The pen is mightier than the sword or why the media should exercise self-restraint in time of war.

• Author: Kelly, Carlos A.

On September 11, 2001, shortly after airplanes struck the Twin Towers, the media revealed the deployment of the U.S.S. Theodore Roosevelt, an aircraft carrier, to New York City. At a time when an identifiable enemy could not be located--when the enemy should have been presumed to be at large--the media disclosed the location of U.S. forces. Since then, some members of the media have complained that their right to report is being unnecessarily abrogated by Pentagon restrictions. For example, journalist Peter Arnett has said he "[doesn't] see why reporters cannot be in the B-52s that are starting to launch continuing air strikes." (1) Commenting on another journalist's observation that government authorities restricted broadcasts of Osama bin Laden's image as a precaution against inadvertently transmitting secret signals to other terrorists, Arnett has said "that controlling the message ... is an overwrought reaction by government authorities." (2) Add to those remarks the view of some that a media consortium should purchase a controlling interest in a reconnaissance satellite in order to ensure the media has access to space-based cameras so that satellite photographs may be available for the use of the media, free of the auspices of government. (3)

In the wake of the September 11th attacks, all Americans, but perhaps Floridians most of all, have several reasons for taking a keen interest in what the media broadcasts about ship locations, troop deployment, and other sensitive subjects. After all, Florida was a staging ground for the terrorists. For example, the investigation into the attacks revealed that many of the suicide terrorists lived in Florida where they took flying lessons and martial arts classes. (4) Other Floridians witnessed the President's reaction to the news of the attacks first-hand when he was in Sarasota visiting an elementary school. Individual Floridians may have become targets: The first anthrax-related death, though not conclusively linked to the September 11th attacks, occurred near West Palm Beach only weeks later. (5) Most significantly, perhaps, the U.S. Army's CENTCOM (Central Command), which maintains operational control of"Enduring Freedom," is based in Tampa at MacDill Air Force Base. (6) Against this backdrop of people and places, one must consider two cherished concepts: freedom of the press and a government open to scrutiny.

The implications of exercising control over the media in time of war are significant. The lifeblood of democracy, a form of government that derives its power from the consent of the governed, flows, in part, because of the existence of an informed citizenry. (7) Thus, in time of peace and time of war, in order to maintain the legitimacy of the government, citizens must know what actions are being prosecuted in their name. (8) However, during time of war, limits to this proposition must exist. If the survival of the Republic is at risk, the courts likely will assist the legislative and executive branches when they act to preserve the Republic--even if it means temporarily curtailing, by as limited a means as possible, certain freedoms so that the virtues of liberty can be fully enjoyed as soon as the threat is vanquished. As Americans, we prize our freedoms; this article's proposition recognizes and embraces those freedoms, while arguing that the common sense approach suggested by the Supreme Court, in dictum, in regard to the First Amendment in time of war should trump an unfettered media right of access. As a result, the media should exercise self-restraint and judgment when covering military operations. (9) Such self-restraint would strike a balance between competing interests and achieve a sensible policy of providing citizens with needed information while protecting American lives on the battlefield. Significantly, the media self-restraint proposed in this article, by its very nature, should not signal a general roll-back of civil liberties.

Origins of Conflict Between Media and Armed Forces

Throughout history, the relationship between the armed forces and the media has been marked by disagreement and competing objectives. (10) Sun Tzu, the ancient Chinese warrior and author, counseled commanders that the "formation and procedure used by the military should not be divulged beforehand." (11) One of the U.S. Army's eight principles of war is surprise. (12) In contrast, the purpose of news organizations is to disclose information. (13) Necessarily, the two ideals--secrecy and disclosure--collide when the armed forces and news organizations interact. (14)

Secrecy remains important even after a mission has been accomplished. Allowing the media to publish secret or sensitive information after the "surprise" has been sprung is no solution. The enemy may be able to gain an advantage with the "after-the-fact" information. For example, in World War II, a reporter, after learning Allied Intelligence had broken the Japanese code, published the names of Japanese warships used in the Battle of Midway, which revealed the Allies' ability to crack the code. (15) Fortunately, the Japanese never capitalized on the publication; nevertheless, the magnitude of the potential loss resulting from a Japanese realization that their naval code had been broken illustrates the need for continuing secrecy in particular circumstances.

In order to prevent, or at least control, the disclosure of information, the armed forces have used two primary methods in attempting to restrict the media in time of war. The first method of control is censorship. Military censors delete information, regardless of source, that is deemed unfit for publication. Similarly, the armed forces may review information before publication and ask the media to refrain from publishing what has been deemed to be sensitive information. The second method of control in time of war is more basic--restricting media access to sources of information. Instead of censoring sensitive information, the armed forces prevent the media from acquiring sensitive information. Press pools, restricting physical access from particular areas, misinformation, and the use of preferred correspondents all fall into the category of restricting media access to sensitive information.

Wartime Censorship and Restricted Access

* Censorship

As war correspondent Phillip Knightley observed, in the 20th century the armed forces applied "censorship at the source" within the U.S. (16) The goal of the military censors was to prevent the media from learning information that the armed forces did not want released. (17) Military censors determined that the information could be published if the war effort would benefit from having the information made public. (18) Outside the U.S., American armed forces exercised a different method of control. Correspondents were required to be accredited or were excluded from theaters of war. (19) A condition of accreditation required the correspondent to submit his or her stories to a military censor. (20)

* Restricted Access

Foreign armed forces developed the practice of restricting battlefield access. For example, press pools--a group of reporters who collect information to be shared with other news organizations--originated in the Russo-Japanese war of 1904-05. (21) The Japanese High Command restricted the Western media to Tokyo during several months of fighting. (22) When members of the media were finally allowed to leave Tokyo, they were under military escort and kept at a distance from the front. (23)

American armed forces first began using press pools in the Panama invasion of 1989. (24) (Major General Winant Sidle, a military spokesman during the Vietnam War, had introduced the press pool concept to the relationship between the American military and media after the invasion of Grenada. (25)) In the absence of a press pool convention, the armed forces restrict battlefield access by simply ordering the media to avoid certain areas under pain of arrest or deportation. (26)

Another way armed forces restrict media access is through the use of misinformation (i.e., deliberately giving...