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DOD Changes its FOIA Policy on bin Laden Documents

August 25, 2011

Eluding the public, even after death?

All DOD FOIA requests for information about the raid that killed Osama Bin Laden are now being handled by the Secretary of Defense’s FOIA office, not the DOD components which created and maintain the documents, as is the usual DOD FOIA policy.

This week, the National Geospatial-Intelligence Agency responded to a National Security Archive FOIA request for photographs and satellite images of Abbottabad, Pakistan and the compound where bin Laden was killed by stating:

The Office of the Secretary of Defense (OSD) FOIA office “taking over” requests from other DOD components is unusual but not unprecedented.  It occurred for requests for documents about the 1993 Waco siege, and more recently, for requests for documents about military detainees.

Generally, OSD FOIA is one of the better FOIA offices in the federal government.  It reasonably releases a large quantity of documents at a decent pace without egregious redactions.  So the fact that OSD FOIA is taking over FOIA requests for the OBL raid is not bad news for FOIA requesters in and of itself.

But its not necessarily a good thing either.  In all likelihood, this policy change is in relation to the FOIA lawsuit that Judicial Watch filed against the DOD seeking the death photos of Bin Laden.  The Secretary of Defense FOIA office is taking over the bin Laden requests because it is fearful of another DOD component  “improperly” releasing a document that it is arguing in court should be secret.  The DOD’s arguments for withholding the OBL death photos from the public (which I have previously written about) should become more clear when it files its motion for a summary judgment on or before September 26, 1011.

One very important sentence from the recent New Yorker account of the bin Laden raid written by Nicholas Schmidle (son of Marine Lt. General Robert E. “Rooster” Schmidle Jr., Commanding Officer of Special Purpose Marine Air-Ground Task Force) may shed light on what the government’s argument could be.  And it would not be good for freedom of information advocates.

Schmidle writes, “The bin Laden mission—plotted at C.I.A. headquarters and authorized under C.I.A. legal statutes but conducted by Navy DEVGRU [SEAL] operators—brought the cooperation between the agency and the Pentagon to an even higher level.”

Colluding to conseal documents?

Of course, the situation is now even murkier because Leon Panetta has moved from Director of the CIA to the Secretary of Defense and David Petraeus has moved from the Commander of NATO forces in Afghanistan to the Director of CIA.

If the above sentence in the New Yorker is correct and the US government argues –and the judge rules– that the OBL raid was a CIA, rather than DOD raid and that that the documents produced for and by the raid belong solely to the CIA, then they will all be exempted from FOIA release under the CIA’s “operational exemption.”  –That’s all documents related to the raid.  Not just the death photos.

In fact, Schmidle’s article is an excellent example of why public access to these bin Laden raid documents is so importantWhoWhatWhy does an excellent job breaking down Schmidle’s sourcing and finds it sketchy, to say the least.  Schmidle appears to rely primarily on President Obama’s Counterterrorism Advisor John Brennan.  You may recall that Brennan,  a career CIA officer, has given continuously shifting stories of the raid, including the initial erroneous claim that bin Laden had hid behind his wife before being shot.

Furthermore, Shmidle’s article is misleading because it reads as if he had spoken with the soldiers who conducted the raid –he describes how their hearts were beating– when he had not.  He did not speak to anyone who had been at the compound in Abbottabad, only their Washington-based superiors.  His unnamed sources –who were not present at the compound– even disagree over key facts, such as if Osama bin Laden’s son had fired a shot at one of the SEALSs, or not.

Clearly, anonymous second-hand accounts “leaked” to magazines are not the most accurate sources for Americans to use to find out how the mastermind of September 11 died.  Documents are.  

Therefore, any American wanting to know the truth of the Abbottabad raid must hope that the Department of Defense does not let the CIA wrest the documents from its control; hope that the US Government does not argue that the raid documents should be entirely exempted from FOIA; hope that Judge Boasberg does not accept this argument; and hope that President Obama —who once called FOIA “the most prominent expression of a profound national commitment to ensuring an open Government”— does not forget his pledge to the public’s right to information.

  1. emily w. permalink
    August 25, 2011 1:28 pm

    excellent post Nate, thanks for sharing. I agree entirely with you, instead of relying on leaked information from soldiers and murky details to understand what happened to Osama bin Laden, we should have access to documents. Of course some documents will need to remain classified, but certainly some should be released in order to clarify the public record, especially regarding the murky and contradictory details already out there.

    The possible argument that the documents will be in CIA custody is disturbing. In my opinion, the CIA’s “operational exemption” is one of the most damaging pieces of legislation ever passed in regards to freedom of information, public oversight, and government accountability.

    • Nate Jones permalink
      August 25, 2011 2:00 pm

      Yep. Sadly, I agree. Bill Casey hoodwinked the Congress pretty good in 1984 when they acquiesced and gave the CIA its operational files exemption. A tremendous set back for the freedom of information. Documents should be evaluated released by their actual FOIA exemptions and classification considerations.

      Not by which folder they are put in when they are created.

      And yes, of course many of the UBL raid documents would need to be sanitized or withheld by FOIA/MDR. But they should go through that process, and not be automatically exempted by the CIA operational files exemption. (Especially if they were created by the DOD!!)

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