Written by Tom Fitton
As I said in this space when we began the battle to obtain photos and videos of the raid that led to bin Laden’s capture and killing, we would not stop until we exhausted every single legal remedy available to us. Last stop: the United States Supreme Court.
This week we filed a certiorari petition with the Supreme Court of the United States to review a 2013 appellate ruling preventing the American people from accessing these images. We are trying to force the Department of Defense (DOD) and the Central Intelligence Agency (CIA) to release more than 50 photographs and video recordings of Osama bin Laden taken during and after the U.S. raid upon the terrorist leader’s compound in Pakistan on May 1, 2011.
But before we get to Judicial Watch’s High Court petition and arguments, I want to address the question of “why” these records are so vital and why it is so important that JW emerge victorious in this effort.
If the lower court ruling is allowed to stand, terrorists would be allowed to dictate our laws. After all, it was Barack Obama himself who gave the justification for keeping this information secret, claiming it would be unwise to “spike the football” over bin Laden’s killing as it might be offensive to al Qaeda and its allies.
But there is no provision of the Freedom of Information Act (FOIA) that allows documents to be kept secret because their release might offend our terrorist enemies. And we certainly do not want to start that precedent! Therefore, at stake in our battle to obtain these images is the fundamental right of the American people to access government information.
I’ll say it again here – as we’ve said in court: We’re not after any information that has any relevance to national security. We just want to complete the public record on one of the most significant victories in United States military history.
But the Obama administration says the American people have no right to this information. And thus far the courts have acquiesced, which raises significant separation of powers issues addressed by JW in its cert. petition.
This case, we argue “is the poster child of the almost blind deference being provided to the Executive Branch” by the courts in recent years in cases involving the withholding of materials labeled as classified. The petition asks the Supreme Court to mandate the lower courts to “conduct meaningful review” of Executive Branch decisions to withhold classified materials or the Freedom of Information Act (FOIA) will “continue as less of a disclosure than a withholding statute.”
Now, with a Supreme Court cert. petition, the petitioning party must always indicate the “Question Presented” to the Court. Here’s ours:
Whether 5 U.S.C. § 552(b)(1), [known as ‘Exemption 1’] which allows the Executive Branch to withhold information “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and [is] in fact properly classified pursuant to Executive order,” limits courts to provide almost blind deference to the Executive Branch’s classification determinations or whether it mandates that courts conduct meaningful review of those determinations.
And here are our “Reasons for Granting the Petition,” which centers on five key points:
I. The FOIA Is a Disclosure Statute – As this Court has recently reiterated, the FOIA was enacted to overhaul an earlier public records provision that had become more of “a withholding statute than a disclosure statute.” Milner, 131 S. Ct. at 1262 (quoting Mink, 410 U.S. at 79). For the FOIA to escape this same fate, the nine exemptions contained therein must be interpreted narrowly.
II. Exemption 1 Indisputably Requires All Withheld Material to Be Classified in Accordance with the Procedural Criteria As Well As Its Substantive Terms – Congress carefully crafted Exemption 1 to allow only the withholding of material that is “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and [is] in fact properly classified pursuant to Executive order ” … The DC Circuit failed to follow this well-established, indisputable standard.
III. The D.C. Circuit Blindly Approved the CIA’s Withholding of the Requested Images Even Though the Records Were Not Properly Classified – [T]he two courts collectively concluded that the CIA provided no evidence to demonstrate that the images were properly classified.
IV. The D.C. Circuit Blindly Approved the CIA’s Claim That the Release of the Images Reasonably Could Be Expected to Cause Exceptionally Grave Damage to National Security – [T]he court seems to suggest that the result of such violence and attacks [possibly triggered by the release of the photos and videos] is equivalent to exceptionally grave damage to national security. Prior to this ruling, no court had ever held that speculative, unspecific violence harms the national defense of the United States.
V. The Courts’ Almost Blind Deference Eviscerates the FOIA as a Disclosure Statute – By providing almost blind deference to the Executive Branch, it is foreseeable that the Executive Branch will abuse its seemingly unreviewable authority.
One thing that strikes me as I review our attorneys’ legal arguments is that this FOIA case is yet another facet of the president’s illicit assertion of executive power. In this case, President Obama personally orchestrated the withholding of documents simply because he didn’t want to be seen as “spiking the football.” Time and time again, this president thinks that his personal whims have the force of law. We hope the Supreme Court schools him otherwise.
This case also demonstrates why we have to be persistent in fighting Obama secrecy – because it is always a long ball game. On May 4, 2011, Judicial Watch filed a FOIA request with the DOD seeking “all photographs and/or video recordings of Osama (Usama) bin Laden taken during and/or after the U.S. military operation in Pakistan on or about May 1, 2011.” An identical request had been filed on May 3, 2011, with the CIA. When neither the DOD nor the CIA complied with the FOIA requests within the 20 business days as required by law, Judicial Watch, in June 2011, filed its FOIA lawsuits against both agencies.
On April 26, 2012, U.S. District Court Judge James Boasberg ruled that the images could remain secret while conceding: “Indeed, it makes sense that the more significant an event is to our nation – and the end of bin Laden’s reign of terror certainly ranks high – the more need the public has for full disclosure.” On May 21, 2013, the United States Court of Appeals for the District of Columbia affirmed the District Court decision while conceding that the documents may not have been properly classified.
Folks, this is a landmark case that is about much more than 50 photographs and videos. It could determine whether President Obama, with the blind deference of the judicial branch, can unilaterally rewrite the Freedom of Information Act at the expense of the American people’s right to know what its government is up to. The idea that our government would put the sensibilities of terrorists above the rule of law ought to concern every American. It certainly concerns JW, which depends upon FOIA to investigate and root out government corruption.
Two weeks ago, I told you about some very interesting information Judicial Watch uncovered regarding Attorney General Eric Holder’s travels, which cost the American people over $4 million, including $600,000-plus for personal junkets.
While the personal trips appear to be a colossal waste of taxpayer dollars, it is the “business” trips which have especially caught JW’s attention. The records we uncovered documented “business trips” by Holder to Al Sharpton’s National Action Network as well as conferences hosted by La Raza (“The Race”) and the NAACP. As I pointed out in this space previously, many of these trips took place during presidential election season, once again blurring the lines between the Obama administration and the Obama campaign.
And this brings me to yet another highly questionable trip by Holder – this time to serve as a keynote speaker at the LGBT (Lesbian Gay Bisexual Transgender) “Lavender Law Conference & Career Fair” held on August 23, 2012.
After hitting another Obama stonewall, JW is now in court seeking access to records detailing this trip, filing a Freedom of Information Act (FOIA) lawsuit in the U.S. District Court for the District of Columbia against the Obama Department of Justice (DOJ).
And why did this speech in particular pique the interest of our investigations team? Because it is yet another shocking example of this Justice Department’s willingness to do the bidding of radical leftist special interest groups.
In his keynote address at the LGBT Lavender Law Conference Holder congratulated “the tireless work of advocates and attorneys in and far beyond this room” who advanced the LGBT agenda, and called for the passion of its members to continue the “momentum.” Holder also reminded the audience that the Obama DOJ was refusing to defend the Defense of Marriage Act, though at the time, it was still prevailing law of the land.
This was the second high profile speech where Holder pandered to homosexual activists in a very short period of time. One month previous to his LGBT Lavender Conference appearance, Holder led a group of DOJ employees in honoring Anoka-Hennepin School District of Minnesota students involved in a lawsuit to force the district to endorse homosexual conduct.
Five of the students received an award at DOJ’s annual LGBT Pride Month program in the Great Hall of the Main Justice Building. We want records detailing this event, as well. In March 2013, Judicial Watch filed a Freedom of Information Act (FOIA) lawsuit against the Obama DOJ and Education (DOE) on behalf of the Family Research Council (FRC) for records regarding their involvement in the Anoka-Hennepin suit.
The response to requests for records regarding the Lavender Conference has been typically Obamaesque.
By a letter dated September 26, 2012, the DOJ’s Office of Information Policy (OIP) acknowledged that it had received the Judicial Watch FOIA request. The agency responded by saying that the request fell within the “unusual circumstances” of the Act, but failed to provide “a date on which determination is expected to be dispatched,” as required by law.
After OIP failed to provide any further communications, Judicial Watch, on March 18, 2013, contacted OIP asking that the records be provided without further delay.
On March 19, 2013, Judicial Watch received a letter from OIP saying that the search of the Office of the Attorney General had been completed and that OIP was now reviewing the records that had been located. The letter also stated that because the records contained information of interest to other DOJ offices, OIP could respond only after consulting those offices. No information was provided as to the status of searches for records with other offices.
On March 22, 2013, Judicial Watch filed an administrative appeal seeking compliance with the original FOIA request. OIP acknowledged receiving the appeal on the same day and was required to make a determination on the appeal within 20 working days. To date, OIP has failed to provide any further information concerning the FOIA request or the subsequent appeal. All of this bureaucratic double-speak and delay further proves the Big Lie that the Obama administration is the most transparent in history.
Per usual, this runaround is all about one thing – concealing the truth. The Obama administration has some more secrets they don’t want you to know.
Holder’s DOJ is increasingly home to a bevy of leftist activists pursuing narrow ideological agendas at the expense of the public interest. And DOJ officials want to keep this all a secret, which is why we had to file a FOIA lawsuit to get basic information about the Attorney General’s collusion with homosexual activists/government employees.
Here are the Benghazi numbers: Four Americans dead, including Ambassador Chris Stevens. Zero honest answers from the administration. And zero accountability. And now, even the tepid actions taken last December to place a few State Department officials on administrative leave over Benghazi, has been completely undone by Secretary of State John Kerry.
As reported by Fox News:
The four State Department officials put on administrative leave following the Sept. 11 terrorist attack in Benghazi have been allowed back on the job after being cleared by Secretary of State John Kerry to return, in a move one lawmaker decried as a “game of musical chairs.”…
Last December, the officials were removed from their posts after an independent panel criticized the security and “lack of proactive leadership” at the U.S. diplomatic compound. The stinging State report also called out officials in the Bureau of Near Eastern Affairs and said they “showed a lack of ownership of Benghazi’s security issues.”
Kerry reportedly made the move after a “thorough” internal investigation. And here is the “official” State Department’s justification for the reinstatement of the employees, per an unnamed agency official:
“In order to implement the (Benghazi report) and to continue to turn the page and shift the paradigm inside the Department, the four employees who were put on administrative leave last December pending further review will be reassigned inside the State Department…”
Frankly, this all sounds like a variation of the Hillary scream, “What difference does it make!”
Shift the paradigm? Why kind of paradigm shift in the reformation of the State Department following Benghazi is going to take place as a result of reinstating these officials?
If the Obama administration had wanted a “paradigm shift” after Benghazi, they would have told the truth from the beginning instead of instructing (allowing?) UN Ambassador Rice and Hillary Clinton to spew lies. They would have turned over all records to congressional investigators. And they would not have intimidated and/or kept hidden potential witnesses. Then they would have gone about the business of making sure it did not happen again.
The Obama administration obviously went another direction.
Fox News further reported that the State Department’s internal inquiry indicated that none of these officials “breached their duty,” while also noting that none of them would be returning to their previous positions.
So here’s the key question: If these officials did not “breach their duty” then who did? Four Americans are dead following a terrorist attack on the U.S. Consulate in Libya. Surely the Obama administration cannot contend that everyone within the State Department (and other involved agencies) performed their duties with professionalism and competence and are blameless.
Yes they can! – So says conservative commentator Charles Krauthammer in an interview with Fox News – and for political gain.
“This is the definition of how to conduct a stonewall,” Krauthammer, a syndicated columnist and Fox News contributor, said of Secretary of State John Kerry’s decision to put the officials back to work.
“The new Secretary of State looks at this and says, essentially, these people were not responsible, or they don’t really carry any accountability – they are back on the job, as you say, without ever missing a paycheck, and no one is held responsible.”
Krauthammer added, “whatever the intent was, it surely is a Clinton protection operation, in effect.”
In summary: Placing the officials on leave – a publicity stunt. Bringing them back – a political play. All of it intended to protect the Democratic nominee-in-waiting, Hillary Clinton. (Perhaps THIS is the “paradigm” shift the State Department truly seeks.)
Here’s my take. Maybe these four officials had nothing to do with the massive screw-up inside the Obama administration that resulted in the deaths of four Americans. Maybe they had nothing to do with the lying that took place immediately thereafter. And maybe they should never have been put on administrative leave in the first place.
But someone inside the Obama administration is surely responsible for Benghazi. And we intend to get to the bottom of it. (See here for information on our Benghazi investigative and legal activities, which is one of our most significant projects at this time.)
This has been one of the most significant scandals and cover-ups in modern United States history. And the political gamesmanship, obfuscation and outright lying by the Obama administration is shameless – and it must be stopped.
We’re coming up on the one year anniversary of the attack. And the only American citizen who has been held to “account” was the poor sap who made the Internet video that was falsely portrayed as inciting the Benghazi attack. (The Obama administration put him in jail for supposedly violating the terms of parole for other crimes.)
And it is not just the Obama gang that is complicit in this cover-up. Most of the congressional Republican leadership is actively opposing efforts to ramp up investigations into the Benghazi scandal.
I suggest you do a few things over few weeks (besides directly supporting our work!). Write letters to the editor of your local newspaper demanding accountability. Get the word out also on social media. Contact your members of Congress to express your views on Benghazi. We can’t rely on the politicians for leadership. Working together, we can provide the leadership and vindicate those fine Americans slain on September 11, 2012.
Until next week…