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"Security review" and the First Amendment.

 The C-17 cargo plane was 10 minutes from its drop zone When the rear
 door opened onto the night sky high above Afghanistan. Frigid air burst
 into the cabin, washing over food boxes that stood like soldiers at
 attention before an American flag.

 Crouching before the door, his oxygen mask pressing hard against his
 face, a staff sergeant named Paul signaled that the plane was one minute
 from its target. Suddenly, with a rush like a powerful freight train
 gathering speed, 42 boxes flew out the door, opening in midair and raining
 their contents -- bright yellow packets of food -- on the countryside

 Within seconds, the C-17 and two sister planes had spilled 51,000
 plastic packages, each containing two ready-to-eat meals, over a remote
 valley in northern Afghanistan. (1)

This eyewitness account by James Dao of the New York Times during the early stages of Operation Enduring Freedom was unusual because Dao was not at the Pentagon covering a briefing by Department of Defense officials. Instead, Dao was one of the first journalists to accompany American military personnel into Afghanistan. To gain a seat on the C-17, Dao agreed to a number of conditions, such as: 1) sharing his account with other media; 2) not reporting the full names of military personnel; 3) not reporting "sensitive" mission information such as altitude and route; and 4) "security review" of his story by military officials prior to its filing. (2)

There is no First Amendment right of access to a seat on a C-17. Nonetheless, does the First Amendment restrict the military's ability to attach conditions to coverage of military operations? Do reporters who gain access to sensitive information through participation in military press pools enter into "trust relationships" similar to government employees such as CIA agents? Are the substantive and procedural requirements of the First Amendment triggered by "security review" of news stories produced by journalists accompanying American troops?

There are no cases directly dealing with these questions. Despite the rhetoric of American journalists about the importance of independent coverage of military operations, the press has generally acquiesced to the military's restrictions on coverage. Only three cases have been brought by the press challenging restrictions on access to military activities. (3)

No case has ever been brought challenging "security review." In this Article, I accept the notion that the First Amendment right of access developed by the Supreme Court in the context of judicial proceedings does not transfer to wartime military operations. (4) Notwithstanding the limits on the right of access, I argue that "security review" is problematic under the First Amendment. Preventing access to places or government information is less harmful to free expression than government action that prevents or punishes publication of information the press has acquired. (5)

Due to the reluctance of the press to sue the government during wartime, judicial involvement in the relationship between the press and the military is highly unlikely. Also, the prospect of Congressional action is remote due to overwhelming public support for military control of information about wartime operations. (6) Thus, the press will have to infuse First Amendment values into its bargaining with the military.

Part I of the Article describes the Department of Defense Principles for News Media and their application to the early stages of Operation Enduring Freedom. Part II explores the problems of "security review," in particular the military's belief that it may impose this system because it controls access to the battlefield. (7)


A. Development
 Of the many myths fathered by the Vietnam War, probably the biggest was
 that we lost because of uncensored, free-ranging press coverage. But most
 professional officers believe that myth and still do. Young Turk generals
 coming into power, like Colin Powell and Norman Schwarzkopf, said never
 again would reporters roam free to criticize our wars.

--David H. Hackworth (8)

Journalists covering American military operations during the Gulf War were accompanied by military escorts, confined to pools, largely kept away from scenes of breaking news, and their pool reports were subject to "security review." Although many in the military regarded the system as successful, executives from leading news organizations complained bitterly to Defense Secretary Richard B. Cheney that in the future they could not "accept the limitations on access or the use of monitors to chill reporting." (9) Consequently, in late 1991 leading news organizations and military officials began negotiating a set of principles for future war coverage.

After eight months of negotiations, the parties agreed that "[o]pen and independent reporting will be the principal means of coverage" (10) and access will be provided to all major military units. Media pools were permissible for events in remote locations or where space was limited. Additionally, if a pool is the only feasible means of providing "early access" to a military operation, the pool should be as large as possible and disbanded within 24 to 36 hours. Military public affairs officers should act as liaisons and not interfere with the reporting process. Moreover, public affairs officers should be provided with facilities for the "timely" transmission of pool material, and these facilities should also be available for filing independent coverage. Where government facilities are unavailable, journalists can file by any other means, except when security in battlefield situations requires limiting the use of communications systems operated by news organizations. (11)

One of the most important principles is the following:
 Journalists in combat zones shall be credentialed by the U.S. military and
 shall be required to abide by a clear set of military security ground rules
 that protect U.S. Armed Forces and their operations. Violation of the
 ground rules may result in suspension of credentials and expulsion from the
 combat zone of the journalist involved. (12)

Journalists naturally want to stay near the scene of breaking news; the possibility of expulsion deters the reporting of information that is harmful to operational security. The principles, however, do not specify the role of "security review" in ensuring that reporters comply with ground rules. Journalists "wanted a statement saying, `News material--words and pictures--will not be subject to security review.'" (13) They believed that "security review" was unwarranted because "journalists in the battlefield can be trusted to act responsibly." (14) The Pentagon, however, refused; Pentagon spokesman Pete Williams said: "The military believes it must retain the option to review news material to avoid the inadvertent inclusion in news reports of information that would endanger troop safety or the success of a military mission. Any review system would be imposed only when operational security was a consideration." (15)

B. Press-Military Relations in Operation Enduring Freedom
 CNN is sensitive to reporting any information that could endanger lives or

--Editor's note at (16)

Immediately after the September 11 terrorist attack, American military public affairs officials began discussing when and how reporters could cover the military response. As it became obvious that the initial response would be launched from Navy ships located in the Arabian Sea, journalists began requesting access to those ships. The Navy's Office of Information advised journalists that when "embarks" were available, "their being in Bahrain would be key" to getting on the ships. (17) Shortly before the first strike on October 7, 2001, thirty-nine journalists who were in Bahrain were placed aboard four Navy ships; the journalists were asked "not to communicate with their home bureaus that they were being sent out to the ship because it would indicate a strike was imminent." (18) Once the first strike began, journalists were prevented from filing reports about the attack until all of the airplanes involved had returned to the carriers. (19)

Before journalists were placed on the ships, the ground rules for coverage were explained, including a restriction on the use of full names. (20) As Douglas Jehl of the New York Times reported from the aircraft carrier U.S.S. Enterprise:
 On the Enterprise there was a mood of high tension, but also apprehension.
 The rear admiral who commands the Enterprise battle group, and is the
 senior officer aboard this ship, said he feared that his work could put at
 risk the safety of his family back home in Norfolk, Va., if his name were
 widely known.

 Commanders on the Enterprise have adopted the posture of extraordinary
 caution in discussing the mission, declining even to allow their last names
 or those of their crew to be published. The admiral's fears are clearly
 widely shared. (21)

Despite the intense concern for security, news reports were not subjected to "security review." (22) Journalists were told that "security at the source" would be practiced, meaning that Navy personnel "would only talk about what could be written about." (23)

At the outset of this Article, I noted that James Dao's report of an Air Force mission over Afghanistan was subject to "security review." The policy of the Office of Assistant Secretary of Defense for Public Affairs ("OASD (PA)") is that commanders in the field may make "security review" a part of the ground rules for coverage of a specific operation. (24) The OASD (PA), however, strongly encourages commanders to explain carefully what can and cannot be reported and then to trust journalists to follow the rules. In a meeting with news media bureau chiefs, Rear Admiral Craig Quigley described the process of placing a television news crew on a submarine:
 I have a depth gauge on the submarine. I'm going to tell the videographer,
 you can't shoot that depth gauge. It is a classified instrument, so don't
 go there. So the camera guy goes got it, I'm going to slew my camera left
 over here to all the rest of the stuff, and that's all fine. So I've helped
 the cameraperson understand that I don't need to do a security review
 because everything that his lens can possibly see is going to be fine. Just
 stay away from the depth gauge, okay? (25)

Victoria Clarke, Assistant Secretary of Defense for Public Affairs, added that "[i]f all those guidelines, all those standards are set in advance it's a far better world than looking at stuff after the fact and saying you can't include this, you can't include that." (26) Nonetheless, Secretary of Defense Donald Rumsfeld told news media bureau chiefs that he could conceive of situations where journalists would not have access "unless they agreed beforehand that they would allow their work to be looked at and changed or censored, if you will, to use a harsh word." (27)

Prior to the news coverage of the C-17 humanitarian missions, crew members were briefed as to what could be disclosed and what should occur if classified information were inadvertently disclosed. (Journalists received a similar briefing.) In the event of an inadvertent disclosure, "[i]f something was taped, they [journalists] would be asked to rewind and tape over the problematic section. If it were a digital image, the crew would ask the journalist to delete that image." (28) Problems that could not be resolved on the scene would be "bumped up" to the Pentagon for a discussion between the OASD (PA) and the journalist's editor or news director. The final derision as to publication, though, rests with the news organization.

Commanders in the field do not have the authority to confiscate film, cameras, computers, and similar reporting equipment. (29) If a journalist insists on reporting information that is "classified or sensitive, after being asked not to," the commander can expel the journalist from the facility or area and deny further access. (30) Moreover, if the journalist relies on military communication equipment to file a story, use of that equipment can be denied.

C. The Ongoing Question of Access
 Media Executives Chafe At War Department Restrictions on Reporting: `Why
 Can't We Go on Doolittle Raid Over Tokyo?' Demands Head of ABC News

-- Parody headline (31)

The Department of Defense has sophisticated methods of presenting information about ongoing military actions. Military personnel prepare photographs and video, such as imagery of Special Forces operations in Afghanistan, for carefully rehearsed Pentagon briefings. This frustrates journalists who want to witness the action first hand and not appear to be operating as PNN--the Pentagon News Network. (32)

Even before the first strike against the Taliban on October 7, 2001, members of the press voiced concern about restricted access to military operations. (33) Since Operation Enduring Freedom began, journalists have complained about their lack of access to American forces, such as the special forces aboard the U.S.S. Kitty Hawk and ground forces in countries such as Uzbekistan. As Owen Ullman of USA Today told Victoria Clarke at a meeting of news media bureau chiefs:
 I would suggest to you that there is a linkage between perhaps losing the
 PR war and not allowing American news media to have greater access to cover
 the war and perhaps provide the fair balanced picture that you want. So I
 would suggest if you do care about how the war is being portrayed in this
 country and overseas, perhaps the problem is bottling up the news media.

Pentagon officials claim that this is a very unconventional war and the Pentagon is providing as much access as possible consistent with two variables: operational security and host-nation sensitivity. (35)

Journalists question whether any theory of open access endorsed by Pentagon officials will translate to access in the field. Tom DeFrank, who served as a public affairs officer at the Pentagon and is currently the Washington bureau chief for the New York Daily News, stated that access is an insoluble problem because of the "genetic wiring" of military officers who view "the media as a pitfall to be avoided rather than an opportunity to be exploited." (36) DeFrank continued by saying if an officer in the field gets conflicting advice from Pentagon public affairs officials "saying let's have as much access as we can and a three-star general saying, I don't want those people around here--who do you think ... [the officer is] going to listen to?" (37) Admiral Steve Pietropaoli, chief of Navy information, agreed with DeFrank, but claimed that Navy officers, who allowed little coverage of their Gulf War operations, now recognize that press coverage is essential to maintaining public support. (38) Clarke added that Secretary Rumsfeld believes that public support for the military "is absolutely critical." (39)

Portrayals of the press and the military as antagonists are myopic; the relationship has subtle nuances because the military needs press coverage to maintain public and congressional support. In turn, the press needs the military because of the latter's control over access to military installations, transportation, and communications equipment. But the press is at a distinct disadvantage in any negotiations over coverage because the military is under no legal obligation to allow the press to observe its actions. The terms and amount of press coverage largely reflect the attitudes of the President, Secretary of Defense, and military officers in the field.

Several factors explain why the press has generally not brought suit against the military. The suit over Gulf War media pools was brought by what may be described as alternative media. (40) Mainstream media did not support the suit because their lawyers regarded the case as difficult to win. (41) Moreover, mainstream media were included in the pools, so there was little incentive to help the disadvantaged media. Another factor is a fear of Pentagon retaliation. One media lawyer, who requested anonymity, stated: "It is obviously a question of some access is better than none, and people are reluctant to lose what they have by becoming rabble-rousers." (42) There are also competitive pressures that diminish the interest in fighting for principles. Clark Hoyt, Washington bureau chief for Knight-Ridder newspapers, claims that if "significant numbers of news organizations decide to play the game with the Pentagon, it puts anybody who won't do it at a tremendous competitive disadvantage." (43) Finally, suing the military during wartime is likely to further damage the public's image of the press, especially when popular support for the President and the military is widespread.

 [T]here's a long history of military censorship in this country. We
 wouldn't expect anything other than that in this case.

--Washington bureau chief to Victoria Clarke (44)

On October 17, 2001, the Society of Professional Journalists and other organizations sent a letter to Secretary Rumsfeld asking the military to prohibit "security review" of news content. The letter also requested that if review of news content occurred, it should only be for the "limited purpose of ensuring that troop movements and operations are properly protected...." (45) In short, the press prefers that "security review" not occur but will accept it as a condition of gaining access to military operations or facilities. As stated by Captain Tim Taylor of the Office of the Assistant Secretary of Defense for Public Affairs, if the ground rules for coverage of a naval operation include "security review," reporters have the option of "not getting on the ship." (46)

At the outset of this analysis of "security review," several points need emphasis. First, the military's authority to control access to the battlefield does not mean that the conditions attached to access are exempt from judicial review under separation of powers principles. As Judge Sand wrote in the Nation Magazine v. United States Department of Defense:
 [T]here could be little argument that a court would have the power to
 invalidate a constitutionally infirm regulation which explicitly made
 admission to a press pool dependent on the political content of a
 journalist's prior writings or which imposed racial or religious criteria
 for admission. The Court concludes that the mere fact that the regulations
 were promulgated by DOD to deal with press restrictions during military
 operations does not render the controversy nonjusticiable. (47)

Second, the unprotected status of speech causing "grave and irreparable danger" (48) to military security does not justify the military's use of imprecise methods to protect those interests. "The separation of legitimate from illegitimate speech calls for more sensitive tools...." (49) Finally, the press has a right to publish information not causing "grave and irreparable danger" to military security, even where the press has no constitutional or statutory authority to acquire the information. That is, the government had the power to withhold the Pentagon Papers from the press, but lacked the power to prohibit or punish publication of that information once it was leaked to the press. New York Times Co. v. United States (the Pentagon Papers case) hinged on the impact of publication of the documents, not on the means by which the newspapers acquired the documents. (50) Thus, the case left unanswered the question of whether or not agreements between the press and the military alter First Amendment rights.

A. Consent

In an article published in Army Lawyer, Captain William Wilcox defended the system of "security review" on the grounds that "the reporter has agreed to the condition to get some information to which that reporter would not otherwise have access." (51) Whether couched in terms of contract or some other legal doctrine concerning promises, a system of military "security review" is not valid just because the press agrees to it. The consent argument simply proves too much. Agreements are enforced because they comply with public policy, not because they are made.

1. Government Secrecy Agreements

In Snepp v. United States, (52) the Supreme Court held that a former CIA agent was bound to comply with the terms of a secrecy agreement requiring CIA pre-publication review of manuscripts intended for publication. (Snepp had published CIA-related material without submitting his manuscript for agency review.) Snepp refers only to the procedure that a CIA employee must follow; subsequent cases show that prepublication review must be completed in a timely manner and deletions are subject to judicial review.

In McGehee v. Casey, (53) a former CIA agent challenged the CIA's decision to censor portions of a manuscript he submitted for prepublication review. The Court of Appeals for the District of Columbia Circuit held that the CIA properly classified the censored portions of McGehee's manuscript. Significantly, the Court of Appeals believed that the CIA should justify its deletions with reasonable specificity, "demonstrating a logical connection between the deleted information and the reasons for classification." (54)

In Penguin Books USA, Inc. v. Walsh, (55) Jeffrey Toobin sought to publish a book about his work on the Iran-Contra investigation conducted by the Office of Independent Counsel (OIC). During his employment at OIC, Toobin signed nondisclosure agreements requiring prepublication review of manuscripts about the OIC. Although the CIA cleared Toobin's manuscript, the OIC refused to do so. The United States District Court for the Southern District of New York found that the OIC's classification of material did not withstand judicial scrutiny. Contrasting the CIA's standards at issue in McGehee with those of the OIC in this case, the court noted that the OIC's objections to Toobin's manuscript were "far from precise" and the OIC's procedures lacked the speedy review necessary in First Amendment cases. (56)

Snepp, McGehee and Penguin Books involve government employment, a context where First Amendment rights are attenuated. The government may take internal steps with its employees to protect its secrets, but there is a distinction between individuals who gain government employment -- and the accompanying access to information -- and the press, which only seeks access to information. The press, by constitutional design, is autonomous from the government. Although members of the press may be willing to compromise that autonomy, "security review" should be evaluated as a means of protecting the compelling interest in operational security, rather than accepted as a consequence of military-press bargaining.

National security values transcend contract principles or even government employment. As the Snepp Court indicated, "even in the absence of an express agreement" the CIA could have acted to protect national security. (57) For example, the government's power to prohibit or punish publication of certain atomic energy information extends to anyone in possession of that information, not just to those who work for the government. (58)

From a practical standpoint, a government agency's ability to exercise prepublication review is confined to those instances where it has a formal relationship with the communicator. For those communicators who have not consented to prepublication review, the government must take other steps to prevent or punish disclosure of sensitive information.

2. Agreements Between Reporters and Sources

In Cohen v. Cowles Media Co., (59) the Court held that a reporter's agreement to maintain the confidentiality of a source was subject to promissory estoppel law. Cohen, who worked for a political candidate, offered reporters information about a competing candidate on the condition that his identity would not be disclosed. Reporters for two newspapers agreed to this condition; the editors, however, decided that Cohen's name and role in the campaign should be published.

The Court found promissory estoppel to be a neutral law of general applicability that did not target the press. To Justice White, writing for the majority, the application of promissory estoppel did not punish the publication of truthful information. Rather, the state law simply required those making promises to keep them, and, instead of the government defining what could be published, "any restrictions that may be placed on the publication of truthful information are self-imposed." (60)

Although Cohen has been read expansively as supporting the waiver of First Amendment rights, (61) the case has limited applicability in the "security review" setting. First, "security review" singles out the press. Second, "security review" is based on the potential communicative impact of publication. And third, unlike agreements between two private parties, the military takes part in defining what may be published under a system of "security review."

Nonetheless, there is a vexing part of Cohen that is relevant to "security review." The Court believed the newspapers possibly engaged in illegal newsgathering by "making a promise that they did not honor." (62) An important principle in the Court's contemporary First Amendment doctrine is the following: the lawful acquisition of information is a factor defining the constitutional protection for publication of that information. (63) Cohen raises the possibility that reporters illegally acquire information when they break a promise to comply with conditions such as "security review." In another article I described the contours of legal newsgathering as being unclear; (64) the cases in which the Court treated newsgathering methods as legal did not involve promises made to gain access to information. Notwithstanding the lack of clarity in this area, it is doubtful that a reporter who breaks a promise to the military necessarily loses the protection of the First Amendment.

A focus on promises treats alike all actions which break the promise, without regard for legitimate justifications. (65) Consider the statement of Captain Wilcox: "If a news organization flouted the agreement and published without a security review, that would be in effect a breach of contract, and the military's recourse would be to deny future access." (66) "Security review" is not supposed to be used to suppress embarrassing information, but in the Gulf War embarrassing information was suppressed, such as a report about Navy pilots viewing pornographic films before leaving on missions. (67) Where "security review" is being misused, a journalist would have a legitimate reason to "flout the agreement."

In summary, the military's legitimate authority to protect secrecy, "contractually or otherwise," (68) is confined by the First Amendment. Even assuming that "security review" in the abstract is justified by a "trust relationship" between reporters and the military, the inherent problems with the practice of "security review" mandate its avoidance.

B. The Problems of Security Review
 I've never run into the news organization yet who is looking to put
 American forces at risk....

-Rear Admiral Craig R. Quigley (69)

The record concerning "security review" in the opening stages of Operation Enduring Freedom is too thin to support extended analysis. (70) The extensive record compiled during the Gulf War, however, demonstrates that "security review" is inherently flawed.

American journalists naturally are averse to government review of news stories, and "security review" in the Gulf War was frustrating because it delayed timely filing of stories and veered into image control. Consider the experience of Malcolm Browne of the New Fork Times and Frank Bruni of the Detroit Free Press who were in the pool covering F-117A Stealth aircraft. Browne recalls that he and Bruni wrote stories that were initially cleared by their escort officer, but problems arose when the wing commander made changes that had nothing to do with security. "In Frank's copy, the adjective `giddy,' used to describe the pilots, has been changed to `proud,' and in my story, the words `fighter-bomber' have been changed to `fighter.'" (71) To make newspaper deadlines throughout the United States, Bruni and Browne agreed to all the proposed changes on the condition that their copy would be dispatched promptly "to pool headquarters in Dhahran. This proves a forlorn hope. We learn the following day that our stories have been sent instead to officials at the Tonopah Test Range in Nevada-the home base of the Stealth fighters -- where everything we wrote has been deemed a breach of security." (72) More than 24 hours after they were written, the stories were finally cleared, "but of course, the war has already moved on, and our perishable dispatches are hopelessly stale." (73)

Pete Williams, Assistant Secretary of Defense for Public Affairs during the Gulf War, defended the system of "security review" by saying that it was not a system of "censorship" because the final decision to publish was left in the hands of journalists. Pentagon guidelines used during the Gulf War provided that the initial "security review" would be conducted at the scene by the public affairs escort; this review was to determine compliance with ground rules, and not to eliminate material that criticized the military or might cause embarrassment. If agreement between the escort and the journalist could not be reached, the disputed materials were sent to Dhahran for review by a news media representative and a military official. If no agreement could be reached in Dhahran, the materials were sent to the Pentagon where Williams reviewed the matter with the appropriate news executive. Pentagon guidelines provided for publication decisions to be "made by the originating reporter's news organization." (74) Williams claimed that of 1,351 print pool reports, only five reached his office in Washington; four were cleared within a few hours and the fifth was changed by the reporter's editor-in-chief who agreed to changes suggested by the Pentagon to protect intelligence procedures. (75)

William's account does not capture the dynamics of the Guff War system. First, print journalists were treated differently than television and radio journalists; print stories were subject to review while broadcasters were often able to broadcast live, and television tape in eight-millimeter format was not reviewed because the military had incompatible video equipment. (76) (This

disparate treatment of print and broadcast reports is especially strange given the military's fear that instantaneous broadcasts would be seen by the enemy.) Second, some reports were not cleared on grounds of security, but the same information was presented in detail during briefings by American military commanders. "The Pentagon is clearly eager to be the first to report the most newsworthy information." (77) Third, the review system chilled coverage. Frank Bruni of the Detroit Free Press stated: "If you have a situation where access is everything, and people in the same channels are looking at your stories, it's impossible not to be a little afraid that how much access you get will be affected by what you write." (78) Fourth, the system of review created delays, which where compounded by the military's requirement that stories be filed through military equipment. (79) The number of cases reaching Williams's office is misleading; with timeliness a critical factor, reporters would have an incentive to negotiate compromises with escorts rather than risk delay from the appeals process.

Despite Williams's rhetoric about "censorship," the Gulf War system was constitutionally flawed. In other contexts, the Supreme Court has emphasized that a system of prepublication review "avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system." (80) Strikingly, the Gulf War system had no specified brief period for a review or an appeal. News reports are such perishable commodities that the government can effectively suppress information just by delaying its publication. For practical purposes, the escort's decision to suppress something may be final because journalists would "play the game," as Browne and Bruni did, to meet their deadlines. And looming in the background is the journalist's fear of losing access to future military operations or the opportunity to interview senior officers.

Most importantly, the institutional affiliation of the escorts created incentives for the suppression of embarrassing material. Escorts understood that they "risked being called to task" by their commanders for negative stories. (81) (Escort officers in the field are naturally more attuned to the concerns of their commanders than to the concerns of Pentagon public affairs officials.) This institutional imperative to censor is not unique to military officers; it is inherent in any system where government officials engage in prepublication review. As Professor Thomas Emerson wrote long ago:
 The function of the censor is to censor. He has a professional interest in
 finding things to suppress. His career depends upon the record he makes. He
 is often acutely responsive to interests which demand suppression --
 interests which he himself represents -- and not so well attuned to the
 more scattered and less aggressive forces which support free expression....
 The long history of prior restraint reveals over and over again that the
 personal and institutional forces inherent in the system nearly always end
 in a stupid, unnecessary, and extreme suppression. (82)

In other settings involving prepublication review, judges play an important role in guarding against unwarranted censorship. As explained earlier, members of the press are reluctant to turn to the judiciary. Consequently, the military need not fear judicial review of actions preventing publication of embarrassing information. Suppression occurs "by a simple stroke of the pen." (83)

 The Constitution itself is neither a Freedom of Information Act nor an
 Official Secrets Act.

-Justice Potter Stewarts (84)

As Justice Stewart observed, the autonomy of the press cuts two ways. On the one hand, there is no constitutional right to require openness from the military. The access granted to the press by the military reflects the values and goals of political leaders such as the President and the Secretary of Defense, and the security concerns of commanders in the field. On the other hand, the government's power to restrict or punish publication of information obtained by the press is sharply limited. Accordingly, the constitutionally preferred method of protecting national security interests is for the government to guard its secrets through internal measures.

First Amendment rights are fragile. Conversely, the incentives for government officials to misuse mechanisms such as "security review" are powerful. Given this imbalance, "security review" of news stories from the battlefield should be avoided. Instead, the military should protect security by exercising care over what it discloses to the press. In addition, prior to allowing the press to observe military operations, the military should brief the press as to the types of information that, if published, would harm operational security. Once the ground rules are explained, the press should be left alone. As Colonel Lane Van de Steeg stated, "Bottom line -- trust is required. The media must trust us to give them access to what they can cover and we should trust them to obey the ground rules that they agree to." (85)

(1.) James Dao, 15-Hour Flight, 8-Second Job; Uncertain Success, N.Y. TIMES, Oct. 20, 2001, at B4. A longer version of Dao's pool report was posted on the World Wide Web by the News Service of the U.S. Air Forces in Europe. Jim Dao, C-17 Aircrews Fighting "War" on Hunger in Afghanistan, U.S. EUR. COMMAND MEDIA POOL, at (Oct. 19, 2001). In addition, Dao participated in a conference call interview with the Pentagon press corps after the article was posted on the USAFE Web site. See E-mail from Lt. Col. Edward S. Loomis, EUCOM Pub. Affairs, to the author (Nov. 7, 2001) (on file with author).

(2.) See E-mail from Lt. Col. Edward S. Loomis, EUCOM Pub. Affairs, to the author (Oct. 31, 2001) (on file with author). Journalists also had to undergo training for high altitude operations. See id.

(3.) See JB Pictures, Inc. v. U.S. Dep't of Def., 86 F.3d 236 (D.C. Cir. 1996) (affirming ruling that the press does not have a First Amendment right of access to an Air Force base where soldiers killed abroad are returned to the United States); Flynt v. Weinberger, 762 F.2d 134 (D.C. Cir. 1985) (per curiam) (affirming ruling that suit challenging restrictions on press access to invasion of Grenada was moot); Nation Magazine v. U.S. Dep't of Def., 762 F. Supp 1558 (S.D.N.Y. 1991) (dismissing complaint challenging restrictions on press access to military operations in Persian Gulf).

(4.) See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 599 (1980) (Stewart, J., concurring) (noting that a trial courtroom is a public place in "conspicuous contrast to a military base"). See generally Paul G. Cassell, Restrictions on Press Coverage of Military Operations: The Right of Access, Grenada, and "Off-the-Record Wars," 73 GEO. L.J. 931, 963-64 (1985) (concluding that there is no right of access); Rana Jazayerli, Note, War and the First Amendment: A Call for Legislation to Protect a Press' Right of Access to Military Operations, 35 COLUM. J. TRANSNAT'L L. 131 (1997) (concluding that legislation is necessary because courts are unlikely to resolve the issue). But see Kevin P. Kenealey, Comment, The Persian Gulf War and the Press: Is There a Constitutional Right of Access to Military Operations?, 87 NW. U. L. REV. 287 (1992) (concluding that restrictions during the Gulf War violated the First Amendment right of access).

(5.) See, e.g., Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 849 (1978) (Stewart, J., concurring) ("Though the government may deny access to information and punish its theft, government may not prohibit or punish the publication of that information once it falls into the hands of the press, unless the need for secrecy is manifestly overwhelming.").

(6.) See PEW RESEARCH CTR. FOR THE PEOPLE & THE PRESS, PUBLIC REMAINS STEADY IN FACE OF ANTHRAX SCARE, at display.php3?ReportID=139 (Oct. 15, 2001) (reporting that according to a public opinion poll in mid-October 2001 only 28% of respondents believe that decisions about how to report the war should be left to the press).

(7.) William A. Wilcox, Media Coverage of Military Operations: OPLAW Meets the First Amendment, ARMY LAW., May 1995, at 42, 51.

(8.) David H. Hackworth, Learning How to Cover a War: Both "Thought Control" and "No Control" Don't Work, NEWSWEEK, Dec. 21, 1992, at 32.

(9.) Howard Kurtz, News Chiefs Vow to Resist Pentagon War Coverage Rules in Future, WASH. POST, May 14, 1991, at A4. For different perspectives on press restrictions during the Gulf War, compare Malcolm W. Browne, The Military vs. the Press, N.Y. TIMES MAGAZINE, Mar. 3, 1991, at 27, with Pete Williams, View from the Pentagon: Let's Face It, This Was the Best War Coverage We've Ever Had, WASH. POST, Mar. 17, 1991, at D1. For background on the government's decisions concerning Gulf War coverage, see Jason DeParle, After the War: Long Series of Military Decisions Led to Gulf War News Censorship, N.Y. TIMES, May 5, 1991, at A1.

(10.) U.S. Dep't of Def., Directive No. 5122.5, enclosure 3 (Sept. 27, 2000).

(11.) See id.

(12.) Id. It is extraordinarily rare for journalists covering military actions to lose their accreditation. See, e.g., Jack A. Gottschalk, "Consistent with Security": A History of American Military Press Censorship, COMM. & L., Summer 1983, at 35, 49 (noting that of the over 2,000 accredited press representatives covering the Vietnam War, only six lost their accreditation).

(13.) Robert Pear, Military Rules on Reporting From Battlefield Are Honed, N.Y. TIMES, May 22, 1992, at A15.

(14.) Id. One author who reviewed the history of wartime journalism concluded that there "are virtually no examples of press indiscretion to justify the military's, concern that the media might reveal sensitive information to the enemy. Matthew J. Jacobs, Note, Assessing the Constitutionality of Press Restrictions in the Persian Gulf War, 44 STAN. L. REV. 675, 686 (1992).

(15.) Howard Kurtz & Barton Gellman, Pentagon Refuses to Drop Insistence on Reviewing All Stories From Battlefield, WASH. POST, May 22, 1992, at A23. One former military officer noted that the principles were not "praised" by commanders "because of their continuing concern with the consequences of publication of information that would have immediate adverse effects on U.S. operations." James P. Terry, Press Access to Combatant Operations in the Post-Peacekeeping Era, 154 MIL. L. REV. 1, 20 (1997).

(16.) Don Shepperd, Bombing Bunkers, Going Deep, CNN.COM at http://www.cnn. com/2001/US/10/11/ret.sheppard.briefing/index.html (Oct. 11, 2001). CNN is using retired military officers as analysts of Operation Enduring Freedom. The editor's note accompanies each analyst's report. See, e.g., id.


(18.) E-mail from Lt. Cmdr. Cate Mueller, Navy Office of Information, to the author (Oct. 29, 2001) (on file with author).

(19.) See Douglas Jehl, Tension and Secrecy on Warships As the Jets and Missiles Roar Off, N.Y. TIMES, Oct. 8, 2001, at A1.

(20.) Telephone Interview with Capt. Tim Taylor, Head of Press Operations, Office of Asst. Sec. of Def. for Pub. Affairs (Oct. 19, 2001). The initial restriction on use of full names was modified so that military personnel who wish to provide their full name to journalists may do so. Telephone Interview with Capt. Tim Taylor, Head of Press Operations, Office of Asst. Sec. of Def. for Pub. Affairs (Oct. 22, 2001).

(21.) Jehl, supra note 19, at A1.

(22.) See E-mail from Lt. Cmdr. Cate Mueller, supra note 18. A Wall Street Journal been cleared by U.S. military Vinson included the following statement: "This article has cleared by US. military censors." Yaroslav Trofimov, U.S. Carrier Launches Strikes Day and Night, WALL ST. J., Oct. 9, 2001, at A19. The public affairs officer (PAO) aboard the Vinson, however, did not conduct a "security review" of this article. Trofimov was not a seasoned military correspondent; he asked the PAO to read through the article for "obvious military errors." The PAO "did not `censor' the article in any way and only looked at it as a courtesy requested by the writer." E-mail from Lt. Cmrdr. Cate Mueller, Navy Office of Information, to the author (Oct. 31, 2001) (on file with author). See also 32 C.F.R. [section] 705.14 (e) (2001) (when material is voluntarily submitted for review, Navy personnel may point out inaccurate statements). Subsequent reports filed by Trofimov from the Vinson did not refer to clearance by military censors. See. e.g., Yaroslav Trofimov, Safety of Families at Home Is Big Worry For U.S. Military in Antiterrorism Campaign, WALL ST. J., Oct. 12, 2001, at A6.

(23.) E-mail from Lt. Cmdr. Cate Mueller, supra note 18.

(24.) See E-mail from Col. Lane Van de Steeg, Coordinator, Nat. Media Pool, Office of Asst. Sec. of Def. for Pub. Affairs, to the author (Oct. 10, 2001) (on file with author).

(25.) News Transcript, US. Dep't of Def., ASD PA Meeting with Media Pool Bureau Chiefs, (Sept. 28, 2001), t09302001_t0928asd.html.

(26.) News Transcript, U.S. Dep't of Def., Secretary Rumsfeld Meeting with Media Pool Bureau Chiefs (Oct. 18, 2001), Oct2001/t10192001_t1018bc.html.

(27.) Id.

(28.) E-mail from Lt. Col. Edward S. Loomis, supra note 1.

(29.) See E-mail from Col. Lane Van de Steeg, Coordinator, Nat. Media Pool, Office of Asst. Sec. of Def. for Pub. Affairs, to the author (Oct. 12, 2001) (on file with author).

(30.) Id.

(31.) Christopher Buckley, Now and Then, WALL ST. J., Nov. 5, 2001, at A20.

(32.) See Richard Reeves, Truth in Packaging of War News, DENVER POST, Oct. 19, 2001, at B7.

(33.) See, e.g., Paul Colford, Coverage in Question; News Groups Unsure of Access, N.Y. DAILY NEWS, Sept. 24, 2001, at 52; Mark Jurkowitz, Military vs. Media: A Conflict Over Coverage, BOSTON GLOBE, Oct. 4, 2001, at DS.

(34.) News Transcript, Dep't of Def., ASD PA Clarke Meeting with Bureau Chiefs (Nov. 7, 2001), html.

(35.) Transcript, Brookings Inst., Working Session on Coverage of the War on Terrorism: The Conflicting Needs of the Media and the Department of Defense (Nov. 8, 2001),

(36.) Id.

(37.) Id.

(38.) Id.

(39.) Id.

(40.) The plaintiffs in Nation Magazine v. U.S. Dep't of Def., 762 F. Supp. 1558 (S.D.N.Y. 1991), included such publications as Mother Jones, The Village Voice, and L.A. Weekly.

(41.) Garry Sturgess, Media Powers Oppose War Rules but Shun Suit, LEGAL TIMES, Feb. 4, 1991, at 2; Howard Kurtz, Journalists Say "Pools" Don't Work, WASH. POST, Feb. 11, 1991, at A1.

(42.) Id.

(43.) Kurtz, supra note 9, at A4.

(44.) News Transcript, U.S. Dep't of Def., supra note 25.

(45.) Letter from Reporters Committee for Freedom of the Press et al. to Bush Administration and Congressional Leaders Regarding War Coverage, at (Oct. 17, 2001).

(46.) Telephone Interview with Capt. Tim Taylor, supra note 20. See also 32 C.F.R. [section] 705.14(b)(3) (2001) ("On operations where security is critical embarkation of newsmen may be made contingent on their agreement to submit copy for security review.").

(47.) 762 F. Supp., 1558, 1568 (S.D.N.Y. 1991).

(48.) New York Times Co. v. United States, 403 U.S. 713, 732 (1971) (White, J., concurring).

(49.) Speiser v. Randall, 357 U.S. 513, 525 (1958). See also Marcus v. Search Warrant, 367 U.S. 717, 733 (1961) (noting that procedures which sweep broadly are constitutionally deficient).

(50.) William E. Lee, The Unusual Suspects: Journalists As Thieves, 8 WM. & MARY BILL RTS. J. 53, 60-74 (1999) (discussing government claim that Pentagon Papers were stolen and showing that Supreme Court focused on consequences of publication).

(51.) Wilcox, supra note 7, at 51. See also Terry, supra note 15, at 24 (noting that the press accepts military ground rules in exchange for access to military operations).

(52.) 444 U.S. 507 (1980). For the argument that the "trust relationship" in Snepp also applies to journalists covering military operations, see Cassell, supra note 4, at 951.

(53.) 718 F.2d 1137 (D.C. Cir. 1983).

(54.) Id. at 1148.

(55.) 756 F. Supp. 770 (S.D.N.Y. 1991), judgment vacated and appeal dismissed, 929 F.2d 69 (2d Cir. 1991).

(56.) Id. at 787-88. One problem with CIA secrecy agreements is that the burden of seeking judicial review rests upon the communicator, not the agency. See, e.g., Snepp v. United States, 897 F.2d 138 (4th Cir. 1990). Outside of the national security context, the government bears the burden of justifying its suppression of expression. See Freedman v. Maryland, 380 U.S. 51 (1965).

(57.) Snepp, 444 U.S. at 509 n.3.

(58.) 42 U.S.C. [section] 2274 (1994). See also United States v. The Progressive, Inc., 467 F. Supp. 990 (W.D. Wis. 1979) (enjoining publication of magazine article containing "restricted data"), request for mandamus denied sub nom., Morland v. Sprecher, 443 U.S. 709 (1979), appeal dismissed, 610 F.2d 819 (7th Cir. 1979).

(59.) 501 U.S. 663 (1991).

(60.) Id. at 671.

(61.) See G. Michael Harvey, Comment, Confidentiality: A Measured Response to the Failure of Privacy, 140 U. PA. L. REV. 2385, 2455-59 (1992).

(62.) Cohen, 501 U.S. at 671.

(63.) See, e.g., Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 103 (1979) (holding that if a newspaper lawfully acquires truthful information about a matter of public significance, the state may not punish publication absent a need to further an interest of the highest order). If the press illegally acquires the information, it is an open question whether the press may be punished for both acquiring and publishing the information. See The Florida Star v. B.J.F., 491 U.S. 524, 535 n.8 (1989).

(64.) Lee, supra note 50, at 56-57.

(65.) In Cohen, Justice Blackmun's dissenting opinion argued that the state's interest in enforcing promissory estoppel was insufficient to justify a restriction on publication of truthful information about a political campaign. 501 U.S. at 676 "self-imposed" J., dissenting). Justice Souter added that the Court's emphasis on the serf-imposed" promise was inappropriate; the balance to be struck had to include the "importance of the information to public discourse." Id. at 677-78 (Sourer, J., dictating).

(66.) Wilcox, supra note 7, at 51.

(67.) Jason DeParle, After the War: Keeping the News in Step; Are the Pentagon's Gulf War Rules Here to Stay?, N.Y. TIMES, May 6, 1991, at A9.

(68.) United States v. Marchetti, 466 F.2d 1309, 1313 (4th Cir. 1972).

(69.) Transcript, Brookings Inst., supra note 35.

(70.) As of November 29, 2001, the Office of the Assistant Secretary of Defense for Public Affairs was unaware of any conflicts between reporters and escorts over what could be reported. See E-mail from Lt. Col. Victor Warzinski, Military Assistant to the Assist. Sec. of Def. for Pub. Affairs, to the author (Nov. 29, 2001) (on file with author).

(71.) Browne, supra note 9, at 27. Discussion of the Gulf War "security review" may also be found in Jacobs, supra note 14, at 687-94, and Michael D. Steger, Slicing the Gordian Knot: A Proposal to Reform Military Regulation of Media Coverage of Combat Operations, 28 U.S.F.L. REV. 957, 972-78 (1994). The problems of "security review" in other American military actions are discussed in JEFFREY SMITH, WAR AND PRESS FREEDOM: THE PROBLEM OF PREROGATIVE POWER (1999).

(72.) Browne, supra note 9, at 27.

(73.) Id.

(74.) Nation Magazine v. U.S. Dep't of Def., 762 F. Supp. 1558, 1578 (S.D.N.Y. 1991).

(75.) Williams, supra note 9, at D1.

(76.) Malcolm W. Browne, Conflicting Censorship Upsets Many Journalists, N.Y. TIMES, Jan. 21, 1991, at A10.

(77.) Id.

(78.) Kurtz, supra note 41, at A1.

(79.) Michael Getler, Editorial, Do Americans Really Want to Censor War Coverage This Way?, WASH. POST, Mar. 17,1991, at D1.

(80.) Freedman v. Maryland, 380 U.S. 51, 58 (1965).

(81.) DeParle, supra note 9, at A1.

(82.) Thomas I. Emerson, The Doctrine of Prior Restraint, 20 LAW & CONTEMP. PROBS. 648, 659 (1955).

(83.) Id. at 657.

(84.) Potter Stewart, "Or of the Press," 26 HASTINGS L.J. 631, 636 (1975).

(85.) E-mail from Col. Van de Steeg, supra note 24.

WILLIAM E. LEE, Professor, Grady College of Journalism and Mass Communication, University of Georgia. Author's note: This Article was written during the early stages of Operation Enduring Freedom and does not consider any developments occurring after November 24, 2001.
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Title Annotation:Department of Defense Principles for News Media
Author:Lee, William E.
Publication:Harvard Journal of Law & Public Policy
Geographic Code:1USA
Date:Mar 22, 2002
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