Judicial Watch • Department of Defense

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On June 17, 2014, Judicial Watch filed a Freedom of Information Act (FOIA) lawsuit against the United States Department of Defense (DOD) to obtain records of communications relating to its May 2, 2011, FOIA request for bin Laden death photographs and videos (Judicial Watch v U.S. Department of Defense (No. 1:14-cv-01027)).

Judicial Watch filed its lawsuit in accordance with a June 7, 2013, FOIA request seeking the following:

All records of communications concerning, regarding, or relating to a FOIA request (Control No. 11-F-0931) dated May 2, 2011, filed by Judicial Watch with the DOD office of Freedom of Information (OFOI). The time frame for this request is May 2, 2011, to September 26, 2011.

On May 2, 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 with the CIA. When neither the DOD nor the CIA complied with the FOIA requests within the 20 business days required by law, Judicial Watch, in June, 2011, filed FOIA lawsuits against both agencies.

(Washington, DC) – Judicial Watch announced today that on September 5, 2013, it filed a Freedom of Information Act (FOIA) lawsuit against the U.S. Department of Defense (DOD) for records relating to a 2011 directive by U.S. Special Operations Commander, Admiral William McRaven, to purge DOD’s systems of all records about the Navy SEAL raid on Osama bin Laden’s compound, and transfer them to the CIA, where they could be shielded from Freedom of Information Act (FOIA) requests (Judicial Watch v. U.S. Dept. of Defense (No. 1:13-cv-01343)).

All records concerning, regarding, or relating to Admiral McRaven’s 2011 directive to purge USSOCOM systems of all records related to the operation leading to the death of Usama bin Laden on or about May 1, 2011Pursuant to its June 7, 2013, FOIA request, Judicial Watch seeks access to the following records:

The United States Special Operations Command (USSOCOM) acknowledged receipt of Judicial Watch’s FOIA request by a letter dated July 1, 2013. By law, a response was due by July 30, 2013. To date, USSOCOM has failed to respond.

The secret move by McRaven to shield the information from public disclosure was first revealed in single passage at the end of a 2011 draft report by the Pentagon’s inspector general (IG) examining whether the Obama administration gave special access to Hollywood executives planning the film “Zero Dark Thirty.” According the draft report, “ADM McRaven also directed that the names and photographs associated with the raid not be released. This effort included purging the combatant command’s system of all records related to the operation and providing these records to another Government Agency.” According to an Associated Press report, the “Government Agency” was the CIA.  The reference to the document purge did not appear in the final IG report, which was finally published on Friday, June 14, 2013.

McRaven’s directive sent the only copies of the military’s records about the raid to the CIA, which has special authority to prevent the release of “operational files” in ways that often cannot be effectively challenged in federal courts. Under federal rules, transferring government records from one executive agency to another must be approved in writing by the National Archives and Records Administration. According to Archives spokesperson Miriam Kleiman, the Archives was not aware of any request from USSOCOM to transfer its files to the CIA.

The move by McRaven may have come, at least in part, in response to aggressive efforts by Judicial Watch to obtain images of the bin Laden raid that the Obama administration had refused to disclose. 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.  In the course of the litigation, the DOD denied that it had any documents and did not disclose that it had transferred any documents to the CIA.

On April 26, 2012, U.S. District Court Judge James Boasberg accepted the Obama administration arguments, ruling 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 affirmedthe District Court decision while conceding that the documents may not have been properly classified.

On August, 19, 2013, Judicial Watch announced that it had filed a certiorari petition with the Supreme Court of the United States to review the Appeals Court ruling.

“The fact that the Obama administration has gone into a full stonewall mode about this bin Laden document purge raises serious questions as to what it is hiding,” said Judicial Watch President Tom Fitton. “In our experience, government officials with nothing to hide don’t hide things.”

Defense Document Suggests Colonists Fighting British Rule were members of “extremist movement” 

(Washington, DC) – Judicial Watch announced today that it has obtained educational materials from the Department of Defense (DOD) depicting conservative organizations as “hate groups” and advising students to be aware that “many extremists will talk of individual liberties, states’ rights, and how to make the world a better place.” The documents repeatedly cite the leftwing Southern Poverty Law Center (SPLC) as a resource for identifying “hate groups.”

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Judicial Watch obtained the documents in a response to a Freedom of Information Act request (FOIA) filed on April 8, 2013. The FOIA requested “Any and all records concerning, regarding, or related to the preparation and presentation of training materials on hate groups or hate crimes distributed or used by the Air Force.” Included in the 133 pages of lesson plans and PowerPoint slides provided by the Air Force is a January 2013 Defense Equal Opportunity Management Institute “student guide” entitled “Extremism.”  The document says that it is “for training purposes only” and “do not use on the job.” Highlights include:

  • The document defines extremists as “a person who advocates the use of force or violence; advocates supremacist causes based on race, ethnicity, religion, gender, or national origin; or otherwise engages to illegally deprive individuals or groups of their civil rights.”
  • A statement that “Nowadays, instead of dressing in sheets or publically espousing hate messages, many extremists will talk of individual liberties, states’ rights, and how to make the world a better place.”
  • [W]hile not all extremist groups are hate groups, all hate groups are extremist groups.”
  • Under a section labeled “Extremist Ideologies” the document states, “In U.S. history, there are many examples of extremist ideologies and movements.  The colonists who sought to free themselves from British rule and the Confederate states who sought to secede from the Northern states are just two examples.”
  • In this same section, the document lists the 9/11 attack under a category of “Historical events.”
  • [A]ctive participationwith regard to extremist organizations is incompatible with military service and, is therefore prohibited.” [Emphasis in original]
  • The document details the “seven stages of hate” and sixteen “extremists’ traits.”
  • The SPLC is listed as a resource for information on hate groups and referenced several times throughout the guide.
  • Of the five organizations besides the SPLC listed as resources, one is an SPLC project (Teaching Tolerance) and one considers any politically or socially conservative movement to be a potential hate group (Political Research Associates).
  • Other than a mention of 9/11 and the Sudan, there is no discussion of Islamic extremism.

In April 2013, following a terrorist shooting at the Family Research Council (FRC) headquarters that occurred in August 2012, Judicial Watch filed multiple FOIA requests to determine what, if any, influence SPLC’s branding of hate groups had on government agencies. On its website, the SPLC has depicted FRC as a “hate group,” along with other such mainstream conservative organizations as the American Family Association, Concerned Women for America, and Coral Ridge Ministries. At the time of the shooting, FRC president Tony Perkins accused the SPLC of sparking the shooting, saying the shooter “was given a license to shoot … by organizations like the Southern Poverty Law Center.”

Though the document released today by Judicial Watch was obtained from the Air Force, it originated in a DOD office and is, therefore. thought likely to be used in other agency components.

“The Obama administration has a nasty habit of equating basic conservative values with terrorism.  And now, in a document full of claptrap, its Defense Department suggests that the Founding Fathers, and many conservative Americans, would not be welcome in today’s military,” said Judicial Watch president Tom Fitton.  “And it is striking that some the language in this new document echoes the IRS targeting language of conservative and Tea Party investigations.  After reviewing this document, one can’t help but worry for the future and morale of our nation’s armed forces.”

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.”

Obtained from the Department of Defense, these documents are 2 Joint Task Force GITMO Intelligence Information Reports (IIRs) from debriefs of detainees regarding children/juveniles/youths recruited by al-Qaida, and the targeting children for terror attacks.

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