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 Winter 2003 issue of The News Media & The Law, page 10.
By Alicia Upano
At first glance, the British photographer may have appeared as just another member of the press on assignment post-September 11 in Afghanistan: American press credentials around his neck and credit lines in Time, Newsweek and Life. But one national security expert claims the man was playing for a different team: the U.S. Central Intelligence Agency.
At a meeting with CIA general counsel, former Washington Post reporter and National Security Archive founder Scott Armstrong relayed the account described to him by sources in Afghanistan -- including the man's name. The CIA would not confirm the account, he said, but shortly thereafter the man was removed from Afghanistan.
Despite the 1977 CIA regulation banning the agency's use of U.S. journalists, the CIA is not barred from enlisting foreign journalists or volunteers. Both the CIA and the Federal Bureau of Investigation have been known to use journalists as cover.
The latest development in the government's War on Terrorism is the advent of the Department of Homeland Security, which will possess the investigatory powers of several federal agencies including the Secret Service, Coast Guard, Immigration and Naturalization Service and the National Security Agency among others.
Although agencies are still discussing how they will share intelligence and to what extent they will conduct terrorism investigations, some government outsiders wonder if President George W. Bush's newborn department investigators will try to use journalists or their identities.
Federal agencies' use of journalists reared its head after the kidnaping of Wall Street Journal South Asia bureau chief Daniel Pearl. His captors initially claimed they thought he was a CIA agent posing as a journalist despite the fact that several people -- including his boss at the Journal and the CIA itself -- denied the allegations.
"This is the problem. You have people who have good reason to believe, who . . . think he is a CIA agent," Armstrong said of Pearl's kidnaping. "Would he [have been] kidnaped without that? Probably, but that's not the point."
The point, perhaps, is this: Pearl's captors might not have been too far off base in thinking that the U.S. government would disguise its intentions in the form of a journalist.
Pearl was murdered in February 2002.
His captors turned over the videotape of his murder to an undercover FBI operative they believed to be a journalist, CNN reported. A month before his capture, Editor and Publisher speculated about whether CIA agents were "covering" as journalists in Afghanistan after a Taliban defector told the Washington Post that he was approached by intelligence agents in journalist guise.
Such events invoke a decades-old history of federal agents masquerading as the very people who should be watching them and the several accounts of foreign reporters imprisoned because they were believed to be spies.
Media manipulation by the CIA and FBI came to the forefront of public attention with the admission of the practices by Congressional intelligence committees in early 1976. Reports issued by the Senate Select Committee on Intelligence, known as the Church Committee after Chairman Frank Church (D-Idaho), outlined CIA and FBI practices that regularly used journalists for their own means.
The CIA adopted regulations in 1977 that barred the practice of using journalists, all the while neglecting to publicize a loophole that would allow the agency to use journalists under "extraordinary" circumstances with the "specific approval" of the CIA director.
The loophole came to public attention in 1996, when the Washington Post exposed the waiver in the regulation's language that few even knew existed.
An upheaval of dissent resounded from media groups including the Society of Professional Journalists, the American Society of Newspaper Editors and The Reporters Committee for Freedom of the Press.
At the time, reporter Terry Anderson was a testament to their case. Anderson, former chief Middle East correspondent for The Associated Press, was held hostage in Lebanon for seven years under the alleged suspicion that he was an American spy.
However, he told the St. Petersburg Times in 1996 that his Muslim terrorist captors "believe all Americans are spies, particularly those who go around asking questions." The CIA's policy of utilizing journalists on "extraordinarily rare" occasions, according to advocates, was simply the nail in the coffin.
There are several accounts of individuals affiliated with the U.S. media who have suffered similar accounts. The CIA also has not explicitly explained what constitutes "extraordinarily rare" occasions and circumstances.
The 1997 Intelligence Authorization Act was signed into law by President Bill Clinton, allowing the ban on the use of journalists to be waived with notification to Congress and presidential approval.
Attorney General guidelines established in 1992 allow FBI agents to impersonate journalists with approval from bureau headquarters. The Columbia Journalism Review reported in November 1992 that the FBI, after being probed of its practices by a journalist whose name and credentials were appropriated by the FBI without his knowledge, expanded this practice to its counterintelligence operations.
The practice of FBI agents impersonating journalists is not just an issue on the international front. In fact, the FBI utilized journalists well before the 1992 guidelines. The FBI maintained "friendly" news contacts which, the Church reports outline, were used to "squelch" articles unfavorable to the FBI, postpone publication and plant articles, some of which aimed to discredit efforts such as the civil rights movement.
More recently, in Coeur d'Alene, Idaho, reporters exposed undercover agents posing as journalists outside a trial against members of the Aryan Nations in 2000. Seven undercover officers, at the county sheriff spokesman's suggestion, obtained media credentials in order to covertly photograph neo-Nazis gathering outside the trial. Their credentials were later revoked.
Much like the FBI undercover investigations, the Internal Revenue Service may pose as reporters with permission from a district director or main office.
The U.S. Postal Service, on the other hand, is the only known federal agency to officially ban all use of journalist cover for investigatory purposes. The policy was implemented shortly after two postal inspectors were reported to have posed as journalists in order to uncover information on a postal employee who filed a worker's compensation claim in 1995.
SPJ President Reginald Stuart wrote to the Postmaster General, urging him to issue a policy disallowing further impersonation of journalists. Postmaster General Marvin Runyon replied to Stuart in August 1995 that all postal inspectors were advised to no longer assume a journalist identity for the sake of investigation.
Local police across the country have posed as reporters during standoffs in an effort to get closer to a hostage taker, sometimes at the request of the suspect to speak with a reporter. Often the police will approach the reporter or cameraman and ask to pose as him or her. In all known instances, the journalist and his or her editor consented and officers donned themselves in the necessary attire and equipment borrowed from the reporter -- camera, notepad, cap and credentials -- in order to fool the suspect.
On some occasions, journalists actually become involved in law enforcement operations. A news crew from KVCB-TV Channel 3 of Las Vegas, Nev., flew their helicopter over an apartment building in 1997 to create a loud distraction so that police could safely drill through a wall in the apartment where a man held his ex-girlfriend and children at gunpoint.
Deni Elliot and Paul Martin Lester of The Practical Ethics Center at the University of Montana wrote a column about the ethical implications that arise when assisting the government conflicts with the ability of journalists to do their job or is likely to harm the profession as a whole.
"It is important that even the most sleazy sources in the most desperate situations can trust that journalists are on no other side other than the truth," they wrote.
William Thomas Jr., executive editor of the Oakland Press in Pontiac, Mich., allowed a photographer to work with the police in 1990 to capture a man holding a butcher knife to the throat of an elderly widow. Thomas attacked the soundness of "ethical violations" in the "armchair debate" that ensued after a photographer allowed a police officer to pose as him. In FineLine, a journalism ethics newsletter, Thomas wrote that accusations that such acts damaged the professional integrity and credibility of journalists were "rubbish."
"We could have launched into a debate over a cop impersonating a reporter. We could have cried foul from afar over the 'horrifying' subterfuge being perpetrated on the public … We could have watched as [the elderly widow] was carried away in a body bag," he said.
Frankly, he said, "once theory hits the street, reality sets in. There's no time to contemplate the fine points."
And journalists don't always have a choice in the matter.
"Impersonation of journalists happen with or without the cooperation of newsrooms," Elliot and Lester wrote. "In a world in which so much more is uncertain than before September 11, it is vital that journalists be clear about who they are and what they do."
In midst of the 1996 flurry to get the CIA to ban all use of journalists, SPJ quoted Maj. Gen. Yury Kobaldze of Russia's Foreign Intelligence Service, which employs similar tactics.
"There is no essential difference between the work of a spy and a journalist; both collect information in the same way -- just the end consumers are different," Kobaldze said.
"Journalists make the best spies; they have more freedom of access than diplomats. The Americans' moral stand on not using journalists is artificial, and not a little duplicitous."
As a practical matter, The Committee to Protect Journalists' Washington representative, Frank Smyth, said that it is not uncommon for U.S. journalists working abroad to be mistaken for spies.
"Governments appear to use it to demonize reporters whose work has uncovered too much of the truth," he said.
In the discussion of journalists' relationships with law enforcement, former Washington Post reporter Scott Armstrong said there are nuances to be considered.
"I think it's an established principle that journalists talk and exchange information with law enforcement people," Armstrong said, noting that these "very cooperative arrangements" are important sources.
He offered an example of a journalist who heard from a private source a piece of information and then wanted to confirm the information with an intelligence contact. Intelligence contacts may not confirm information because they don't want to talk about it or because they don't know.
If the latter is the case, did the journalist act as an informant merely through trying to confirm the information?
"You talk to these people all the time . . . no one's talking to you for free," Armstrong said, reminding that journalists must always question a source's motives.
One example of a journalist turned accidental spy came from CPJ's Smyth, who reported in El Salvador for CBS radio in the 1980s. Smyth often accompanied photographer Jeremy Bigwood, which Bigwood documented in an American Journalism Review article titled, "The Accidental Spy?"
"[We] cultivated sources together, we told guerrilla sources we wanted to go and cover their actions behind the scenes and that their information would be used [only] for our reports," Smyth said.
Bigwood later found that a government official claiming to be from the U.S. Department of State was reviewing his photographs -- an act which, he said, equated to a reporter turning over his notes. Concerned over why the government was perusing his photographs, Bigwood submitted a multitude of Freedom of Information requests. After seven years of requests, he found that the official never worked for the State Department and the CIA refused to offer information regarding his request.
Like Bigwood, Smyth felt he had "become an unwilling conduit for information."
In light of Pearl's murder, Smyth testified before the U.S. Senate Committee of Foreign Relations in May 2002 on behalf of CPJ.
While he said there was nothing the U.S. government could do to protect journalists -- as any policy aimed at journalists themselves may make things worse -- he asked that the CIA stop using foreign and American reporters as cover.
"The perception or even the rumor that a local journalist works with the CIA would obviously put him or her at considerable risk," he told the Senate committee.
With all government agencies -- be it CIA or Department of Homeland Security -- Smyth said journalists must "maintain a strict firewall" between themselves and any government activities.
Armstrong does not foresee the Homeland Security Department acting in the same fashion as the agencies from which it wishes to acquire intelligence. However, he said: "We have to have a policy that people will not use journalists as American cover."