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Judicial Watch Statement on Supreme Court Refusal to Take up Challenge to Obama Secrecy on bin Laden Images

 

(Washington, DC)Judicial Watch issued a statement today regarding the U.S. Supreme Court’s refusal to take up a challenge to the Obama administration’s keeping secret post mortem images of Osama bin Laden and his burial at sea.

 

Judicial Watch President Tom Fitton said:

 

With the seeming endorsement of the judiciary, Barack Obama has rewritten 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 the “most transparent administration in history” would put the sensibilities of terrorists above the rule of law ought to concern every American.  What other laws that terrorists don’t like might be subject to unilateral change by Obama?  Obama’s appeasement places our fundamental rights and accountable government at risk.  

 

Judicial Watch had filed a certiorari petition with the Supreme Court of the United States to review a 2013 Appeals Court ruling against the Judicial Watch lawsuit (Judicial Watch v. U.S. Dept. of Defense and Central Intelligence Agency (No. 12-5137)). The suit sought 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.

 

Judicial Watch’s petition had asked the Supreme Court to “reverse this disturbing reversal,” and mandate the courts to “conduct meaningful review” and warned that the Freedom of Information Act (FOIA) will “continue as less of a disclosure than a “withholding statute.” 

 

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Brennan Leak to TV Commentators of “Inside Control” of Terrorism Plot May Have Led to Exposure of Spies, Shutdown of Vital U.S. Intelligence Operation 

(Washington, DC) – Judicial Watch today released the full transcript of a May 7, 2012, teleconference between then-White House top counterterror adviser John Brennan and various TV terrorism consultants, in which Brennan reveals that the U.S. and its allies had “inside control over any plot” in its efforts to thwart a May 2012 terrorism bomb plot.  Brennan is now CIA director. The transcript was obtained through a Freedom of Information Act lawsuit: Judicial Watch v. CIA (No. 13-946).

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The Brennan revelation of “inside control” – an intelligence community euphemism for spies within an enemy operation – reportedly helped lead to the disclosure of a previously well-kept secret at the heart of a joint U.S.-British-Saudi undercover terrorism operation inside Yemen-based al Qaeda in the Arabian Peninsula (AQAP). According to a Reuters May, 18, 2012, report:

The next day’s headlines were filled with news of a U.S. spy planted inside Yemen-based Al Qaeda in the Arabian Peninsula (AQAP), who had acquired the latest, non-metallic model of the underwear bomb and handed it over to U.S. authorities.

At stake was an operation that could not have been more sensitive — the successful penetration by Western spies of AQAP, al Qaeda’s most creative and lethal affiliate. As a result of leaks, the undercover operation had to be shut down.

In May 2013, the Justice Department launched a wide-ranging investigation of leaks surrounding the thwarted “underwear bomb” terrorist attack. Defending the department’s seizure of phone records from The Associated Press, Attorney General Eric Holder described the leaks as “within the two or three most serious leaks I have ever seen.”

In the transcript obtained by Judicial Watch, Brennan led the phone call where he addressed the top terror consultants for ABC, NBC, CNN, and CBS including Caitlin Hayden, Frances Townsend, Richard Clarke, Roger Cressey, and Juan Zarate. In an apparent attempt to soft-peddle the thwarted terrorist attack, Brennan twice exposes the covert operation; first at the outset of the call, then as the conference draws to a close:

  • BRENNAN: The device itself, as I think the FBI statement said quite clearly, never posed a threat to the American public or the public … Well, as we, well know, al Qaeda has tried to carry out simultaneous types of attacks, and so we were confident that we had inside control over the – any plot that might have been associated with this device. (Emphasis added)
  • CLARKE: If it gets asked. There was no active threat because we had insider control …
  • BRENNAN: I would not disagree with the way you put that, at all.

Brennan later defended his comments in his February 2013 Senate Intelligence Committee confirmation hearing, while admitting to Sen. James Risch (R-ID) that he had, indeed, leaked the information about “inside control;” a leak Risch characterized as “the leak the Justice Department is looking for”:

  • BRENNAN: What I’m saying is that we were explaining to the American public why that IED was not, in fact, a threat at the time that it was in the control of individuals. When we say “positive control,” “inside control,” that means that we have, in fact, that operation, either environmentally or any number of ways …
  • SENATOR RISCH: Having used the words that you used of “inside control,” it isn’t much of a leap to determine that somehow you had a handle on it.
  • BRENNAN: It’s not much of a leap to know that if in fact we said this IED was, in fact, obtained, and it was not a threat at the time, that there was some type of inside control. It is almost a truism.
  • SENATOR RISCH: Well, having said that, it seems to me that the leak that the Justice Department is looking for is right here in front of us.

“It is abundantly clear that the Obama White House, in a self-serving attempt to garner favor with the American people over its handling of the ‘underwear bomb,’ blew the cover on a vital covert operation and exposed our agents to serious danger,” said Judicial Watch President Tom Fitton. “Edward Snowden, the AP, Fox News and other targets of leak investigations may not be able to understand why Brennan has been able to skate by for this damaging leak.”

Documents obtained by Judicial Watch also reveal former CIA Director told ceremony attendees: “And you have made me proud as an Italian to know that bin Laden sleeps with the fishes.” 

(Washington, DC) – Judicial Watch announced today that it has obtained more than 200 pages of documents from the Central Intelligence Agency (CIA), including a previously unreleased CIA internal report confirming that former CIA Director Leon Panetta revealed classified information at a June 24, 2011, bin Laden assault awards ceremony attended by “Zero Dark Thirty” filmmaker Mark Boal. The documents were produced in response to a June 21, 2013, Freedom of Information Act (FOIA) lawsuit against the Central Intelligence Agency (CIA).

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Significantly, the entire transcript of the Panetta speech provided to Judicial Watch by the CIA is classified “Top Secret.”  More than 90 lines are redacted for security reasons, further confirming that significant portions of the speech should not have been made in front of the filmmaker who lacked top security clearance.

At the conclusion his speech, the transcript shows Panetta told the audience at the ceremony, “You have made me proud of the CIA family. And you have made me proud as an Italian to know that bin Laden sleeps with the fishes.”

During the speech, according to a draft Pentagon inspector general’s report released earlier this year, “Director Panetta specifically recognized the unit that conducted the raid and identified the ground commander by name.” Subsequent to the ceremony, Rep. Peter King (R-NY) said, “CIA was very sloppy and the administration was very sloppy in enforcing security procedures when it came to Hollywood. It almost seems as if they were star-struck.” Significantly, for some reason, the final IG report omitted any reference to Panetta’s disclosure of “TOP SECRET” and other sensitive information at an event.”

Also, included in the documents provided to Judicial Watch is an October 22, 2012, internal  “Review of UBL Awards Ceremony Attendance” written by the CIA Office of Security (OS) concluding that, “The Agency’s Security policy and administrative procedures were not followed in allowing Mr. Boal, a member of the media, access to the classified Bin Ladin Operation Award Ceremony.” The three-page Review also states, “The review conducted by OS leads to the conclusion that the failure to follow stipulations in ARs [redacted] resulted in the disclosure of classified information to a member of the media, without benefit of any documentation to reflect a waiver to the above policies.”

Highlights of the newly released documents also include:

  • A letter from the Director of Operations of the Joint Chiefs of Staff to the Department of Defense Inspector General stating: “It is my determination, as the Original Classification Authority, that both of these transcripts [from the ceremony] contain SECRET / [REDACTED] information. The information in each transcript was classified at the time each incident occurred.”
  • Information revealing that there were actually two classification reviews conducted by the Original Classification Authority (OCA) because the original transcript of Panetta’s speech provided by the CIA to the DOD Inspector General was inaccurate and incomplete: “ISPA [Intelligence and Special Program Assessments] discovered proof of inconsistencies and lack of information on the original transcript received by the CIA in comparison to the video recording. As a result of the inaccurate transcript, OGC determined the OCAs determination are not valid and must been resubmitted for another OCA determination to include the verbatim information.”
  • A CIA Review reference suggesting that former CIA Chief of Staff (then DOD Chief of Staff) Jeremy Bash as the individual responsible for directing the CIA’s Office of Public Affairs to allow Boal to attend the ceremony: “… OS [Office of Security] did speak with an OPA [Office of Public Affairs] representative who was involved in the ceremony, who advised that the ODCIA [Office of the Director of the Central Intelligence Agency] directed Mr. Boal to attend the ceremony.”  This appears to confirm information provided in the DOD IG report: “[T]he CIA PAO contacted the DOD PAO to state that efforts failed and the ‘Chief of Staff’ directed that the Hollywood executive be given access to the event.”

The inclusion of Boal at the CIA ceremony was not the only instance of the Obama administration apparently attempting to influence the production of the “Zero Dark Thirty” movie. In August 2012, Judicial Watch released records it obtained from the CIA and the Department of Defense pursuant to Freedom of Information Act (FOIA) lawsuit regarding meetings and communications between government agencies, Boal, and film director Kathryn Bigelow, as they prepared to shoot “Zero Dark Thirty.” According to a June 15, 2011, email from Benjamin Rhodes, Deputy National Security Advisor for Strategic Communications, the Obama White House was intent on “trying to have visibility into the UBL (Usama bin Laden) projects and this is likely a high profile one.”

“The new CIA internal documents obtained confirm conclusively that former CIA Director Panetta breeched national security in order to curry favor with Hollywood filmmakers who the Obama administration hoped would make a pro-Obama film,” said Judicial Watch President Tom Fitton. “The sensitivities about classifies leaks from this administration don’t seem to extend to top level officials like Mr. Panetta.  This new information suggests that criminal probe of this dangerous leak is appropriate. At the conclusion his speech, Panetta told the audience at the ceremony, “You have made me proud of the CIA family. And you have made me proud as an Italian to know that bin Laden sleeps with the fishes.”

Petition argues that case could determine whether courts provide ‘meaningful review’ or ‘blind deference’ to Executive branch decisions 

(Washington, DC) – Judicial Watch announced that it has filed a certiorari petition with the Supreme Court of the United States to review a 2013 Appeals Court ruling against the Judicial Watch lawsuit (Judicial Watch v. U.S. Dept. of Defense and Central Intelligence Agency (No. 12-5137)). The suit seeks 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.

In its cert petition Judicial Watch argues that “the instant case 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 classified materials. The petition asks the Supreme Court to “reverse this disturbing reversal,” and mandate the courts to “conduct meaningful review” or the Freedom of Information Act (FOIA) will “continue as less of a disclosure than a withholding statute.”

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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.

In a statement issued at the time of the appellate decision, Judicial Watch President Tom Fitton pledged to appeal the ruling, saying, “The court’s interpretation would allow terrorists to dictate our laws. Americans’ fundamental right to access government information and, frankly, the First Amendment are implicated in this ruling. There is no provision of the Freedom of Information Act that allows documents to be kept secret because their release might offend our terrorist enemies.

In the cert petition filed today with the Supreme Court, Judicial Watch states the “Question Presented” as:

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.

Judicial Watch bases its “Reasons for Granting the Petition” 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.

“Make no mistake about it,” said Judicial Watch President Tom Fitton, “this is a landmark case that 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.”

Draft IG report accused former CIA Director of revealing name of SEAL unit and ground commander that carried out bin Laden raid at ceremony attended by “Zero Dark Thirty” filmmaker Mark Boal 

(Washington, DC) – Judicial Watch announced today that on June 21, 2013, it filed a Freedom of Information Act (FOIA) lawsuit against the Central Intelligence Agency (CIA) seeking access to records identifying attendees at a June 24, 2011, awards ceremony for individuals involved in the search for and killing of Osama bin Laden. The lawsuit also seeks all records of communications from CIA employees regarding the attendance of “Zero Dark Thirty” filmmaker Mark Boal at the event. (Judicial Watch, Inc. v. Central Intelligence Agency (No. 1:13-cv-00945)).

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Judicial Watch seeks the following records pursuant to a December 19, 2012, FOIA request:

  • Any and all guest lists or other records identifying individuals who attended and/or were invited to attend the June 24, 2011 awards ceremony at CIA Headquarters for individuals involved in the search for, and killing of, Osama bin Laden
  • Any and all records of communication between any official, employee, or representative of the Central Intelligence Agency and any other party regarding the attendance of Mr. Mark Boal at the aforementioned awards ceremony.

By letter dated December 27, 2012, the CIA acknowledged having received Judicial Watch’s request on December 19, 2012. The letter stated that it was unlikely the CIA could respond to the request within 20 working days as required by law, adding, “You have the right to consider our honest appraisal as a denial of your request and you may appeal to the Agency Release Panel.” Because the statement was not an adverse determination within the meaning of the law, however, no administrative appeal was possible, therefore Judicial Watch filed the June 21, 2013, FOIA lawsuit.

On June 5, 2013, Politico reported:

Former CIA Director Leon Panetta revealed the name of the Navy SEAL unit that carried out the Osama bin Laden raid and named the unit’s ground commander at a 2011 ceremony attended by “Zero Dark Thirty” filmmaker Mark Boal.

Panetta also discussed classified information designated as “top secret” and “secret” during his presentation at the awards ceremony, according to a draft Pentagon inspector general’s report published Wednesday by the Project on Government Oversight.

According to a CIA news release, the purpose of the ceremony was to honor “the dedication and commitment of CIA officers, military service members, and Intelligence Community partners for their work on the historic operation that concluded the hunt for Usama Bin Ladin.” But the guest list also included filmmaker Boal, who had been invited to attend what Fox News reported as “a speech classified as secret to a group of CIA attendees.”

During the speech, according to the draft Pentagon inspector general’s report, “Director Panetta specifically recognized the unit that conducted the raid and identified the ground commander by name.” The draft report added, “Director Panetta also provided DoD information, identified by relevant Original Classification Authorities as TOP SECRET….” The final inspector general’s report omitted any reference to Panetta’s speech, a Pentagon spokesperson saying the matter had been referred to the CIA IG.

The inclusion of Boal at the CIA ceremony was not the only instance of the Obama administration attempting to influence the production of the “Zero Dark Thirty” movie by leaking classified information. In August 2012 – after having repeatedly been told by the Obama administration that nothing inappropriate had been leaked – Judicial Watch obtained “overlooked” documents from the CIA and the Department of Defense (DOD) through FOIA lawsuit regarding meetings and communications between government agencies, Boal, and film director Kathryn Bigelow, in which the filmmakers were apparently provided classified details about the bin Laden assault.

The documents, which the CIA and DOD held back for eight months, revealed 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. In a June 15, 2011, email to Deputy National Security Advisor for Strategic Communications Benjamin Rhodes, then-Assistant Secretary of Defense for Public Affairs Doug Wilson noted that “Boal has been working with us and with the CIA (via George Little) for initial context briefings – at DoD this has been provided by Mike Vickers, and at CIA by relevant officials with the full knowledge and full approval/support of Director Panetta.”

Just one month after the Judicial Watch FOIA lawsuit revelations, the Pentagon Inspector General made a criminal referral to the Holder Department of Justice (DOJ) implicating Undersecretary of Defense Michael Vickers in the improper release of classified information.  Obama administration officials later disclosed in sworn court documents related to the Judicial Watch lawsuit that the sensitive information released to Bigelow and Boal could cause an “unnecessary security and counterintelligence risk” if released to the public. To date, the Holder DOJ has failed to file any charges against those responsible for the leaks.

“Panetta’s disclosures at the CIA ceremony with Mark Boal present, along with the leaks revealed in the earlier documents obtained by Judicial Watch, provide conclusive backing to the serious charge that the Obama administration has played fast and loose with national security information in order to help Hollywood filmmakers make a pro-Obama film,” said Judicial Watch President Tom Fitton. “In light of the Manning conviction and Snowden drama, it is clear that the Obama administration is more than a little two-faced when it comes to enforcing the law on illegal leaks.”

Details of plot from CIA chief while top Obama counterterrorism adviser may undercut Obama administration claims that AP story ‘put the American people at risk.’

(Washington, DC) – Judicial Watch announced today that on June 21, 2013, it filed a Freedom of Information Act (FOIA) lawsuit (Judicial Watch, Inc. v. Central Intelligence Agency (No. 1:13-cv-00946)) against the Central Intelligence Agency (CIA) seeking access to information regarding a May 2012 conference call between then-Obama counterterrorism adviser John Brennan and select TV terrorism consultants regarding a foiled terrorist plot to bomb a U.S. aircraft scheduled to fly from Yemen to the United States.

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The Brennan conference call lies at the heart of The Associated Press (AP) defense against the sweeping secret subpoena of the press association’s phone records by the Obama Department of Justice (DOJ). In seizing the AP records, DOJ claimed that the news organization’s disclosure of the foiled plot had “put the American people at risk.”

But, according to a May 15, 2013, NBC News report, “[T]hat assertion by Attorney General Eric Holder could be undermined by the White House’s decision to publicly comment about the operation at the time and reveal details beyond those in the original AP story, according to legal experts and counterterrorism officials.” The Obama administration has withheld the Brennan conference call transcript from the public.

By letter on March 21, 2013, the CIA acknowledged receipt of Judicial Watch’s request on March 5, 2013. The letter stated that it was unlikely the CIA could respond to the request within 20 working days as required by law, adding, “You have the right to consider our honest appraisal as a denial of your request and you may appeal to the Agency Release Panel.” Because the statement was not an adverse determination within the meaning of the law, however, no administrative appeal was possible. Hence, the June 21 FOIA lawsuit.

On May 7, 2012, AP broke the story of the foiled airliner bomb plot, reporting:

The CIA has thwarted a plot by al-Qaida’s affiliate in Yemen to destroy a US-bound airliner using a bomb with a new design around the one-year anniversary of the killing of Osama bin Laden.

The plot involved an upgrade of the underwear bomb that failed to detonate aboard a jetliner over Detroit on Christmas 2009.

According to Reuters, following the breaking of the story by AP, Brennan, then a top White House adviser on counterterrorism, conducted a teleconference with select former counterterrorism advisers, who had become TV news commentators, to privately brief them on yet unrevealed details of the foiled Yemeni plot. While Brennan assured the commentators that “the plot was never a threat to the U.S. public or air safety because Washington had ‘inside control’ over it,” his comments reportedly “helped lead to disclosure of the secret at the heart of a joint U.S.-British-Saudi undercover counter-terrorism operation.”

NBC News reported that, “Brennan later told the Senate Intelligence Committee that he conducted the briefing to avoid ‘dangerous questions and speculation’ about the operation.”

Despite Brennan’s briefing for TV terrorism consultants revealing secret details of the Yemen operation, the Washington Post reported on May 13, 2013, “In a sweeping and unusual move, the Justice Department secretly obtained two months’ worth of telephone records of journalists working for the Associated Press as part of a year-long investigation into the disclosure of classified information about a failed al-Qaeda plot last year.” According the article, federal authorities obtained cellular, office and home telephone records of individual reporters and an editor; AP general office numbers in Washington, New York and Hartford, Conn.; and the main number for AP reporters covering Congress.

“This is truly classic:  the Obama administration stonewalling the release of the details of a briefing to the press,” said Judicial Watch President Tom Fitton. “One might conclude that the cover-up related to this antiterrorism briefing has something to do with minimizing the controversy of their extraordinary investigation into the Associated Press over its reporting on the topic covered in this very same briefing.”

Judicial Watch: “The opinion is craven, absurd, and undermines the rule of law.

The court’s interpretation would allow terrorists to dictate our laws.”

(Washington, DC) – Judicial Watch, the public interest group that investigates and prosecutes government corruption, today criticized a ruling by the United States Court of Appeals for the District of Columbia affirming a U.S. District Court decision allowing the Department of Defense (DOD) and Central Intelligence Agency (CIA) to withhold 59 images from the raid on Osama bin Laden’s compound and the terrorist mastermind’s burial at sea (Judicial Watch v. U.S. Dept. of Defense and Central Intelligence Agency (No. 12-5137)).  Judicial Watch president Tom Fitton issued the following statement reacting to today’s ruling:

“The opinion is craven, absurd, and undermines the rule of law.  The court seems to acknowledge that the images were improperly classified but gives the Obama administration a pass. The court’s interpretation would allow terrorists to dictate our laws. Americans’ fundamental right to access government information and, frankly, the First Amendment are implicated in this ruling.  As one of the judges on this panel suggested that the Benghazi attack was caused by an Internet video, this decision is perhaps unsurprising.  The courts need to stop rubberstamping this administration’s improper secrecy.  There is no provision of the Freedom of Information Act that allows documents to be kept secret because their release might offend our terrorist enemies.  Our lawyers are considering our next legal steps.”

The Appeals Court decision upheld an April 26, 2012, ruling by the District Court denying a Freedom of Information Act (FOIA) request by Judicial Watch 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.”

While ruling against Judicial Watch, U.S. District Court Judge James Boasberg had conceded, “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.”

Judicial Watch announced today that Obama administration officials disclosed in sworn court documents that sensitive information released tothe filmmakers for the upcoming film on the bin Laden raid,  Zero Dark Thirty, could cause an “unnecessary security and counterintelligence risk” if released to the public. The admissions, made during the course of Judicial Watch Freedom of Information Act (FOIA) lawsuit seeking records pertaining to cooperation between Obama administration officials and director Kathryn Bigelow and screenwriter Mark Boal in preparation for the film, raise questions about the public statement to reporters by Obama White House spokesman Jay Carney regarding the controversy: “We do not discuss classified information.”  The government claims that the information shared is not necessarily classified “in isolation.”

“The government cannot have it both ways in this case,” Judicial Watch argued in a countermotion for summary judgment filed with the court on November 12, 2012. “If this information were very sensitive, it would not have been shared with the filmmakers. Since the government did share the information with the filmmakers, the court should conclude that it is necessarily not sensitive … Assisting to make a movie about government accomplishments is not a necessary or important governmental function. If it were, the term for it would be political propaganda.”

JW previously obtained records from the Department of Defense (DOD) and the CIA regarding meetings and communications between government agencies and Kathryn Bigelow, the Academy Award-winning director of The Hurt Locker, and screenwriter Mark Boal in preparation for Zero Dark Thirty.  According to the records, 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, now scheduled for release in mid-December. The disclosures made to the filmmakers are now part of an investigation by the DOD Inspector General.

The DOD and the CIA have continued to withhold information concerning the names of five CIA and military operatives involved in the bin Laden operation, which were shared with the filmmakers. Judicial Watch has identified the precise emails containing the information it wishes to obtain, and in sworn declarations Obama administration officials conceded that this information was provided to Bigelow and Boal.

Mark Herrington, Associate Deputy General Counsel, testified that the military officers’ “identities would be threatened” if publicly disclosed but admitted that Under Secretary of Defense Mike Vickers released one of the names to Mark Boal.

According to sworn testimony from CIA Information Review Officer Martha Lutz, releasing of this type of information could provide an “unnecessary security and counterintelligence risk”:

Nonetheless, I can represent to the Court that the absolute protection for officers’ identities that Congress provided in the CIA Act is extremely important to the functioning of the Agency and the safety and security of its employees. This is true even for the identities of officers who are not undercover, and it is also true with respect to the first names of undercover officers. While such identifying information may not be classified in isolation, the widespread public release of this information creates an unnecessary security and counterintelligence risk for the Agency and its officers.

In its brief seeking to deny Judicial Watch access to the names of the CIA operatives, the government asserts that it had protected the operatives’ confidentiality by asking the filmmakers not to share the names. In its cross motion, however, JW responds that the government has provided no evidence that it asked the filmmakers to sign a non-disclosure agreement, or any other contract that would prevent them from sharing the names as required under law. In addition, the government has provided no evidence that either Boal or Bigelow underwent background checks or received security clearances before being provided the information the DOD and CIA now claim is too sensitive for public disclosure.

“The Obama administration now confirms to a federal court that it released sensitive information to help with a film that was set to portray Barack Obama as ‘gutsy.’  If this is true, then the Obama administration was lying to the American people when it said the leaks were no big deal,” said Judicial Watch President Tom Fitton. “The public has a right to get to the bottom of this scandal and the Obama administration should comply with the open records law and disclose the names that were leaked.”

Judicial Watch initially launched its investigation of the filmmakers’ meetings with the Obama administration following press reports suggesting that the Obama administration may have leaked classified information to the director as source material for Bigelow’s film.

In August 2011, New York Times columnist Maureen Dowd wrote that the information leak was originally designed to help the Obama 2012 presidential reelection campaign: “The White House is also counting on the Kathryn Bigelow and Mark Boal big-screen version of the killing of Bin Laden to counter Obama’s growing reputation as ineffectual. The Sony film by the Oscar-winning pair who made ‘The Hurt Locker’ will no doubt reflect the president’s cool, gutsy decision against shaky odds.”

Judicial Watch’s counter motion for summary judgment, filed in the United States District Court for the District of Colombia, petitions the court for an oral hearing on the opposing motions.

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