1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Honorable Marcia S. Krieger 

Civil Action No. 11-cv-02544-MSK-KLM 

KEVIN D. EVANS, 

Plaintiff, 

v. 

CENTRAL INTELLIGENCE AGENCY, 

Defendant. 

______________________________________________________________________________ 

OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT 

______________________________________________________________________________ 

THIS MATTER comes before the Court pursuant to the Defendant’s (“CIA”) Motion 

for Summary Judgment (# 53), Mr. Evans’ response (# 56), and the CIA’s reply (# 57). 

 Mr. Evans1

 brings this action pursuant to the Freedom of Information Act (“FOIA”), 5 

U.S.C. § 552. In May 2011, Mr. Evans made a FOIA request on the CIA seeking “copies of the 

photographs of Osama Bin Laden’s deceased body taken during the raid in Abottabad, Pakistan.” 

In an Amended Complaint (# 40) filed in March 2014, Mr. Evans narrowed his request to “one 

photograph of the CIA’s choosing, taken of and depicting Osama (a/k/a Usama) Bin Laden 

 

1

 Mr. Evans appears to be pursuing this case pro se, insofar as he has signed his pleadings 

and filings himself. The Court notes, without necessarily finding, that Mr. Evans’ e-mail address 

on each pleading refers to a web domain belonging to the law firm of Seese, Evans, and Frankel, 

P.C., a named partner of which is Kevin D. Evans. Although pro se litigants are entitled to 

liberal construction of their pleadings, Haines v. Kerner, 404 U.S. 519, 520 (1972), the 10th

Circuit has held that licensed attorneys appearing pro se do not enjoy that same benefit. Mann v. 

Boatright, 477 F.3d 1140, 1148 n. 4 (10th Cir. 2007). Ultimately, this Court need not dwell on 

whether Mr. Evans is entitled to the liberal construction afforded pro se parties, as the outcome 

of this proceeding would not change. 

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during or immediately after the May 2011 raid in Abottabad,” subject to redactions by the CIA 

“to exclude confidential or state secret information.” 

 Shortly after Mr. Evans commenced this action, the CIA moved to stay the action due to 

the pendency of litigation over a similar FOIA request in the District of Columbia, Judicial 

Watch, Inc. v. U.S. Dept. of Defense, 857 F.Supp.2d 44 (D.D.C. 2012). The Court granted the 

stay, with limited exceptions, pending final resolution of the Judicial Watch case. In April 2012, 

the District Court for the District of Columbia granted summary judgment in favor of the 

Government, finding that the CIA had properly invoked FOIA’s Exemption 1 (permitting 

withholding of records “specifically authorized under . . . an Executive Order to be kept secret in 

the interest of national defense”) in refusing to turn over the photographs. Id., 857 F.Supp.2d at 

55, citing 5 U.S.C. § 552(b)(1). The court found that the photographs in question were properly 

classified as “top secret” pursuant to Executive Order 13526 (2009), id. at 55-60, and that the 

CIA’s contention that the release of the images “reasonably could be expected to cause 

exceptionally grave damage to the national security” was “comprehensive, logical, and 

plausible,” id. at 60-64. 

 Judicial Watch appealed the denial to the Court of Appeals for the District of Columbia 

Circuit. On May 21, 2013, that court affirmed the trial court’s grant of summary judgment, 

adopting essentially the same reasoning. Judicial Watch, Inc. v. U.S. Dept. of Defense, 715 F.3d 

937 (D.C. Cir. 2013). Judicial Watch petitioned the Supreme Court for certiorari, but that 

request was denied in January 2014. Judicial Watch, Inc. v. Dept. of Defense, 134 S.Ct. 900 

(2014) (mem.). 

 The CIA then filed the instant Motion for Summary Judgment (# 19) in this case. It 

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asserts essentially the same arguments and evidence it previously presented to the District Court 

for the District of Columbia and the D.C. Circuit. In response (# 8), Mr. Evans does not directly 

address the reasoning of the Judicial Watch cases; rather, his argument here turns entirely on the 

fact that, in or about May 2011, CIA Director Leon Panetta made comments to the effect that he 

believed that “ultimately a photograph would be presented to the public,” and that “I think we 

have to reveal to the rest of the world the fact that we were able to get him and kill him.” Mr. 

Evans argues that Mr. Panetta’s comments “create a genuine issue of fact” preventing summary 

judgment where “the Director of the Agency in question takes a position that disclosure would 

be forthcoming, only to be contradicted by a subsequent position advanced by the Agency in the 

face of a FOIA request.” 

 The Court need not engage in recitations of the familiar summary judgment standard or 

extensive analyses of FOIA to resolve this matter; to the extent necessary, the Court fully adopts 

the reasoning of both Judicial Watch opinions. The sole question presented here is whether Mr. 

Panetta’s predictions about future public access to the photographs, made in a television 

interview three days after the Abottabad raid, somehow creates a genuine dispute of fact as to an 

essential element of a challenge to an agency’s invocation of FOIA Exemption 1. 

As the Judicial Watch opinions note, the CIA need only show that the photographs were 

properly classified -- that is, that the procedural requirements for classification were met and that 

disclosure of the records could reasonably be expected to cause grave damage to national 

security). Judicial Watch, 857 F.Supp.2d at 55, 60. Mr. Panetta’s comments do not bear on 

those questions. Obviously, Mr. Panetta’s remarks do not address the procedural classification 

of the documents, and his stated belief that a photograph would eventually be released makes no 

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comment on the question of whether such a release would be undertaken regardless of its 

perceived effect on national security. Rather, it is obvious that Mr. Panetta was making a 

prediction about what was likely to happen given the public and political pressure he anticipated 

would surround the question. That prediction is entirely irrelevant to the question of whether the 

CIA’s subsequent invocation of Exemption 1 to deny Mr. Evans’ FOIA request was proper.2 

 

22 Moreover, the Court takes judicial notice of the fact that the very same source Mr. Evans 

relies upon for the text of Mr. Panetta’s statement, www.nbcnews.com, published a story the day 

after Mr. Panetta’s remarks with the headline “Obama decides not to release bin Laden death 

photo.” http://www.nbcnews.com/id/42900991/ns/world_news-death_of_bin_laden/t/obamadecides-not-release-bin-laden-death-photo/ (May 5, 2011). That story stated: 

President Barack Obama has decided not to release photographs of 

al-Qaida leader Osama bin Laden's body, the White House said 

Wednesday. 

The announcement came after a senior administration official told 

NBC News of the decision not to release post-mortem photos and 

Obama revealed the decision during an interview Wednesday with 

CBS' "60 Minutes." 

The White House had been weighing the release of a photo, in part 

to offer proof that bin Laden was killed during a raid on his 

compound early Monday. However, officials had cautioned that 

the photo was gruesome and could prove inflammatory. 

"It is 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. That's 

not who we are. We don’t trot out this stuff as trophies," Obama 

told CBS News, according to White House spokesman Jay Carney. 

"We don't need to spike the football. And I think that, given the 

graphic nature of these photos, it would create some national 

security risk," the president said, according to Carney's account. 

Thus, to the extent Mr. Evans contends that Mr. Panetta’s statements were somehow bound the 

CIA to release one or more photos, it is clear that Mr. Panetta’s comments were premature and 

subsequently overruled by Mr. Panetta’s boss. Thereafter, the official position of the United 

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 Accordingly, the CIA’s Motion for Summary Judgment (# 53) is GRANTED. The Clerk 

of the Court shall enter judgment in favor of the CIA on all claims in this action. 

 Dated this 2nd day of September, 2014. 

BY THE COURT: 

 

 Marcia S. Krieger 

 Chief United States District Judge 

 

States government became that the release of the photographs would indeed pose a national 

security risk, the very assertion they made here and in Judicial Watch. 

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