The United States Law Week

Obama Memos About Strike on Bin Laden Stay Secret

Jan. 25, 2019, 7:04 PM

Judicial Watch Inc. won’t get to see memos pertaining to President Obama’s decision to authorize a strike on Osama bin Laden’s compound in Pakistan.

The memos are protected from disclosure under the Freedom of Information Act by the statute’s presidential communications privilege, the U.S. Court of Appeals for the District of Columbia Circuit said Jan. 25.

The five memos deal with whether the raid would violate Pakistani law, when congress needed to be notified, the SEAL team’s options between capturing and killing bin Laden, what to do if bin Laden was captured, and options for burying him if he was killed.

The presidential communication privilege is fundamental to the operation of our government, the opinion by Judge Judith W. Rogers said. The president and his advisers must be free to explore options in the process of shaping policy, it said.

The bin Laden raid “cries out for confidentiality,” the court said. It required the president to exercise his judgment as the Commander and Chief of the U.S. on a highly sensitive subject with serious consequences for foreign relations, it said.

Judicial Watch claimed that the government said the documents memorialized the advice given the president, and were therefore prepared after the briefing and subject to disclosure. But under circuit precedent the privilege applies to documents reflecting presidential decision-making regardless of whether they were made before or after the decision, the court said.

Judges Sri Srinivasan and Douglas H. Ginsburg joined the opinion.

Lauren M. Burke, Washington, represented Judicial Watch. DOJ represented the government.

The case is Judicial Watch, Inc. v. DOD, 2019 BL 24290, D.C. Cir., No. 18-5017, 1/25/19.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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