Osama bin Laden’s compound and the terrorist mastermind’s burial at sea.

Specifically, the Judicial Watch reply brief, filed on December 13, 2012, stated:

Defendants [DOD and CIA] have failed to provide any evidence that all 52 images, including those depicting bin Laden’s burial at sea, pertain to ‘foreign activities of the United States.’ Defendants also have failed to provide any evidence that images depicting the burial at sea actually pertain to ‘intelligence activities.’ Nor have they demonstrated that the release of images of a somber, dignified burial at sea reasonably could be expected to cause identifiable or describable exceptionally grave damage to national security.

The appeals court is expected to hear oral argument on this effort to release the bin Laden photos and video on January 10, 2013, the day before the national release of the Zero Dark Thirty film

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