"Security review" and the First Amendment.

Author:Lee, William E.
Position:Department of Defense Principles for News Media

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 below. 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)


    1. 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)

    2. Press-Military Relations in Operation Enduring Freedom

      CNN is sensitive to reporting any information that could endanger lives or operations. --Editor's note at CNN.com (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...

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