In a hearing on Thursday, the United States government said that the images are still dangerous and should not be made public because they could incite violence against Americans.
“They’ll be used to inflame tensions. They’ll be used to inspire retaliatory attacks,” said Department of Justice attorney Robert Loeb in his opening statement.
The watchdog group Judicial Watch is appealing a lower court’s 2012 decision to side with the government in withholding 52 pictures and videos from the raid on bin Laden’s Abbottabad, Pakistan compound and burial in the North Arabian Sea.
Judicial Watch argued on Thursday that the Central Intelligence Agency did not distinguish between the different images of bin Laden when it refused to release all of them under Freedom of Information Act exemptions that protect national security. The Freedom of Information Act gives Americans the right to apply for previously unreleased documents from the government.
“The government failed to provide evidence that all 52 images of Osama bin Laden’s body could cause exceptional damage,” said Judicial Watch lawyer Michael Bekesha. “The government fails to appreciate the differences in images.”
Bekesha said his group is not seeking the release of “graphic and gruesome” pictures, but of less inflammatory depictions of the “dignified and solemn burial at sea.”
Presiding judges Judith Rogers and Merrick Garland expressed concerns that publicizing any of the photographs could lead to more armed attacks against Americans like the one on the U.S. Embassy in Libya in September 2012 that resulted in four deaths, including Ambassador Chris Stevens.
“Do you factor in who this is?” asked Judge Rogers.
Protestors in Libya and Egypt were reportedly demonstrating in response to an anti-Islamic YouTube movie.
The U.S. government released graphic postmortem pictures of Saddam Hussein’s sons Qusay and Uday. Both the government and court judges agreed that bin Laden is different.
“The government found that there was an overriding need to prove to Iraqi people that Saddam and his sons were dead,” Loeb told the court.
But in the case of bin Laden, the White House has long said they would not make the photos public.
“It’s important for us to make sure that very graphic photos of somebody who was shot in the head are not floating around as an incitement to additional violence or as a propaganda tool,” said U.S. President Barack Obama in an interview with CBS shortly after special forces killed bin Laden in May 2011.
Judicial Watch, a conservative-leaning group, said they filed the appeal in part to protect against government abuse of the system for classifying sensitive material.
“President Obama is asking the courts to rewrite Freedom of Information Act law to allow his administration to withhold documents simply because their disclosure may cause controversy. There is simply no legal precedent for this,” wrote Judicial Watch President Tom Fitton in a statement on the group’s Web site.
The panel of three judges did not say when they would rule on the appeal.
(Angela Simaan is a producer in Al Arabiya’s Washington bureau.)