Press vs. Military
Justice or the First Amendment.

By James S. Robbins, a professor of international relations at the School for National Defense Studies at the National Defense University.
October 29, 2001 12:50 p.m.

Editor’s note: The opinions expressed in this article are the author's and do not necessarily reflect the views of NDU, the Department of Defense, or the government of the United States.

est easy, Americans. Your freedoms are secure. As you read this, a select team of specialists is operating in South Asia with orders to "smoke out" their secretive quarry. Loren Jenkins, senior foreign editor of National Public Radio, has dispatched them. Jenkins instructed his reporters to locate the American forces using language chillingly similar to that used by the president in describing our objective in pursuit of terrorists. As soon as they find out where the troops are, they are to report it. One may ask what strange psychology compels Jenkins to serve as a de facto auxiliary of the al Qaeda intelligence apparatus? "I don't represent the government," the federally funded journalist explains. "I represent history, information, what happened."

He represents history? Is he on a retainer? Bizarre statements like this only ratify the intuitive suspicions held by many Americans that the press cannot be trusted. Jenkins writes off this wariness to the fact that "they all blame the press for losing the war in Vietnam," a fairly simple and simplistic analysis on his part — which has the benefit of being true.

There is, in fact, an essential culture clash between journalism and the military, especially in wartime. Military operations rely on secrecy, which is necessary to preserve the element of surprise, a recognized force multiplier since well before Sun Tzu declared it so. Secrecy is particularly important in the type of conflict now being waged, in which covert operations and Special Forces play a leading role. The type of information Jenkins is seeking — the number, location and presumably movements of our troops — would obviously be of incalculable value to our enemies.

So why report it? Journalists are driven by the pursuit of objectives at variance with secrecy — sensation, scoops, good visuals. The reporters' bottom line is notoriety; and in the case of commercial journalism, ad revenues for their parents. Wrap this up in some self-inflating rhetoric about "the public's right to know" and you have a war correspondent. I assume that the 13 or so NPR reporters are even now trudging around the North West Frontier Province of Pakistan looking for Green Berets. I can visualize the scene: a pup reporter freshly outfitted in Banana Republic gear, blundering into a sentry post after having been observed approaching for a few miles, and becoming a temporary guest of the government. I have no doubt that the reporter would be very well taken care of and given all of the personal interest stories he (or especially she) could handle; and in the process discover that these are a great bunch of guys that no American would ever want to endanger, regardless of the nature of the scoop. The reporter would have an epiphany. It would be an Ernie Pyle moment.

But for every good-natured Ernie there is an evil Bert, cloaking himself in the First Amendment as though granted unlimited power and conferred special status on a select group of elites. Regrettably, to a certain extent this is true — journalists have privacy rights in court that other citizens do not enjoy. But they also face constitutional limits. Some reporters might benefit from a close reading of Near v. Minnesota (1931), in which Chief Justice Hughes wrote, "no one would question but that a government might prevent … publication of the sailing dates of transports or the number and location of troops." Hughes, who had a much more authentic claim to the status "representative of history" than Jenkins, held operational security (OPSEC) to be a self-evident truth that "no one would question." The safety of the men on the front line is such an overriding countervailing state interest that it even passes the test for prior restraint — not simply denying access to troops but banning publication of their whereabouts. This principle was upheld even in New York Times Co. v. United States (1971), the Pentagon Papers case, which in other respects gave great latitude to the press. Jenkins' assertion that "the game of reporting is to smoke 'em out" betrays his thoughtless approach to the same question. This is no game; this isn't a question of a bureaucrat trying to conceal a cost overrun; it is a matter of life and death.

Suppose NPR had found out about and reported the recent Ranger mission to Kandahar before the fact. Why? For whose benefit? Would a story like that serve any public purpose? On the contrary, it would be extremely detrimental. Most journalists seem to understand this. For example, the press has generally cooperated with the Pentagon request that reporters not use the full names of service people in the war zone. Doyle McManus, Washington bureau chief of the Los Angeles Times, allowed that this was not "a major blow to the First Amendment." Very gracious of him, but understand why this restriction is so important. When the rebels in Chechnya learned the names of Russian troops they used the Internet to track down personal information about them, then conducted psyops against the soldiers and their families back home. Imagine terrorists calling wives or children of U.S. troops and telling them they had just skinned the face from a still-living husband or father (N.B. — not an unknown practice in that region). Somehow I don't see a constitutional crisis in not facilitating this kind of psychological warfare.

OPSEC is tough enough without a self-appointed Voice of History running around. One could easily conjure hypotheticals that would illustrate what Chief Justice Hughes saw as self-evident — e.g., a reporter willfully giving away the secrets of D-Day, spoiling the deception operations designed to divert the Nazis from the true landing beaches, and leading to the failure of Operation Overlord. First Amendment freedom or act of treason? You decide.