"Security Review" and the First Amendment
Lee, William E., Harvard Journal of Law & Public Policy
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)
I. PRINCIPLES FOR NEWS MEDIA
Of the many myths fathered by the Vietnam War, probably the biggest was that we lost because of uncensored, free-ranging press coverage. …