WASHINGTON (CN) — Nearly seven years after Navy SEALs killed Osama bin Laden, a federal judge ruled Tuesday that details used to green-light the 2011 raid on his compound in Abbottabad, Pakistan, can remain secret.
U.S. District Judge Reggie Walton said that five Department of Defense and CIA memoranda prepared by President Obama’s senior advisers to guide his decision on the raid are protected by the presidential communications privilege.
Judicial Watch requested the memos through the Freedom of Information Act, saying shielding them from public view would conceal conclusions reached about the raid’s legality and create a “secret law” for covert military operations to come.
Walton acknowledged that FOIA exemption 5, which the government invoked to withhold the records, is not intended to protect policy-related documents from disclosure. But he said the memos do not fit that bill.
“The five requested memoranda ‘are not controlling statements of policy that agencies rely upon in discharging their missions[,]’ but rather, constitute ‘legal advice that was briefed to the President and his closest advisors for the purpose of providing an understanding of the legal implications associated with taking certain courses of action,'” the 24-page ruling states.
Walton said the Pentagon and CIA sufficiently demonstrated a need to protect classified, discrete information contained in the records, and that the attorney-client, deliberative process and presidential communications privileges all shield the material from disclosure.
Judicial Watch asked for a memorandum written by then-Pentagon General Counsel Jeh Johnson about potential violations of Pakistani sovereignty during efforts to seek, capture or kill bin Laden, and another memo by former CIA General Counsel Stephen Preston about when the administration should notify Congress about such efforts.
It also sought three memos from former National Security Council legal adviser Mary DeRosa, about plans to detain bin Laden should the SELA capture him, the option of going into the raid with the intent to kill him, and options for his burial.
It also asked for all records related to the memos.
To protect details about the raid, the Pentagon and CIA enlisted the help of Antoinette Shiner, a CIA information review officer with top secret security clearance, who said in a declaration that the memos contain confidential legal advice, “not controlling statements of policy that agencies rely upon in discharging their missions,” Walton wrote, citing Shiner’s declaration.
“‘Rather, the memoranda memorialize legal advice that was briefed to the President and his closest advisors for the purpose of providing an understanding of the legal implications associated with taking certain courses of action, which served as one consideration, among others, weighed by the President and his national security advisors in advance of the President’s decision to authorize the raid on bin Laden’s compound.’”
Shiner concluded, along with a declaration from Mark Herrington from the Office of General Counsel, that disclosure of the memos could undermine and chill deliberations that would allow the president to obtain candid opinions from senior advisers.
The government argued, and Walton concurred, that such disclosures would chill the offering of legal advice and “would diminish the quality of legal representation provided by government attorneys because clients would be reluctant to freely and accurately communicate factual information, questions, or concerns for fear that those discussions would be publicly disclosed.”
So Waltoun found the memoranda protected by attorney-client privilege.
Citing Shiner’s declaration again, Walton concluded that the memos should be protected as classified, discrete information.
”Disclosure of this information could reasonably be expected to harm national security because it would reveal classified intelligence activities, sources and methods associated with counterterrorism operations in a foreign country,'” the ruling states.
Judicial Watch did not respond to an emailed request for comment.