From the Fall 2001 issue of The News Media & The Law, page 16.
October 17, 2001
The Honorable Donald H. Rumsfeld
Secretary of Defense
Department of Defense
1000 Defense Pentagon
Washington, DC 20301-1000
Dear Secretary Rumsfeld:
In light of the terrorist attacks on September 11, the role of the press in informing the nation about public safety concerns and the military, diplomatic, law enforcement, and intelligence actions of the government will be tested in novel and profound ways. As advocates for journalists and press freedoms, we write to provide the Administration and Congress with steps that we believe are essential for the government to take to ensure that it honors its obligations to the public under the First Amendment.
A free and autonomous press is as central to the preservation of democracy as is a strong military. Indeed, news organizations have a distinguished history in this country of providing the public with essential information during times of warfare and national crisis. Journalists have handled knowledge of troop movements and deployments in a responsible manner during past conflicts, just as they have maintained the confidentiality of domestic law enforcement operations. Military public affairs guidelines themselves acknowledge that the dissemination of timely and accurate information concerning combat operations serves the interests of the U.S. armed forces.
During the Persian Gulf War, however, the Department of Defense inhibited news coverage of combat operations by forcing reporters and photojournalists into small pools under the control of military officials and by attempting to exercise editorial control over news content. The Pentagon and the news media subsequently reached an accord in 1992 regarding coverage of military campaigns that recognized that “open and independent” reporting would be the norm for such coverage. With combat operations now underway in Afghanistan and possibly developing elsewhere, it is time to make good on that guarantee.
Additionally, because this is a crisis on American soil as well as overseas, involving law enforcement and local public health services in addition to the armed forces, information about domestic operations will be as relevant and critical to the public as that about military activities.
President Bush and other national leaders have signaled that incursions against terrorist networks will differ from conventional warfare in that they will involve significant covert action, both on international and domestic fronts. We do not deny that secrecy has a place in these operations. The government should protect information as necessary – but only for as long as necessary – to protect national security. Overclassification dilutes the ability of agencies and others to determine what truly needs protection. It inhibits government officials from communicating effectively, especially if they face threats of criminal prosecution for even harmless disclosures.
Journalistic scrutiny of the war on terrorism and publication of dissenting viewpoints are not signs of disloyalty to the nation, but rather expressions of confidence in democratic self-government and fulfillment of the First Amendment function of holding government accountable. Such scrutiny does not diminish respect for the victims of terrorism or the privacy interests of their families. One overarching principle that must guide government-press relations throughout this difficult period is that decisions about what to publish, including the airing of statements issued by avowed enemies of the nation, must ultimately rest with publishers and broadcasters, not with government officials.
With the nation having confronted for the first time since the Civil War widespread violence and loss of life within its own borders – and continuing to face ongoing threats – the American public is in urgent need of reliable news. The abrupt removal of information from Internet websites maintained by federal agencies, for example, which has picked up pace in recent weeks, defeats public confidence in the openness of its government.
Recognizing these principles and the extraordinary circumstances in which the country finds itself, we urge government leaders to take the following immediate and long-term actions. Most of the immediate steps involve coverage of military operations; many of the long-term ones concern protection of our liberties at home. We recognize that as the situation changes, this list will evolve with it.
The government should promptly:
·Reaffirm the 1992 Pentagon guidelines on coverage of combat operations, including the commitments to 1) provide journalists with access to all major military units and to special forces where feasible, 2) allow news organizations to use their own communications systems to file reports, and 3) utilize press pools not as a standard device but only when specific circumstances so require, such as when military action is conducted in remote areas;
·Activate pool coverage of combat operations if that is, under current circumstances, the most likely method of putting reporters close to such operations;
·Embed reporters in combat situations with troops whenever practicable and consistent with security considerations, as such methods of placing reporters in the field may provide a viable alternative to pool coverage of conflicts in certain circumstances;
·In consultation with representatives of the news media, establish a clear set of military security ground rules for anti-terrorism initiatives in Afghanistan and elsewhere;
·Work with the news media to ensure that uplink capabilities with adequate bandwidth exist to allow information to be transmitted in real-time – or at least with some immediacy – from military theaters of operation back to the American public;
·Prohibit military officials from engaging in prior security review of news reports;
·Exert pressure on this nation’s allies and other foreign governments to grant visas to U.S. journalists wishing to cover military and diplomatic events as they unfold overseas and impress upon foreign governments that threats against journalists or efforts to censor their work are illegitimate; and
·At home, remove the remaining limitations on flights by helicopters or other aircraft owned or leased by news media, in a manner consistent with public safety, and curtail indiscriminate obstructions to newsgathering and photojournalism, including any such barriers put in place solely in the name of protecting personal privacy.
Over the course of the conflict, however long its lasts, the government should also:
·Establish a joint information bureau in any area where significant military operations occur;
·If security review of news content is undertaken, 1) conduct such review as quickly as possible, as close to the source of news as possible, and only for the limited purpose of ensuring that troop movements and operations are properly protected; 2) reject across-the-board rules stipulating that certain information may never be published under any circumstances, and 3) examine news content in context and on a case-by-case basis by taking into account the actual dangers presented by each individual story;
·Release to the public as soon as possible information concerning the identities, charges, and court proceedings against persons arrested and detained in the United States as suspected terrorists and material witnesses pertaining to the September 11 attacks;
·Make available on a prompt basis the identities of all injured or deceased victims of terrorism against the United States, as well as the identities of any U.S. military persons who are casualties of the nation’s war on terrorist networks;
·Refrain from using journalists as tools to gather intelligence and maintain the current policy forbidding intelligence agents from posing as reporters, as such practices compromise the relationships between the press and its sources and put the lives of journalists at risk;
·Uphold the Freedom of Information Act (“FOIA”), which requires federal agencies to make information available on request unless it falls under one of the nine exemptions in the law;
·Provide, as called for by the Electronic Freedom of Information Act of 1996, expedited review of FOIA requests submitted by news organizations concerning terrorists attacks or threats against American interests and the nation’s response thereto; and
·Allow media organizations and members of the public to observe or photograph evidence of terrorist assaults located on public property, as long as doing so does not interfere with rescue and clean-up workers.
California First Amendment Coalition
Kent Pollock, Executive Director
First Amendment Project
David Greene, Executive Director
Freedom of Information Center
Missouri School of Journalism
Charles N. Davis, Ph.D., Executive Director
Investigative Reporters & Editors
Brant Houston, Executive Director
Jane E. Kirtley
Silha Professor of Media Ethics and Law
Director, Silha Center for the Study of Media Ethics and Law
School of Journalism and Mass Communication
University of Minnesota
National Coalition Against Censorship
Joan E. Bertin, Executive Director
National Newspaper Association
Kenneth B. Allen, Exec. Vice President & CEO
National Press Club
Richard A. Ryan, President
Reporters Committee for Freedom of the Press
Lucy A. Dalglish, Executive Director
Society of Professional Journalists
Al Cross, President
Student Press Law Center
Mark Goodman, Executive Director