The Justice Department has a new legal argument for why the government should be allowed to conceal the postmortem photographs of Osama bin Laden: It's doing the same thing with the CIA's classified drone program.
On Wednesday, the department filed court papers [PDF] asking a federal judge to rule against the government watchdog group Judicial Watch, which is suing for the release of "all photographs and/or video recordings" taken of bin Laden during the May 1, 2011 raid in Abbottabad. The filing rehashes many of the government's stated reasons for concealing the photographs (inciting violence in the Muslim world, revealing classified "operational methods," etc) but also leans on the CIA's refusal to acknowledge its widely-publicized drone program.
The argument confronts a claim by Judicial Watch that releasing the bin Laden photos would not pose a national security risk because everyone already knows the U.S. killed bin Laden. In response, the Justice Department says the CIA's drone program, like the U.S. raid in Abbottabad, is also public knowledge but that doesn't mean releasing information about it wouldn't jeopardize national security.
"The fact that the public may already speak freely of the existence of drones, or speculate openly that such a program may be directed in part or in whole by the CIA, does not emasculate the CIA’s warnings of harm were it forced to acknowledge officially the existence or nonexistence of requested records," reads the filing.
It's the sort of argument that makes government transparency advocates squeamish. As The New York Times noted about the CIA's failure to acknowledge the drone program in October, "The secrecy compulsion often merely makes the government look silly ... But it can also hinder public debate of some of government’s most hotly contested actions." Now, turns out, the Justice Department is using the government's much-pilloried refusal to acknowledge the widely-known drone program to justify its withholding of the bin Laden photos, creating a kind of slippery slope of secrecy.
Time will tell if U.S. District Judge James Boasberg will find the argument reasonable. As The Blog of Legal Times notes, Judicial Watch has until February to respond to the Justice Department's arguments.