Everything online journalists need to protect their legal rights. This free resource culls from all Reporters Committee resources and includes exclusive content on digital media law issues.
From the Fall 2010 issue of The News Media & The Law, page 4.
When the Pentagon announced in early September that it would loosen restrictions on reporters covering military trials at the Guantanamo Bay Naval Base, several members of the press hailed the decision as a good-faith effort to correct inadequacies in news media access that were unparalleled in any other circumstances facing American reporters.
However, mostly unnoticed by reporters was an action the Pentagon took on Sept. 2, just one week prior to the announcement of the revamped Guantanamo guidelines: The Pentagon’s Office of the Secretary of Defense released a memo detailing a new policy designed to curb the flow of leaked information to the news media.
And one week later, the directive was followed by a much less subtle move by the Pentagon. On Sept. 10, the same day the new reporter ground rules were released, The Washington Post reported that the Pentagon would purchase the entire first print — nearly 10,000 copies — of the controversial Afghan war memoir “Operation Dark Heart,” in order to redact allegedly classified information for the reprint and to destroy all original copies of the book.
The contradictory nature of these orders, calling for greater transparency while at the same time obstructing news coverage of the military, has sent a mixed message to the news media about the Pentagon’s interest in keeping the public informed of its actions and calls into question the Obama administration’s efforts to reverse Bush administration-era policies of government secrecy surrounding the military.
A controversial ban spurs change at Guantanamo
While covering trials at Guantanamo has long been a logistical nightmare for reporters — the court is located on a military-run prison camp outside the jurisdiction of the U.S. legal system — the Pentagon’s decision to rewrite the ground rules for reporters was ultimately a response to the controversial decision to ban several reporters from the war court earlier this year.
In May, four reporters were permanently expelled from the court during the hearing of Canadian detainee Omar Khadr after they published information that the military had deemed classified. Carol Rosenberg, of The Miami Herald, said that after she identified a military interrogator as Joshua Claus in a news article, “Within a day [the military] declared it a violation, and they banned me for life.”
Judge Col. Patrick Parrish had instructed reporters to only identify Claus as “Interrogator No. 1,” and not by name. However, according to the Herald, Rosenberg’s story identifying Claus had already been filed before the judge made his warning. In addition, Claus’ name was already made public after he gave an on-the-record interview to The Toronto Star reporter Michelle Shepard, whom the Pentagon also banned from the court.
In July, the four reporters appealed their expulsion to the Pentagon’s public affairs office. In response, the office concluded that its reaction was too severe and said it would rescind the expulsion on the condition that reporters agreed to abide by the original ground rules. Even after the ban was revoked, the reporters continued to assert that many of the existing rules violated their First Amendment rights. This controversy surrounding their reinstatement was what fueled the effort to rewrite the ground rules, said Dave Schulz, an attorney for three of the expelled reporters.
The reporters and their parent organizations “argued that the rules that kicked them out were flatly unconstitutional, that they gave the PAO [Public Affairs Office] staff the power to issue prior restraints,” Schulz said. “This might have been headed to court if DOD [Department of Defense] hadn’t changed the rules.”
After an uproar from several news organizations regarding the reporter ban and other censorship issues at Guantanamo, the Pentagon’s press office invited news organizations in July to submit written comments expressing their frustrations. Defense Department officials then sponsored a roundtable meeting in August to assess the concerns of media groups, which ultimately led to the department withdrawing the old ground rules and implementing new ones, Schulz said.
After the new ground rules were released, Doug Wilson, assistant secretary of defense for public affairs, told the Herald in September that the Pentagon was “aware time had passed and the regulations had not caught up. When we took a look, there were very valid issues on the part of the press.”
But as head of the Department of Defense’s Office of Public Affairs, Wilson also wrote the Sept. 2 memo urging Defense Department staff not to provide information to the press or the public without first seeking permission from high-level Pentagon officials, a seeming departure from his move toward greater openness to the press at Guantanamo.
Despite the apparent conflicting messages coming from Pentagon officials, the implementation of new ground rules at Guantanamo was a welcome change for reporters who have dealt with the restrictive conditions at Guantanamo during the past decade of the war against terrorism.
Righting past wrongs for reporters
Reporters have long complained about what they claim are overbearing restrictions on their ability to report the news at Guantanamo. According to Rosenberg, who has covered proceedings at the war court for the past eight years, military personnel in charge of the press at the camp have not only been applying the most extreme interpretations of reporter ground rules, but they have also been inconsistent when enforcing them and sometimes ignore the rules altogether.
“They have been improvising for the past couple of years,” Rosenberg said. She pointed to the military’s banning of reporters for publishing already public information as evidence of the disregard for reporters’ rights at the war court.
“They took these ground rules, and they just kept coming up with these bizarre interpretations of their powers,” she said.
One of the most common grievances brought by reporters has been the inconsistent censorship of what military personnel considered “restricted” information, which is often done without any explanation and doesn’t follow any guidelines, Rosenberg said. Two commonly cited complaints are the redaction of publicly known information from court briefs and the destruction of photos containing “sensitive” or “classified” material, she explained.
“They invoke these rules that if a slice of a bunker or little piece of black fence is in the photo, they could rule it as classified, even if it wouldn’t mean anything to someone who had never been to Gitmo,” Rosenberg said.
Now that the ground rules have been rewritten, Rosenberg said the most important change is that she no longer has to fear retribution from the court for reporting information that is already known by the public.
“The fundamental thing that changed for us is that the threat of lifetime banishment from reporting there is gone if you happen to report something that’s publicly known. That’s what had hung over us,” she said.
The new ground rules also took into account the problems facing photographers, who will now be allowed to crop and edit photos and video to remove any material deemed sensitive or classified by the military, rather than being forced to destroy the images.
Nancy Youssef, president of the Pentagon Press Association, said the most important issues she sought to resolve through the new ground rules were increasing access to information and improving the living conditions for reporters. She believes that the restrictions faced by reporters at Guantanamo were an exception to every military installation in the country. “Guantanamo was so off the mark that we were just trying to get it back within reason,” she said.
Even reporters embedded in Iraq and Afghanistan have more freedom to disseminate information than those at Guantanamo, Youssef said.
“Guantanamo was an anomaly in terms of press access . . . not only for any military installation, but for any court,” she said. “Deleting photos and banning reporters — there are things going on at Guantanamo that don’t happen on the battlefields.”
But despite the lifting of many prior restrictions under the new ground rules, the situation for reporters is still less than ideal, Rosenberg said.
“They peeled off about two years of restrictions and got back to where they were. But they weren’t great then . . . We’re back to operating in a condition that was uncomfortable then, and restrictive,” she said.
A rocky trial run for the new rules
With her lifetime ban rescinded, Rosenberg returned to Guantanamo in late September for the hearing of Noor Uthman Muhammed, a Sudanese prisoner with alleged ties to the al-Qaida terrorist network, hopeful that the new ground rules had been adopted at the camp. But upon arrival at Guantanamo, Rosenberg’s optimism quickly faded to frustration when she realized that military personnel at the prison camp were not aware of the new guidelines.
“There was no sense that the people in charge of us had gotten the message that this was a new era,” Rosenberg said. “When reporters tried to assert that certain things were allowed, the handlers fundamentally ignored it.”
Mark Seibel, managing editor of the website for McClatchy’s Washington, D.C., bureau, said military personnel working at Guantanamo were generally unprepared for the new ground rules. “It took a couple of days for them to understand things had changed,” he said.
Seibel cited several problems during the Noor hearing, including military personnel falsely telling reporters that the names of detainees were classified and distributing information to reporters that contradicted the new ground rules. Photographers still faced consistency issues with the photo-review process as well, he said.
“The operational security review [was] a little bit chaotic, and depending on who was doing your review, you might get different rulings on the same photo. So there was some inconsistency there that I think they need to fix,” he said.
Rosenberg described one particularly frustrating incident where military personnel censored photographs of an empty tent on a runway.
“It’s not just that they were inconsistent. It’s the baseline thought that an empty tent . . . on a tarmac is a security measure and a checkpoint someone can invoke as something they can censor,” she said.
According to Maj. Tanya Bradsher, a spokeswoman for the Office of the Secretary of Defense, public affairs officials received some positive feedback from photographers on the impact of the new ground rules.
“They were happy with the improvements in being able to crop their images, as well as having more flexibility on the type of shots they were able to get,” particularly “towers and other sections of the detention facility that they weren’t able to have images of before,” she said.
Beyond the photo-review process, the most startling contradiction of the ground rules to visiting members of the media was a confrontation between a soldier and a Norwegian reporter in the courtroom during the Noor hearing. Heidi Skjeseth, a reporter for the Oslo daily newspaper Dagsavisen, was sketching a seating chart of the courtroom in her notebook when the court security officer walked over and tore the page out, Rosenberg said.
Seibel then reported the incident to Bradsher, who returned the page to Skjeseth with a personal apology some hours later. Rosenberg said that without Seibel’s help, Skjeseth, a first-time reporter to Guantanamo, would have had no idea how to defend her rights as a journalist.
“I think that she was shocked . . . and my impression is the only reason this was resolved is that Mark was there,” Rosenberg said. “It was intimidating what they did to her. It was ugly.”
Rosenberg said that drawing court diagrams, a commonly used tool for any court reporter, was never a violation in the past and is not a violation under the new ground rules. This scenario demonstrates the type of improvisational censorship journalists are up against, she said.
That Seibel was able to resolve the problem was “a happy ending, but every time there’s a misinterpretation, it’s going to be a problem down there,” she said.
Despite the incidents during the Noor trial, Seibel said reporters’ concerns were addressed and problems were resolved immediately once he invoked the new ground rules to Bradsher and other public affairs staff. He is optimistic that the Noor hearing was merely a “bumpy” test-run of the new rules and that reporters will experience fewer problems in the future.
“I’m hopeful going forward that they’ll do a better job,” he said. “I didn’t detect any sense that they were trying to obstruct the ground rules. I just think they weren’t prepared for them.”
New rules, same culture
Despite Seibel’s optimism, Rosenberg said that writing new guidelines isn’t enough to truly change the culture at Guantanamo. Conditions will not improve “just because people in Washington have agreed it will be better . . . All the goodwill in the world has yet to reach the people on the ground who are invoking these things,” she said.
In one incident Rosenberg described as “classic old Guantanamo,” prosecutors at the Noor hearing discussed documents before the court that had not been made available to reporters prior to the hearing, because the information was considered “restricted.”
“It’s exactly the kind of thing that drives people crazy about the opaque transparency at Guantanamo,” she said. “We don’t know what they’re talking about, and they have not given us the documents. So, we’re sitting there . . . ignorant of what’s being said, and then they want us to attest for how open and transparent it is.”
Beyond the problems of censorship and access to court documents, Rosenberg said reporters are still facing privacy issues, particularly the constant supervision the military places on them.
In previous years, reporters were given officers’ quarters to sleep in, as well as their own press room where they could write stories, conduct interviews and speak with their editors, Rosenberg said. Now, reporters sleep in tents and are placed under constant surveillance by military personnel, even while writing stories or talking on the phone.
“They’ve created this very small, tight filing center where they expect you during trials to eat [all meals], talk to your editor, write stories, monitor the court and be interviewed; and everything happens in this very compressed space, within earshot of at least two soldiers or sailors at all times, writing in a little green book what’s going on,” she said.
Reporters cannot even go to the bathroom or to get a meal without a military escort, Rosenberg said. “You’re in custody. You’re always in custody, and that hasn’t relaxed a bit,” she said.
Thus, despite efforts to update the new ground rules, reporters still must face the abnormal conditionality of an obstructionist military culture when working on the base, which is difficult to endure, she added.
“It’s a question of how much supervision can reporters tolerate — and should they,” Rosenberg said. “You learn to live with it, but it’s not normal. It’s not like any court reporting I’ve ever seen.”
Frustrations aside, Rosenberg acknowledged Bradsher’s efforts to ensure that the new ground rules were upheld, saying she is not at all ungrateful for the strides that have been made toward greater transparency at Guantanamo.
“I think [Bradsher] has a lot of goodwill, and she has embraced the new ground rules . . . She was clearly shocked to see that the people down there were working under the old ones,” Rosenberg said. “I do think that there’s an intention to improve [the situation]. The question is: How do you improve it on the ground with an infrastructure that has, for the past year or two, been steadily adding and piling restrictions on the media?”
Rosenberg also believes that Pentagon spokesman Wilson has made efforts to combat the resistance to change at Guantanamo, but that as an outside civilian working in a military environment trained to resist the press, he is fighting an uphill battle.
“The military has been functioning under ‘Rumsfeld-ian’ doctrine for all these years. I don’t know if [Wilson] can even turn this aircraft carrier because that would involve the people who work for him acknowledging that some of the restrictions they had weren’t necessary in the first place. And they’re going to defend their position. It was people below him . . . that banned us for life,” she said.
Rosenberg is hopeful that after the rocky trial run for the new ground rules at the Noor hearing, press handlers at Guantanamo have taken the time to become acquainted with the new rules.
One step forward, two steps back
While the implementation of new ground rules for Guantanamo reporters hasn’t come without its share of difficulties, the rules themselves are a step forward, if only a small one, from previous restraints placed on reporters at the war court.
Thus, many military reporters were dismayed to learn that just prior to the release of the new guidelines, the Pentagon had also made two major efforts toward limiting public information about military operations.
The first such effort came in the form of two separate memos released by the Office of the Secretary of Defense last summer warning Defense Department officials not to provide information to the press or the public without first seeking permission from the Pentagon’s public affairs office.
In a July 2 memo, Defense Secretary Robert Gates expressed his frustration with recent leaks of military information to the press, saying, “I am concerned that the Department has grown lax in how we engage with the media. . . . We have far too many people talking to the media outside of channels, sometimes providing information which is simply incorrect, out of proper context, unauthorized, or uninformed.”
Gates’ principal focus in his memo was on ensuring that all department officials possess accurate and up-to-date department information, meaning it reflects the opinions of the public affairs office, before speaking with the press, in order to “avoid misunderstandings and miscommunications caused by insufficient situational awareness.”
In a follow-up memo in September, Wilson stressed the importance of Gates’ request, warning that “those who provide classified or sensitive, pre-decisional information to the press without authorization . . . will be held accountable.”
In response to this new policy, many reporters covering the military and the Pentagon — in the U.S. and embedded abroad — have begun to worry about the impact it could have on their ability to accurately report the news.
“If the policy has the impact of stopping [public affairs offices] and others from talking with the media, it is unreasonable and contrary to the mission of the military in a democratic society,” said Military Reporters and Editors Vice President Don North. “Reporters are concerned with accuracy and with speed in keeping the public informed. Anything that slows the news process or separates the news [from the public] by layers of bureaucrats . . . is not in the public interest.”
North also believes the Pentagon’s new policy could actually lead to more leaks, rather than stifling them. “When information is not free flowing or not readily available, it creates an atmosphere where leaks are more prevalent. I think that what [the Department of Defense is] doing is the opposite of what they had intended,” he said.
Military Reporters and Editors co-founder Sig Christenson, who has traveled to war zones in Iraq and Afghanistan nine times since Sept. 11, 2001, says he finds this new policy “troubling.” He believes Wilson’s warning against providing “pre-decisional information” could silence military officials from releasing vital knowledge to reporters, thereby watering down the news the public receives about wartime operations.
“The bottom line is: If you don’t know what’s really happening, what you have is a story that puts their fables into print, and that’s not what I’m here for,” he said.
Christenson believes this policy will not only further obstruct public knowledge about military actions, but it can also be harmful to the well-being of soldiers. He cited several examples in which he believes reporters’ ability to obtain information from military personnel has been vital to troop safety, such as the 2007 The Washington Post report on the patient-neglect scandal at Walter Reed Army Medical Center.
“If the new policy was in place, would those soldiers have talked with The Washington Post and would we have learned of the abysmal conditions some of those wounded warriors endured?” Christenson wrote by e-mail. “Journalists reporting on the military always advocate for their readers but, in so doing, often indirectly become advocates for their subjects — in this case wounded soldiers. That is key to the watchdog function of reporters and editors.”
The Pentagon, however, believes a balance must be made between providing public information and protecting the security of American troops. Regarding his relationship with the press, Wilson said in an interview with the Post that he seeks to provide as much press access as possible.
“My responsibility is to be as timely, transparent and accurate as I can. But I’m also responsible for ensuring that the welfare and security of the men and women in uniform are protected and respected,” he said.
But with a continued tightening of media access, military reporters like Christenson believe they are being obstructed from providing a significant public service.
“Those of us who go to the war zone write the first drafts of history, and that’s not a small thing,” he said.
Insight into military censorship
In a more conspicuous attempt at limiting public information about military activity, the Pentagon also decided in early September to purchase and destroy the entire first print of the controversial Afghan war memoir “Operation Dark Heart,” arguing the original manuscript contained classified information that hadn’t been thoroughly screened by intelligence officials, according to Agence France-Presse.
The memoir details Army Reserve Lt. Col. Anthony Shaffer’s five-month tour of Afghanistan in 2003. Shaffer received permission to publish the manuscript earlier this year after U.S. Army officials reviewed it. However, Pentagon officials maintain that military regulations require that every government agency mentioned in the book approve it as well, AFP reported.
The book’s publisher, St. Martin’s Press, agreed in late September to allow the Pentagon to redact further material from the original manuscript in exchange for reimbursing the cost of the first printing. But while the updated version of Shaffer’s memoir has been censored to a level that Defense Department officials are willing to accept, some argue that this public move by the Pentagon to destroy all copies of the original work may end up drawing more attention to the book than it would have received in the first place.
Despite the Pentagon’s elaborate tactics to hide the original text from public view, which critics of the decision have compared to the events of Ray Bradbury’s dystopian novel “Fahrenheit 451,” several uncensored advanced copies of “Operation Dark Heart” had already been sent to select media organizations before Defense Department officials discovered alleged security breaches in the text. Thus, having the ability to compare the original manuscript to the redacted version gives the public a unique insight into what information the military deems “classified.”
According to a report by The New York Times, which purchased an uncensored copy of the book online in September, most of the information that has been redacted in the updated text is either common knowledge or easily discoverable information.
Examples of the redacted info include: a well-known nickname for the National Security Agency; the location of the CIA’s training facility at Camp Peary, Va.; the commonly used abbreviation SIGINT, which stands for “signals intelligence”; and Shaffer’s cover name in Afghanistan, as well as the source of this cover name, a character from the 1949 John Wayne movie, “The Sands of Iwo Jima.”
In the Pentagon’s most recent redaction, only about 10 percent of the censored passages contain any sensitive information that could be invoked as a national security threat, according to Steven Aftergood of Secrecy News.
“Many other redactions are extremely tenuous,” he wrote in his newsletter. “In short, the book embodies the practice of national security classification as it exists today. It does not exactly command respect.”
The Pentagon must demonstrate a real threat to national security or to the lives of citizens in order to legitimately withhold information from the public, according to Youssef, who is also a military reporter for McClatchy.
“The standard for [withholding information] that the public has the right to know should be very, very high, and that’s what I worry about. Too often the reasons are not for national security or not because someone’s life is at risk, which are legitimate reasons, but for public relations sake,” she said. “I get that there’s an impulse to protect [confidential information], but . . . this is such a critical time that we have to have an informed debate about these issues.”
Youssef added that while it may not be the case with Shaffer’s book, she believes the Pentagon often invokes secrecy merely to prevent military or Defense Department officials from being cast in an unfavorable light.
“I do think too often that the Pentagon withholds intel because it makes the building look bad . . . [or] because it doesn’t serve somebody’s interests,” she said. “It is a broader question to be asked at the Pentagon about why information is withheld. Half of what we’re doing is asking that question over and over again.”
And while the Pentagon may have redacted information in order to avoid a public relations debacle, it could also have inadvertently created one through its decision to destroy “Operation Dark Heart,” said Brendan McGarry of Military Times.
“It’s a public relations disaster, and their actions are only generating more interest in the topic,” he said. McGarry also believes the decision to destroy the book runs contrary to the Obama administration’s attempt to create a more open and accountable government.
“Clearly, it flies in the face of [open government]. It seems to directly contradict the . . . spirit of this administration’s campaign pledge to transparency,” he said.
Despite feeling that the heightened level of censorship in this case was not completely justified, McGarry believes that the Pentagon often has legitimate concerns about the release of certain information, especially in light of the recent release of thousands of pages of classified information from the war in Afghanistan by the website WikiLeaks.
“The WikiLeaks case clearly underscores the danger of just being completely and 100 percent open and transparent with unfettered access to intel. The names of legitimate contacts we had were in those documents. They didn’t screen anything,” he said. “It’s illustrative that, to a certain degree, these guys can have concerns about information, about complete and unfettered access to it. So there is a balance which is hard to define.”
This delicate balancing act, a struggle between the military’s desire to protect national security and troop safety, and the burden on reporters to ensure that the public is informed about military operations during a time of war, has come to the forefront in all three of the Pentagon’s recent policies toward the news media.
On the surface, the Pentagon appears to be torn between Bush-era limits on press access to the military and the new demands of the Obama administration for an unprecedented level of transparency in government.
Several reporters feel that the resulting product has been a reluctant experiment in openness that, despite some progress toward greater transparency, belies constitutional promises of a free press and a democracy that is accountable to the public.
But amidst the struggle over determining exactly what kinds of information the public should be entitled to during a time of international conflict, reporters covering national defense have made one message clear: They are not the enemy.
“We’re not here to confront the Defense Department, but we do periodically step up when we think something isn’t right,” Christenson said.
“In the end, the only thing that counts is truth. That’s my agenda. That’s the agenda of every reporter who covers the military,” he said. “I’m not here to report secrets that are going to harm people, that aren’t factual. I’m here to report the truth, and this policy is going to make that more difficult. That is inevitable. And I sincerely hope that people don’t follow it.”