Infusing the Anemic Official Record on Osama bin Laden, One Document at a Time

McRaven’s order to destroy the photos was first mentioned in a 2011 draft Pentagon IG report examining whether the Obama administration gave special access to Hollywood executives planning the film “Zero Dark Thirty.”

In February 2014 a FOIA lawsuit brought against the Department of Defense by Judicial Watch spurred the declassification of documents that showed U.S. Special Operations Commander, Admiral William McRaven, ordered the immediate destruction of any photos of the death of Osama bin Laden. The documents showed that on May 13, 2011, McRaven told subordinates, only hours after Judicial Watch issued a press release stating they would be filing suit for the records, that any photos should have already been turned over to the CIA –presumably so they could be placed in operational files out of reach of the FOIA (more on this terrible exemption[1] below) – and if anyone still had access to photos, to “destroy them immediately or get them to the [redacted].”

This, sadly, is symptomatic of how difficult it is to get documents – any documents – on Osama bin Laden declassified by the US government. This is also why the Archive is happy to publicize a trio of documents our office recently received from the Department of State (albeit after nearly a decade wait and all were withheld in part) on bin Laden’s location from September 1, 2001, through October 15, 2001.

The first document is a Secret Department of State cable dated September 20, 2001, from the US Embassy in Caracas, Venezuela, subject: “Reported Information Related to NY and WDC Terrorist Attacks.” The memo contains three tips on Osama bin Laden’s location, the first of which was probably correct. The tip was delivered via a two-page fax that an Israeli supporter sent the embassy; the first page a cover sheet, the second a map of Afghanistan downloaded from [redacted], accompanied by a hand-written note in Spanish, and a drawing of a clay pot with the Star of David on it.

Translated, the note reads:

Location of Osama bin Laden, mountains of Panjab in underground shelters. He has contacts in the city of Panjab and Kabul. He has 15 personal bodyguards. The paths and roads (to his location) contain anti-personnel mines. In consequence, the cost of a ground operation would be high in respect to assault troops and since this would warn him to flee apparently with two airplanes and a runway. It is advisable to use cruise missiles without nuclear warheads.”

[Redacted] is not real, nor is this report for money. It is for the gratitude to the American people for helping support Israel and is a way of helping against this crazy terrorist and neutralizing him. My sincerest condolences for what happened. May Jehova bless and guide you. Shalom [redacted].

Reported Information Related to NY and WDC Terrorist Attacks.

Credible confirmation of bin Laden’s presence in Afghanistan in the Panjab-Kabul area during and after 9/11 is provided, among other things, by testimony from one of bin Laden’s son-in-laws, Abu Ghaith. During Abu Ghaith’s 2014 terrorism trial he swore that bin Laden was in Afghanistan in September 2001, and that he watched video of the 9/11 attacks in Kabul. Another account comes from Pakistani orthopedic surgeon, Amer Aziz, who has said he treated bin Laden in November 2001 near Jalalabad, Afghanistan. And of course, intelligence that Osama bin Laden was hiding in the mountains of Tora Bora, Afghanistan in late 2001 led to the infamous Battle of Tora Bora in December of 2001, from which bin Laden escaped. The 9/11 Commission Report makes no mention of his whereabouts at this time.

A second declassified document concerning bin Laden’s location is a Secret September 21, 2001, cable from the US Embassy in Moscow detailing a tip from [redacted]. [Redacted] claims to have visited the US Embassy there two or three times in the preceding six months to obtain a non-immigrant Visa, and also professed to know from telephone conversations with family members in Tehran, Iran that bin Laden and 100-200 of his supporters were located in Sarakhs, Iran, near the Iranian border with Afghanistan. The tipster also reported that bin Laden and his camp had recently crossed the border into Iran to avoid an expected US military attack against their camps in Afghanistan.

A third Secret cable, dated September 28, 2001, and also sent from the US Embassy in Moscow, details a tipster who, upon being paid for his information, would provide information on bin Laden’s specific location. The tipster, who claimed to be a trader along the Iranian-Armenian border, did say – gratis – that bin Laden had shaved his beard, had four bunkers in Iran that were 120 meters deep, as well as bunkers in Saudi Arabia and Afghanistan, and that since bin Laden was friends with Yasser Arafat, he could even be hiding in Israel. The informant also mentioned that he had known the September 11 attacks would take place approximately one month in advance, and had tried to contact the US Embassy in Armenia, but had only been laughed at by the Embassy personnel he spoke with.

“Bin Laden is friends with Yassar Arafat and could even hide in Israel.”

These three documents provide a fascinating glimpse into the multi-threaded, many-dead-ended search for bin Laden, and also underscore the frustrating reality that documents concerning Osama bin Laden have been notoriously difficult to get released.

The US government has only released documentary evidence recovered from the 2011 raid on bin Laden’s Abbottabad compound, which recovered 6,000 records, twice: a 2012 release by West Point’s Combating Terrorism Center (CTC) of 17 documents totaling 175 pages; and a 2015 release of 148 pages entered as evidence in a terrorism trial.

Records originating from the US government itself on the mission to kill the al-Qaeda leader, which are even scanter, include: National Geospatial Agency satellite images of the Abbottabad compound pre- and post-construction and the DOD’s official conceptual illustration of its floor plan; six official White House, Department of Defense, and Department of State briefings describing the contradictory initial accounts of the raid, including the oft-repeated but incorrect statement that bin Laden had used one of his wives as a human shield; emails and memos, released in response to a Judicial Watch FOIA request, detailing Zero Dark Thirty director Kathryn Bigelow’s and screenwriter Mark Boal’s extensive access to CIA Deputy Director Mike Morell, DOD Under Secretary of Defense for Intelligence Michael Vickers, and five CIA and military operatives involved in the raid, whose identities remain concealed from the public; and the dramatic 16-page transcript of Vickers’ interview with Bigelow and Boal on July 15, 2011, in which the DOD Under Secretary describes in detail the planning for the bin Laden mission and the intelligence uncertainties (40 percent, 60 percent, 95 percent) about bin Laden being at the compound.

The only documents about the raid yet released in response to a FOIA request are ten emails relating to bin Laden’s burial at sea. One remarkable document included in the release is a May 2, 2011, 2:02 AM email – stating simply, “Sir, FEDEX delivered the package.” – that confirmed that bin Laden’s body had been transferred to the USS Carl Vinson somewhere in the North Arabian Sea.

“FEDEX delivered the package. Both trucks are safely enroute home base.”

A large part of the reason the declassified record is so meager has to do with the transition of many records on bin Laden from the DOD to the CIA in 2013.

Documents concerning Osama bin Laden have been notoriously difficult to get declassified.

The transition was preceded by a 2011 announcement by the Office of the Secretary of Defense (OSD) that it would be handling all FOIA requests concerning bin Laden DOD-wide. Some speculated this was because OSD was concerned another DOD component would “improperly” release a document that OSD argued in court should be secret.

Concern about what OSD would do with the DOD-wide records in its possession increased in 2013, when an Associated Press article by Richard Larner revealed that the Defense Department was in the process of sending all of its records on the Osama bin Laden raid to the CIA, effectively sealing them into the “FOIA black hole” of government secrecy. The transfer ensured that the files would be placed in the CIA’s operational records, a records system that –due to the 1984 CIA Operational Files exemption— is not subject to the FOIA and is a vortex for anyone trying to access the files within. The move prevented the public from accessing the official record about the raid, and bypassed several important federal records keeping procedures in the process.

Upset by the Pentagon and the White House’s open-door policy with Hollywood‘s Zero Dark Thirty filmmakers about the raid to capture bin Laden, misleading statements in press conferences, leaks of national security information to magazines, and the official administration position that any official release of documents could harm US national security, the Archive published an electronic briefing book in 2013 documenting the public’s attenuated record of the most important American military action of the twenty-first century. The officially disclosed record is anemic. And thanks to the DOD’s transfer of files to the CIA, it’s likely to stay that way.

For its part, the CIA recently denied the Archive’s mandatory declassification review (MDR) request for a widely circulated (and reported) memo concerning bin Laden’s capture, citing its operational files exemption. In a decision unfortunately upheld by the Interagency Security Classification Appeals Panel, the CIA denied the Archive’s request for a September 2010 memo entitled “Anatomy of a Lead,” chronicling how the the Agency identified Abu Ahmed al-Kuwaiti, bin Laden’s courier who led the U.S. to him, on the grounds that if such records existed, they would be contained in the CIA’s operational files, and exempt from search and review.

The CIA frustratingly claimed the operational files exemption applied to this important document even though the memo was referenced in the Associated Press article “Osama Bin Laden’s Hunter: CIA Analyst Examined,” which noted that the CIA successfully lobbied Congress with the intelligence presented in the memo and received tens of millions of dollars to support the growing intelligence effort. This document was also, upon information and belief, included in the 6 million pages reviewed to produce the Senate Torture Report. As such, it cannot be withheld under the CIA’s operational files exemption.[2]

And yet it was.

The Department of State’s recent declassification of cables concerning bin Laden’s whereabouts are to be commended. They are a drop in the bucket, however, compared to the vast swaths of information that remains obfuscated by the CIA’s damaging operational files exemption. One route either the DOD or CIA could take to make more official information on bin Laden and his death available to the public would be to release a review similar to either the 1980 Holloway Report — conducted by the Joint Chiefs of Staff to investigate the failed Iranian hostage rescue attempt, Operation Eagle Claw — or the 1997 review of the disastrous October 3-4, 1993 Army Ranger defeat in Somalia. Considering the significant success of the Special Forces in the bin Laden raid, such a publication would be in both the government’s and the public interest.

[1] The National Security Archive and others, including OpenTheGovernment.org, Steve Aftergood of Secrecy News, and Douglas Cox from DOCEX BLOG, recently submitted comments suggesting which CIA operational files should be removed from their exempted status. The CIA is in the process of conducting its third decennial review of its operational files, which is required by the CIA Information Act of 1984, to “include consideration of the historical value or other public interest in the subject matter of the particular category of files or portions thereof and the potential for declassifying a significant part of the information contained therein.” The Archive highlighted the need for the CIA to grant the public the ability to request search and review of the Clandestine Service History Program files (the second decennial review in 2005 added a new category of exemption of Policy and Management Files “Including Clandestine Service History Program files”).

[2] 50 USC 431(c)(3) specifically provides that “the specific subject matter of an investigation by the congressional intelligence committees, the Intelligence Oversight Board, the Department of Justice, the Office of General Counsel of the Central Intelligence Agency, the Office of Inspector General of the Central Intelligence Agency, or the Office of the Director of National Intelligence for any impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity” shall continue to be subject to search and review. The Archive used this very rule to successfully argue for the release of over 100 CIA documents on 9/11 that were mentioned in the footnotes of the the 9/11 Commission Report, which Florida ex-Senator Bob Graham is still fighting to have the final 28 pages — allegedly concerning Saudi involvement in the plot — declassified.