Gulf War Censorship Word 2003

University of Colorado at Denver

REPORTING IN THE NON-FREE PRESS (THE CENSORSHIP PROCEDURES IMPOSED BY THE DEPARTMENT OF DEFENSE DURING THE PERSIAN GULF WAR AND THE CONSTITUTIONALITY BEHIND THEM)*

Troy S. Knapp

Fundamentals of Mass Communications 1000-1200 T/R Dr. Cheryl Pawlowski July 1, 1993

* The terms "press" and "media" are used interchangeably throughout this paper. "Press restrictions" include restrictions on all form of media coverage, including television, radio, wire service, photography, and print.

During the Persian Gulf War, the Pentagon imposed the tightest restrictions on battlefield press coverage in American military history. They 1

did this through two techniques; primarily, through the use of prepublication review by subjecting all news gathered to a security review before it could be published, and secondarily by restricting media access to the battlefield through the use of press pools. This censorship unarguably 2

made the Persian Gulf war the most undercovered conflict in American military history. Despite the claim of the unconstitutionality of these press 3

restrictions, they are not patently unreasonable considering both the case law behind them and the virtual revolution in warfare and communications technology in the past few years. Therefore, this paper will assert that the 4

press restrictions placed upon the media during the Persian Gulf war did not violate the First Amendment to the Constitution of the United States of America. The First Amendment states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or of the right of the people peaceable to assemble and to petition the government for a redress of their grievances. 5

The founding fathers deemed the freedom of the press so important they guaranteed its freedom in the First Amendment. However, implied in this 1

Thomas B. Rosenstiel, Gulf War No Model for Coverage, Media Tell Pentagon, Los Angles Times, July 1, 1991 2 Michelle D. Boydston, Press Censorship and Access Restrictions During the Persian Gulf War: A First Amendment Analysis, Loyola of Los Angles Law Review, vol. 25, no. 3 (Loyola Press, 1992) pg. 1073 3 Ibid. p. 1074. 4 Matthew J. Jacobs, Assessing the Constitutionality of Press Restrictions in the Persian Gulf War, Stanford Law Review, vol 44, no. 3 (Stanford Press, Stanford Ca., 1992) p. 675. 5 United States Constitution's First Amendment, written Sep, 25 1789, ratified 1791, (italics added)

guarantee is the limited right of media personnel to access information. This implication was taken to its extreme during the Persian Gulf War when press access was limited through pre-publication review and the use of reporting pools. The pre-publication review required all news reports to be screened by military censors prior to their release.

6

This action angered the press

because it interfered with their ability to disseminate their stories once they were attained.

The Pentagon, however, insisted that the screening of all

7

news stories was necessary to ensure the operational security of American military forces.

8

While the Department of Defense guidelines expressly

state that news stories will not be reviewed for their "potential to express criticism or cause embarrassment" many journalists were concerned about 9

the possibility of governmental abuse.

10

The primary critics of pre-

publication review claim that the security review constitutes prior restraint and is therefore unconstitutional.

Two things need to be said about the

prior restraint exhibited during the Gulf War; primarily, in some narrowly defined instances it has been found to be constitutional, and secondarily, the United States media has demonstrated in the past that it can not be self policing in matters dealing with national security. In 1931 the United States Supreme Court issued an opinion on the constitutionality of prior restraints relating to military related information in

6

Karl T. Olson, The Constitutionality of Department of Defense Press Restrictions on Wartime Corespondents Covering the Gulf War, Drake Law Review, vol. 41, no. 3 (Drake University Law School Press, 1992) p. 553 7 Ibid. 8 Ibid. 9 For a complete list of Department of Defense Guidelines for News Media see Appendix A. 10 Olsen, p.534.

the case of Near vs. Minnesota ex rel. Olsen.

In dicta, the Court created a

11

striking exception to the general rule that prior restraints are unconstitutional: [T]he protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. [No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates and transport or the number an location of troops.] 12

Supreme Court Justice Brennen backed this up in the land mark case of New York Times Co. vs. United States, involving the now famous pentagon papers when, in his concurring opinion, he stated that "the First Amendment bans prior restraints and this ban can only be overridden in a time of war." Justice Stewart agreed saying that "[prior restraints would be 13

allowed where the information could] surly result in direct, immediate and irreparable danger to our nation or its people."

14

Throughout the majority of American military history legitimate press censorship has been almost non-existent. This is due primarily to the lack 15

of speedy military and civilian communications capabilities. 11

16

Boydston, p. 1089. This case revolves around a Minnesota statute that mandated "Any person who, as an individual, or as a member or employee of a firm, or association or organization, or as an officer, director, member or employee of a corporation, shall be engaged in the business of regularly or customarily producing, publishing or circulation, having in possession, selling, or giving away (a) an obscene, lewd and lascivious newspaper, magazine, or other periodical, or (b) a malicious, scandalous and defamatory newspaper, magazine or other periodical, is guilty of a nuisance, and all persons guilty of such nuisance may be enjoined, as hereinafter provided." 12 Boydston, p. 1090. 13 Ibid. 14 Olson, p. 695. 15 Michael Linefield, Freedom Under Fire: U.S. Civil Liberties in Times of War, (South End Press, Boston MA., 1990) p. 85. 16 Olson, p. 707.

Quite

expectedly, as the capacity of communication has grown so has the need for effective pre-publication review.

The critics of this claim that the

military should institute a system of voluntary censorship and create specific guidelines for the media to follow, and if any reporter were to break the voluntary censorship, or specific guidelines, they could have their accreditation striped.

17

After all, the press is very careful and would not

knowingly publish information harmful to legitimate United States causes.

18

The danger here lies in what the reporters and editors don't know. In the field of military intelligence many seemingly insignificant things carry vitally important information.

19

While the press has shown considerable

carefulness in the past, they can be unaware of the underlying importance of the information they are reporting.

20

For example, during World War II, a

Chicago tribune corespondent reported the names of Japanese warships used at Midway.

21

In doing this he had revealed to the Japanese that the

Allies had broken the Japanese naval code.

22

While this breach of security

proved inconsequential, the potential for horrendous damage is quite evident. A more recent example is the photograph shown in appendix D. 23

This photograph was taken by a French photographer

25

24

not under the

auspices of the United States Department of Defense Guidelines for News 17

Boydston, p.1103. This is the crux of a statement made by Dr. Cheryl Pawlowski on June 24, 1993 at the University of Colorado at Denver, during a visual presentation given on this topic. 19 Colonel Robert Debs Heinl, Jr., Handbook for Marine Non-Commissioned Officers, (Naval Institute Press, Annapolis M.D., 1988) p. 163. 20 Jacobs, p. 682. 21 Ibid. 22 Ibid, p.683. 23 Ibid. 24 Dominique Aubert, In the Eye of Desert Storm, Photographs of the Gulf War, (Harry N. Abrams, Inc, Publishers, New York, 1991) p. 60-61. 25 Ibid. 18

Media.

26

In it we see a patriot missile flying over Tel Aviv, Israel on its way

to intercept an Iraqi Scud.

27

The inherent danger of publishing, through

visual images, the location of an Allied Patriot missile battery is self evident. The need for pre-publication review becomes exponentially greater when it deals in the realm of television.

Even the most careless news-

28

paper corespondent will have their work scanned by an editor that has the ability to cut damaging information, while the words of an uncensored television reporter goes straight form his mouth to Saddam Hussain's ears.

29

In this age of satellite communications information can be broadcast and received in seconds, and information broadcast to the United States can just as easily be intercepted by Baghdad.

30

Pre-publication review is the

only sure-fire way of ensuring that the enemy does not receive information it could use against United States Forces in war.

31

The second form of official censorship used in the Gulf War was that of press pools.

32

The military provided battlefield access to accredited

reporters on the stipulation that they follow Department of Defense guidelines.

33

The primary limiting feature of these guidelines was the use of

media pools, in which the participants agreed to pool and share there stories and photographs with the other members of the pool. 26

34

Media

See appendix A. Aubert. 28 Jacobs, p. 709. 29 Ibid. 30 Olson, p. 534. 31 Ibid. 32 Boydston, p. 1043. 33 Olson, p. 531. (For a complete list of the Department of Defense Guidelines for News Media; Central Command Pool Membership and Operating Procedures; and, Operation Desert Shield Ground Rules, please see Appendix A through C). 34 Ibid. 27

personnel not participating in theses pools were officially denied access to United States Armed Forces.

35

The press had three primary complaints about the pool system. The 36

first argument revolved around unilateral media access.

37

The United States

Military, despite the massive press corps within the area of operations, allocated a scanty 126 slots for reporters, camera operators, and technicians.

38

Furthermore, many smaller and offbeat news organizations

were never included in any press pools.

39

Though, it should be noted, that

when the logistics of the press pools were put into place the Pentagon was informed by the Saudi Arabian government that the Saudis would only provide one visa to any one press organization.

40

The second complaint was

the military's close observation of the reporters who were operating in the press pool system.

41

In agreeing to participate in the press pools the

correspondents agreed to be escorted by public affairs officers onto the battlefield.

42

The press complained that the presence of public affairs

officers at interviews with enlisted soldiers inhibited the soldiers, who were less candid that they might have otherwise been.

43

The third complaint

about the pool system was that the military had the potential to use it as a reward and punishment on the basis of the stories the correspondents

35 36 37 38 39 40 41 42 43

Jacobs, p. 710. Jacobs, p. 689. Ibid. Ibid. Boydston, p. 1077. Olson, p. 531. Jacobs, p. 690. Ibid. Ibid.

wrote.

44

Writing favorable stories resulted in a slot on the press pool, while

unfavorable stories almost guaranteed exclusion from the press pools.

45

In light of all of these complaints it is necessary to point out that the basic tenets of the press pools were agreed upon by both the press and the military.

46

After the media outrage at the blatant and unconstitutional

censorship imposed during the invasion of Grenada, the Department of Defense was forced by public pressure to review its procedures regarding media coverage of military operations.

47

At the request of the Chairman of the Joint Chief of Staff, a panel of retired media and military personnel representing the four branches of the service convened to make recommendations regarding the management of media-military relations during hostile military operations.

48

The panel

made eight recommendations and prefaced them by saying that the "...media should cover [United States] military operations to the maximum degree possible consistent with mission security and the safety of [United States] forces."

49

It further went on to recognize that the media and the

military have concurrent responsibilities with respect to coverage of military operations.

50

The panel made eight recommendations, including

the creation of media pools. 44

51

Ibid. Ibid. 46 Olsen, p. 521. 47 Ibid. 48 Ibid. 49 REPORT BY CHAIRMAN JOINT CHIEFS OF STAFF MEDIA-MILITARY RELATIONS PANEL 1 (1984). 50 Ibid. 51 Ibid. These recommendations were: 1. "That public affairs planning for military operations be conducted concurrently with operations planning." 2. That media pools be employed during initial military operations to provide "the media with early access to an operation." 45

The process for limitation of press access to the battlefield was well defined, both during and prior to the Gulf War. constitutionality of this process?

52

But, what about the

It has already been established in the

argument of pre-publication review, based on the case of Near vs. Minnesota ex rel. Olsen, that the government may not suppress the dissemination of information in the media's possession except under extreme instances, such as war.

53

This does leave the open question, however, as to

what the government may do to prevent the news media from acquiring information in the first place.

54

In other words, 'Does the press have a

constitutional right to acquire information from the government?'

55

To answer the constitutionality of this question we need to look at cases not dealing directly with the media's right to access directly.

This

exact scenario has been brought to the Supreme Court once and the Court of Appeals for the District of Colombia once.

56

The Supreme Court case was Flynt vs. Weinberger, in which the publisher of Hustler filed suit against the Secretary of Defense and others, challenging the censorship imposed during the invasion of Grenada in 3. That the Secretary of Defense determine whether a pre-established list of accredited correspondents or news agency list of accredited correspondents be used to fill the media pools. 4. "That a basic tenet governing media access to military operations should be voluntary compliance with security guidelines and ground rules established by the military." 5. That military planning include sufficient equipment and personnel to assist corespondents covering an operation. 6. That the military dedicate communication facilities to the media. 7. That the military provide transportation support to the media. 8. That senior military public affairs representatives and news origination representatives meet on a regular basis to improve military-media cooperation. 52 Please see Appendix A-C and footnote 53. 53 Jacobs, p. 711. (Please see Page 3 and footnote 13 for the basis of Near vs. Minnesota ex rel. Olsen). 54 Ibid. 55 Ibid. 56 Olsen, p. 525, 527.

1983.

57

The second case, before the Court of Appeals for the District of

Colombia, was during the waning days of the Persian Gulf War, during the case of Nation Magazine vs. the United States Department of Defense.

58

During this case several news organizations filed suite against the Department of Defense challenging the constitutionality of the Department of Defense press restrictions issued during the Persian Gulf War.

59

Both cases were ruled moot under prudential concerns and Article III case and controversy requirements.

60

These basically state that a case

becomes moot when "...the issues presented are no longer 'live' at the time of judicial review."

61

Unfortunately, with the current trend of fast, surgical

strikes, and rapid insertion and displacement warfare it would be physically impossible to bring a case to court while the issues are still 'live'.

62

The Supreme Court has, in a line of cases, recognized a limited First Amendment right of access to information.

63

The three most striking cases

are Brazenburg vs. Hayes, Pell v. Procunier, and Globe Newspaper Co. vs. Superior Court.

64

In Brazenburg vs. Hayes

a newspaper reporter wanted First

Amendment protection to shield him from being forced to divulge confidential information to a grand jury on the basis that his right to gather news required that he keep his sources confidential.

65

The court disagreed

with this argument, and stated that the First Amendment did not protect 57 58 59 60 61 62 63 64 65

Ibid, p. 525. Ibid. Ibid. Ibid, p. 527. Ibid. Heinl. Jacobs, p.711. Boydston; Olsen. Olsen, p. 523.

him from responding to grand jury investigations.

66

In its conclusion the

court noted: Despite the fact that news gathering may be hampered, the press is regularly excluded from grand jury proceedings, our own conferences, the meeting of other official bodies gathered in executive session, and the meetings of private organizations. News men have no constitutional right of access to the scene of crime or disaster when the general public is excluded, and they may be prohibited from attending or publishing information about trials if such restrictions are necessary to assure a defendant a fair trial before an impartial tribunal. 67

In ruling so, the Court claimed that press privileges do not rise to entitlement, while the fact that the media does enjoy such privileges cannot be overlooked.

68

Seemingly, the Court hinted at a limited First Amendment

right of access to information. In Pell vs. Procunier, the press claimed it had a constitutional right to interview

specifically-named

prison

inmates.

69

While

the

court

ac-

knowledged that the press was extended some First Amendment protection it declined to extend that protection to correspondents seeking access to prisons. In this case Justice Stewart said: 70

The Constitution does not...require government to accord the press special access to information not shared by members of the public generally. It is one thing to say that a journalist is free to seek out sources of information not available to members of the general public....It is quite another thing to suggest that the Constitution imposes upon government the affirmative duty to make available to journalists sources of information not available to members of the public generally. 71

66 67 68 69 70 71

Ibid. Jacobs, p. 712. Ibid. Ibid, p. 524. Ibid. Ibid.

The Court concluded this case by stating that the Constitution imposed no duty on prison officials to provide press access to information not available to the general public.

72

A few years later in the case of Globe News Paper Co vs. Superior Court, a news paper company challenged a state statute closing all trials involving sex offenses against minors.

73

While the Court ruled in favor of

Globe News Paper Co., it did recognize that "the right of access was not absolute, and that the government could deny access to the press and the public if a compelling government interest was demonstrated".

74

Because the Court failed to reach the merits of Flynt vs. Weingerger, and Nations Magazine vs. United States Department of Defense we have to extrapolate the limited right of the press's access to hostile military operations from the three cases discussed earlier. The common thread that links Brazenburg vs. Hayes, Pell vs. Procunier, and Globe Newspaper Co. vs. Superior Court is that they all recognize the right of press access is not inherently guaranteed in the First Amendment. Critics of the press restrictions will find no relief in the First Amendment and the mountain of judicial rulings that have followed. Prepublication review has been found to be constitutional in the past, with the two most prevalent cases being Near vs. Minnesota ex rel. Olsen and New York Times Co vs. United States.

75

Both of these cases set forth the right of

pre-publication review so long as it fit a narrowly defined governmental interest, as it did in the Persian Gulf War. 72 73 74 75 76

Boydston, p. 1097. Olsen, p. 525. Boydston, p. 1098. Please see footnote 13 and 15. Jacobs, p. 694.

76

In the age of real time

communications

capabilities

the

potential

for

disclosing

damaging

information is great. These damaging disclosures include everything from a story that might alert the enemy of an impending attack, to a television broadcast that could give away a units location by showing surrounding terrain.

77

Even photographs of uniform insignia and the types of uniforms

worn provide potential intelligence information to the enemy.

78

Therefore,

positioning of military censors to review all news stories certainly serves the governments interest in maintaining operational security. The hope of finding a reprieve from the press pool system in the current judicial quagmire is just as bleak. The right of journalistic access to news, or to the places where news is found, has never even been recognized by the Supreme Court.

79

Further, many cases specifically state that

no such constitutional right exists, except as a figment of the publishers imagination.

80

By current case law, the government is only required to show

that the press pool restriction is reasonable.

81

The government can prove

this with the arguments of surprise, access, and agreement.

82

The first argument revolves around surprise. It is impossible for the military to plan massive secret deployments, like those used in the Gulf War, under intense media scrutiny.

83

Secondly, the media was provided

access to the battlefield, though it was under the constraint of public affairs officers.

84

77 78 79 80 81 82 83 84

Thirdly, the media's heavy complaints about the press pool

Ibid. Heinl, p. 126. Jacobs, p. 678. Ibid. (This is based on the findings in the case of Branzburg vs. Hayes) Olsen, p. 533. Jacobs, p. 721. Boydston, p. 1106. Jacobs, p. 722.

system don't hold up under scrutiny because it was a product of advanced negotiations between the pentagon and the press.

85

In conclusion, the debate concerning the constitutionality of the press restrictions imposed during the Gulf War is over, and the Pentagon has won with an overwhelming amount of judicial evidence on their side.

85

Ibid.

BIBLIOGRAPHY Aubert, Dominique. In the Eye of Desert Storm, Photographs from the Gulf War. New York: Harry N. Abrams, Inc., Publishers, 1991. Boydston, Michelle. Press Censorship and Access Restrictions During the Persian Gulf War: A First Amendment Analysis. Loyola of Los Angles Law Review, vol. 25, no. 3, Loyola Press, 1992. Clark, Ramsey. U.S. War Crimes in the Gulf. New York: Thunders Mouth Press, 1992. Heinl, Robert. Handbook for Marine Non-Commissioned Officers. Annapolis, M.D.: Naval Institute Press, 1988. Jacobs, Matthew. Assessing the Constitutionality of Press Restrictions in the Persian Gulf War. Stanford Law Review, vol. 44, no. 3, Stanford Press, 1992. Linefield, Michael. Freedom Under Fire: U.S. Civil Liberties in Times of War. Boston, M.A.: South End Press, 1990. Olson, Karl. The Constitutionality of Department of Defense Press Restrictions on Wartime Corespondents Covering the Gulf War. Drake Law Review, vol. 31, no. 3, Drake University Press, 1992. Rosenstiel, Thomas. Gulf War no Model for Coverage, Media Tells Pentagon. Los Angles Times, July 1, 1991. United States Marine Corps Institute. Intelligence Brief: Southwest Asia: 1991. Specialized Skill Training Department, Government Printing Office, 1991.