Herbert Dyer, Jr.

A Washington, D.C. federal appeals court has agreed to hear the case filed by Judicial Watch to release all 52 photographs of a dead Osama bin Laden and his burial at sea. However, judging from the in-court questioning by the judges, it is unlikely that they will overturn a lower court's decision to keep the pictures out of the public domain. .

Judicial Watch is a conservative watchdog group that argues that keeping the photos secret undermines the Obama administration's transparency claims. In court filings last month, they argued that Bin Laden's dead body pictures "depict more than just a bloody mess." The CIA has custody and control of the photos, some of which show what it deems innocuous images of bin Laden's body being prepared for burial while others show the actual burial at sea itself.

Michael Bekesha is an attorney for Judicial Watch. He argues that there is "no apparent nexus" between secret or classified intelligence activities and photos which show bin Laden's burial or preparation for burial. He has stated also that the Obama administration has not satisfactorily shown precisely how the images, even the non-graphic ones, would or could be reasonably expected to "cause identifiable or describable exceptionally grave damage to national security," which is, of course, the government's main objection to their release.

Agreeing with Judicial Watch , in part, Judge Merrick Garland said today that Judicial Watch's focus on the "least dangerous of the photos" (body preparation and at-sea burial) was probably the right approach. However, he allowed that it was within the executive branch's prerogative and rights to assert national security worries, but only if it gave specific evidence and examples of how national security might be compromised.

"Why should we not defer to them?" he asked. But then Judge Garland himself appeared to not be up to speed on whole issue of terrorist reactions to perceived “insults.” For example, the good judge wrongly stated that U.S. Ambassador to Libya Chris Stevens was killed in Benghazi during spontaneous riots sparked by the release of a YouTube video. He also mistakenly used other terrorist acts against Americans because of an inaccurate 2005 Newsweek report which suggested that a Koran was flushed down a toilet at a detention facility in Guantanamo Bay, Cuba.

One of the government's lawyers did not attempt to disabuse the judge of his wrong perceptions and understandings in either case. Instead, Robert M. Loeb simply reiterated that even the photos of bin Laden being buried at sea would cause national security problems for the United States. Terrorists,would likely claim that the US failed to follow Islamic law and/or mistreated bin Laden's body. A serious “backlash” or “blowback” against the US would surely follow, he said.

The case of the bodies of Saddam Hussein and his sons was raised by Judicial Watch. The government countered that releasing those photos was done specifically and precisely to prevent riots among the Iraqi people. The photos were released to prove that Saddam Hussein was dead. Here, in the case of bin Laden, there is no question that he is dead.

The court's decision is not expected for several months.


Here again we have demonstrated yet another case of hypocrisy on the part of the Obama administration.

I must come down on the side of Judicial Watch, especially with regard to the “transparency” argument. Obama has loudly and often proclaimed that his administration would be the “most transparent in history;” that he would conduct meetings (of non-classified issues) on C-Span; that his door would always be open to input from the public.

In this case, we do not necessarily have to see the so-called “bloody mess” that is bin Laden's freshly killed corpse. But at least one picture of him in death would put to rest murmurs, rumblings, suspicions that the man is not really dead at all; that the CIA has him chained to some awful jail cell floor in one of its many “rendition” facilities worldwide.

That would serve two purposes: 1) It would put the conspiracy theorists out of business on this matter; and, it would fulfill at least one of the president's many ever receding and fleeting promises.

Personally, I would also like to know why it was absolutely imperative to kill Osama bin Laden, rather than simply capture him alive. From all accounts, he could have been simply arrested. But then, that would mean he would have to be tried in a court, civilian or otherwise, where lots of uncomfortable historical and current issues might be raised?