LENGTH: 15185 words

NOTE: SHOCK AND AWE: DOES THE FIRST AMENDMENT PROTECT A MEDIA RIGHT OF ACCESS TO MILITARY OPERATIONS?

Karen C. Sinai*

* Productions Editor, Cardozo Arts & Entertainment Law Journal; J.D. 2004, Benjamin N. Cardozo School of Law; B.A., 1999, Washington University in St. Louis, summa cum laude. The author would like to thank Professor Marci A. Hamilton for her insight and guidance, as well as the staff and editors of the Cardozo Arts & Entertainment Law Journal for their hard work and commitment. This Note is dedicated to Leor Sinai, for his endless love and support.

SUMMARY:
... Outraged, the journalism community demanded an explanation: on what basis could the U.S. military prevent journalists from reporting on aspects of military operations in Afghanistan or any other theater of operations? As in previous administrations, Pentagon officials cited "national security" concerns to justify limitations on the media's access to Operation Enduring Freedom in Afghanistan. ... However, they sometimes may provide the only means of early access to a military operation. ... B. The Media Does not Have a Constitutional Right of Access to the Battlefield ... Thus, the standard articulated invites the invalidation, in several ways, of a governmental regulation or practice that suppresses an alleged constitutional right of access: (1) the regulation or practice may not further a governmental interest but merely aim to suppress expression; (2) the regulation or practice may overextend beyond what is necessary to reach its stated purpose; and (3) if the regulation or practice does further an important governmental interest, it may do so unreasonably given the time, place, and manner of the communicative activity. ... It would seem the only interest the government seeks to protect in restricting access to this information, as it plows ahead in the war on terror, is morale. ... This conclusion is not to say that the media may not receive the protection of the First Amendment in challenging a government restriction on access to the battlefield. ... TEXT:
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Introduction
On February 10, 2002, Doug Struck, a reporter with The Washington Post, headed toward Zhawar, Afghanistan, where a missile fired by a U.S. spy plane six days earlier had killed suspected members of Al Qaeda. n1 Struck wanted to verify for himself, and for the readers of The Washington Post, whether Osama bin Laden may have been one of the victims. n2 However, as he neared the missile impact area, he was stopped in his tread: "if you go further, you would be shot." n3 These were the words of the commanding officer in the military zone. n4 Struck, an American journalist, was restrained at gunpoint by the U.S. military for trying to enter a missile impact area to cover the aftermath of a U.S. strike. n5

Outraged, the journalism community demanded an explanation: on what basis could the U.S. military prevent journalists from reporting on aspects of military operations in Afghanistan or any other theater of operations? n6 As in previous administrations, Pentagon officials cited "national security" concerns to justify limitations on the media's access to Operation Enduring Freedom in Afghanistan. Assistant Secretary of Defense (Public Affairs) ("ASD(PA)") Victoria Clarke defended the military's dealings with the media stating "it's a reflection of the often confusing and shifting [*180] nature of a very unconventional war." n7 To members of the media, indications of an "unconventional war" translate to restricted access and incomplete coverage of military conflicts for the American people. n8

Operation Iraqi Freedom demonstrated that what the military takes away, it can give back. With journalists embedded n9 in every military unit, media coverage of the war in Iraq was the antithesis of the coverage of the war in Afghanistan, as far as press freedom was concerned. n10 However, while media frustrations with military restrictions were placated in Operation Iraqi Freedom, the question of whether the military may limit press access to the battlefield has remained. Given the war on terror will not likely end with Iraq, n11 embedding might not be the press coverage modus operandi [*181] in future military operations. Moreover, if history is any indication, media access to U.S. conflicts will probably face "national security" roadblocks ahead. n12 Thus, the question remains: are military restrictions of press access to military operations a violation of the First Amendment? n13

This Note analyzes whether the press has a constitutional right of access to the battlefield, articulates why the press has failed in its attempts to challenge access restrictions in court, and concludes that the media does not have a constitutional right of access to military operations. However, this Note does contend that the First Amendment may protect the media's right to access the battlefield in very limited circumstances.

Part I discusses the importance of the press as an independent monitor of government activities, contrasted with the Executive's prerogative during war. Part I further demonstrates how the unconventionality of the war on terror impacts the freedom of the press, and discusses the symbiotic relationship between the military [*182] and the media during war. Part II analyzes the military's restriction of press access to the battlefield during Operation Enduring Freedom, and its stated justifications for these restrictions.

Part III examines claims brought by the media challenging the government's access restrictions in previous conflicts, and explains why they failed. Part III further argues that the media does not have a constitutional right of access to the battlefield per se, but that the First Amendment may protect a right of access when necessary for the maintenance of a republican form of government. Part IV articulates a standard by which courts should adjudicate a right of access claim, and provides a guide to articulating a compelling claim. Finally, Part V applies the test proposed in Part IV and postulates a hypothetical right of access victory for the media.

I. Background

A. Freedom of the Press
The press' function as a monitor of government activity existed before the conception of the First Amendment or the government of the United States. n14 Observations about the leadership communicated through the press were vital to an informed debate about the optimal form of government for the new nation. n15 Thus, the importance of an ungoverned press was evident to the Framers as they convened to draft the Constitution. n16 The resulting Free Press Clause in the First Amendment is continuously upheld as a staple of American democracy, distinguishing the press as a fourth branch n17 of the federal government.

The media's role in democracy today is as it was at the birth of [*183] the nation, namely "to serve the governed, not the governors." n18 A free press is critical to the survival of a democracy; it is the only conduit available to the people for objective n19 reporting of those activities by their leaders they cannot monitor themselves, and therefore necessary for meaningful participation in a republican form government. n20 Yet some of the Framers were apprehensive about explicitly codifying the freedom of the press in the Constitution. n21 Robert Whitehall, a delegate to the constitutional convention, prophesized that "tho it is not declared that Congress have a power to destroy liberty of the press; yet, in effect, they will have it, ... for they will have the powers of self-preservation." n22 Indeed history teaches us that the press' freedom to report on the government's activities can be limited in the name of national security, especially when the country is entangled in military conflict. n23

Consequently, Whitehall's premonition applies to the executive branch, which has repeatedly restricted the media's ability to cover this country's conflicts. "Presidents and their military bureaucracies have managed to exploit their expanding war powers to impose a variety of press restrictions, restrictions that were frequently aimed at stopping constitutionally protected statements of [*184] fact or criticism rather than preserving legitimate secrets." n24 While censoring the content of publications generally has been held a violation of the First Amendment by the Supreme Court, n25 restricting the media's access to the battlefield or to information pertaining to ongoing military operations is the most effective and elusive restriction on press freedom not yet addressed by the Supreme Court or Congress. n26

B. The Executive's Prerogative
The President and "the military rely on the fact that [their] power to wage war per congressional declaration is 'the power to wage war successfully.'" n27 In stark contrast to the freedom of the press, "this power requires confidentiality and secrecy." n28 While freedom of the press is a long-standing democratic principle, secrecy in American government also has a long history. The Constitutional Convention of 1787 kept its deliberations secret, which was not out of step with American legislative precedents and practices of the time. n29 "Many proponents of the Constitution considered secrecy essential to the prospects for ratification." n30

Similarly, most wartime presidents considered secrecy essential for military victory and for maintaining national security. n31 The president's sole power to wage war as commander-in-chief, which arguably licenses him with the ability to restrict the press' access to military operations, has thus invited a "reality of presidents [*185] taking unilateral, virtually unreviewable actions in the name of national security." n32 The most drastic instances of unchecked unilateral executive action in military activities abroad occurred as a result of restrictions or denials of media access to the invasions of Grenada, Panama, and the Persian Gulf War.

For the first two days of the 1983 invasion of Grenada, "the media was barred from Grenada and forced to remain on the neighboring island of Barbados." n33 Five days after the invasion began, the press was given free access to the island. n34 "As in Grenada, the media had little access to most of the fighting [in the 1989 invasion of Panama,] and had to glean most of its information from Pentagon briefings." n35 During the Persian Gulf War, "the military instituted a system of press pools that allowed it to control both where reporters traveled and to whom reporters spoke[,]" thereby rendering the pool system "a convenient tool to reward and punish reporters for the stories they wrote, and to keep journalists from learning embarrassing or unfavorable information." n36 Indeed, "the successful results of the Persian Gulf War, at least from the military perspective, actually underscored the notion that the media must not only be controlled for defensive purposes, but that it may also now be used as an offensive weapon." n37

Some argue that this unchecked exercise of presidential prerogative n38 is the very reason why the press should be conferred a [*186] constitutional right to access military operations; n39 that "the free availability of a wide range of opinions and easy access to trustworthy and unbiased news sources is essential anytime for citizens in a democracy to evaluate the actions and decisions of their elected leaders and to hold those leaders accountable." n40 "The necessity of these 'information freedoms' isn't greater during a time of crisessic," however, it is only the stakes are higher. n41 In a traditional war with a traditional media, n42 the arguments to vindicate such a right of access may be strong. n43 Yet, the complexities of warfare today make it difficult to allow the press free access to cover military operations, n44 and the bias n45 and alternative motives n46 which have developed within media bureaus undermine the purportedly [*187] singular goal of the press to enlighten the citizenry with "objective" accounts of the government's military activities. n47

C. How the Unconventionality of the War on Terror Impacts the Freedom of the Press
The war on terror n48 is unconventional in one principle respect: the increased use of special operation forces. n49 The use of such forces, n50 usually in covert missions, is necessary to combat a pervasive enemy with no identifiable military, such as a terrorist organization. n51 The development and use of special operations forces is part of a transformation in the Department of Defense ("DoD") n52 to fight such adversaries by adopting "effects-based operations." n53 [*188] This strategy seeks to win a war by diminishing an adversary's will to fight through less conventional means. n54 This could include, in addition to the use of special operation forces in combat, computer network attacks of financial institutions and communications nodes, as well as the use of diplomatic pressure and deception. n55

It is virtually impossible to embed journalists in, or otherwise allow media coverage of, special operations forces without compromising the integrity of the operation and the safety of the troops. n56 An "effects based operation" requires a military "that does not wait for threats to emerge and be 'validated,' but rather anticipates them before they emerge and develops and deploys new capabilities quickly, to dissuade and deter those threats." n57 The pre-emptive posture required to combat terrorism is not conducive to media accompaniment, especially because the success of the mission hangs on its ability to surprise the enemy. n58 Moreover, the military wants to shrink the time it takes to realize the effects of "effects-based operations," which requires "rapid, decisive operations." n59 [*189] The speed and precision of such operations require agility and discreetness, something that media presence would undermine. n60 Thus, given security and logistical concerns, media coverage of special operations forces is highly unlikely. n61

D. A Forced Symbiosis
While usually antagonistic, n62 the relationship between the military and the media during armed conflict is forced into a symbiosis in order for each institution to achieve its goal. n63 The media relies on the military for access to the battlefield, as well as information on military operations, so that it may publish accounts that are of interest to the public. n64 At the same time, the military "needs the media to galvanize public support behind any armed conflict." n65 Despite this mutual reliance, however, recent conflicts, including those recently fought in the war on terror, demonstrate that the military has the upper hand in its relationship with the media. n66 [*190] The military is able to garner public support through live broadcasts of news briefings despite the media's efforts to undermine the military's objectivity, while the media has no recourse but the blessing of the military to access the battlefield in order to publish first-hand accounts of the country's involvement in military conflicts. n67

Administrative efforts to overcome this imbalance have generally failed. In response to the criticism that followed the unprecedented exclusion of the press from the invasion of Grenada, the DoD appointed a panel to study military-press relations. The Sidle report n68 "contained eight principle recommendations to improve military-press relations, all of which [then] Secretary of Defense Casper Weinberger promised to implement." n69 Nevertheless, the access restrictions imposed early in the Panama invasion rendered the Sidle report a failure. The Hoffman report, n70 issued in response to the access restrictions on coverage of the invasion of Panama, shared the fate of its predecessor when the press faced "the most pervasive restrictions ... enforced throughout the [Persian Gulf] conflict and during the months of mobilization that preceded the fighting." n71

At the start of Operation Enduring Freedom, the media pool bureau chiefs sought a guarantee from Secretary of Defense Donald Rumsfeld that the Principles of Information, n72 which were issued in 1992 in response to press restrictions during the Gulf War, would be upheld and implemented throughout the conflict in Afghanistan. n73 [*191] Despite the Secretary's endorsement and acceptance of these principles, n74 restrictions to access stymied the press in its coverage of the fighting in Afghanistan. However, the Pentagon's embedding initiatives were an affirmation of Rumsfeld's endorsement as the U.S. engaged in war in Iraq. n75

II. Access Restrictions to Foreign Battlefields in the War on Terror
The 1992 Principles of Information and the accompanying Statement of DoD Principles for News Media delineate principles that guide the DoD in managing public access to information and media coverage of DoD activities. n76 The following principles were negotiated n77 by members of the media to secure early access to military operations, and to avoid the pervasive restrictions of the Gulf War in future military conflicts:

Information will not be classified or otherwise withheld to protect the Government from criticism or embarrassment. n78 Open and independent reporting shall be the principle means of coverage of U.S. military operations. n79

Media pools ... are not to serve as the standard means of covering U.S. military operations. However, they sometimes may provide [*192] the only means of early access to a military operation. n80

Military PA [(Public Affairs)] officers should act as liaisons, but should not interfere with the reporting process. n81

While these principles purportedly were to guide DoD in providing media access to military activities, they were more or less ignored by DoD in the early months of fighting in Afghanistan. n82 The attacks in Afghanistan began on October 7, 2001, but journalists were not permitted to join U.S. troops until November 27. n83 On December 6, "marines quarantined reporters and photographers in a warehouse to prevent them from viewing American troops killed or injured by a stray bomb near Kandahar." n84 Such severe press restrictions warranted an apology n85 from ASD(PA) [*193] Clarke, accompanied by a specific plan to facilitate press access to the fighting in Afghanistan; n86 however, this plan was initiated nearly two months after military operations began. n87

In general, Pentagon officials justify access restrictions claiming the war on terror is "a very unconventional war, n88 and the Pentagon is providing as much access as possible consistent with two variables: operational security and host-nation sensitivity." n89 For instance, according to Secretary Rumsfeld, the Pentagon could not facilitate media coverage of one thousand U.S. troops in Uzbekistan and Pakistan throughout Operation Enduring Freedom because [*194] those countries did not wish to broadcast to the rest of the world n90 that they were cooperating with the U.S. military. n91 Additionally, the Pentagon could not allow journalists to accompany special operation forces because "you cannot embed anything in [those missions] without putting everything at risk and altering [them]." n92 And in response to media frustration with DoD's failure to deploy media pools early in the military operations, Rumsfeld stated: "If we had a war that was traditional ... [we would tell you] the place to go ... . I'd be happy to mobilize the pool and send you off but I frankly would not know where to send you." n93 Consequently, if the war on terror will require untraditional warfare to be successful, as the DoD predicts, n94 the media is likely to stumble upon more military access restrictions ahead.

III. Taking The Issue To Court

Recognizing the futility of past administrative efforts to guarantee press access to the battlefield, several media organizations challenged the constitutionality of military restrictions in the courts. n95 However, in all attempts, the plaintiffs' claims were dismissed [*195] either because the controversy was moot, n96 or because the court was reluctant to adjudicate claims with national security implications and therefore deferred to the Executive's discretion. n97 The circumstances of the war on terror generally heighten the hurdles the media is faced with in arguing a First Amendment challenge to the government's restrictions on access to the battlefield. n98 Yet if the press refines its strategy in litigating right of access claims, these circumstances may support, rather than hinder, their efforts. n99

A. Courts are Reluctant to Adjudicate the Media's Constitutional Claims
Courts have generally demonstrated their reluctance toward deciding right of access issues with national security implications by deferring to the Executive's prerogative mainly because the press' claim involves a determination of whether it has a constitutional right to access the battlefield. n100 In declaring access restrictions a violation of an alleged absolute constitutional guarantee, the press frames the issue in the abstract, n101 thus, its supporting arguments [*196] become mere conjecture. n102 "Courts [generally] refrain from deciding issues presented in a highly abstract form, especially in instances where the Supreme Court has not articulated guiding standards." n103 Moreover, the unconventional way in which the war on terror is waged n104 promotes dismissal of access claims asserted in the abstract either because of the courts' reluctance, n105 or because they may present nonjusticiable political questions. n106

For instance, should the media assert a right to join U.S. troops in covert operations, n107 a court would probably dismiss such a claim as nonjusticiable. "[A] court would have neither the power [*197] nor the inclination to review a military determination that the presence of a large cadre of press representatives at a particular time and place would jeopardize the covert nature of a military operation." n108 Similarly, a claim that the press has a constitutional right to cover U.S. troops in Uzbekistan, Pakistan or any other host nation would not survive, either because it presents a political question or because the court will defer to the Executive's discretion. n109

B. The Media Does not Have a Constitutional Right of Access to the Battlefield
The first step towards gaining better footing in court n110 is for the media to acknowledge that the First Amendment does not guarantee an unlimited constitutional right of access to the battlefield. n111 "The right of journalistic access to news, or to places where news is found, is one that the Supreme Court has [rarely] recognized. In fact, many cases expressly state that no such constitutional right exists, except as a figment of publishers' imaginations." n112 It is arrogant n113 of members of the press to insist that the [*198] Constitution imposes upon the government the duty to provide it the opportunity to join soldiers in combat or have on-site coverage of ongoing military operations. n114 Such "First Amendment absolutism has never commanded a majority of the [Supreme] Court." n115

However, "news gathering does ... qualify for [some] First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated." n116 The Supreme Court has referred to a First Amendment right to receive information and ideas. n117 In the context of access to court proceedings, [*199] the Supreme Court "[held] that the right to attend criminal trials is implicit in the guarantees of the First Amendment." n118 Most recently, the District Court of the District of Columbia was "persuaded that in an appropriate case there could be a substantial likelihood of demonstrating that under the First Amendment the press is guaranteed a right to gather and report news involving United States military operations on foreign soil subject to reasonable" security interests. n119 This inclination towards accepting a qualified constitutional right to gather information necessary for the maintenance of "our republican system of government" n120 may be the launching pad for a successful right of access claim.

In articulating an effective right of access claim, however, it is crucial that the press does not insist on a constitutional right to access the battlefield per se. n121 The public right of access to a [*200] courtroom does not translate to a press right of access to a battlefield. n122 "An assertion of the prerogative to gather information must ... be assayed by considering the information sought and the opposing interests invaded." n123 A blanket assertion of the right to open access to the battlefield does not couch the issue in terms where the court can meaningfully consider the "information sought," and unduly invades the military's interests in restricting access. n124 Thus, the press would benefit by focusing the dispute on specific aspects of, or conduits of information pertaining to, military operations, n125 the access to which would pose a minimal threat to operational security, and which are necessary for the maintenance of a republican system of government.

C. The Necessity of a Free Press for a Republican Form of Government
While the media does not have a constitutional right to access the battlefield, the First Amendment may protect a qualified right of access in circumstances where it is necessary for the maintenance of a republican form of government. A republican form of government is a representative form of government, and the Constitution as a whole establishes such a scheme:

There are two fundamental characteristics of representation as adopted by the Framers: the exercise of independent judgment and the maintenance of continual communication with constituents. The constitutional scheme places burdens on both representatives and the people: the former to perform to high standards in the interest of the whole and the latter to monitor and check the former. n126

Thus, the First Amendment embodies more than a commitment to free speech; it also plays a structural role in monitoring the activities of government representatives through communication [*201] with constituents. n127

Accordingly, the structural model of the First Amendment protects the conditions of meaningful communication between the people and their leaders, one of which is the press' qualified right to gather information. n128 When a condition of communication is required for constituents to assess their confidence in the government's activities, it is necessary for the maintenance of a republican and representative form of government. n129 Arguably, media coverage of certain significant military activities on foreign soil may be necessary in order for citizens to measure their confidence in their leaders where no other channels of communication are present. n130 Thus, while not conferring an absolute right of access, the First Amendment may nevertheless protect the media's qualified right in accessing certain military operations if necessary for the maintenance of a republican form of government.

IV. A Guide to Articulating a Well-Pleaded Media Right of Access Claim

A. Deciphering A Standard By Which Courts Should Adjudicate Right of Access Claims
In order to articulate a well-pleaded right of access claim, n131 it is imperative to know the standard by which such a claim will be measured by the court. However, no court has ever dealt on the merits with a claim of right of access to military operations. n132 Nevertheless, [*202] the appropriate standard by which to adjudicate a well-pleaded right of access claim may be gleaned from a review of the standards applied in other Supreme Court cases involving the right to a free press. At one end of a continuum of press clause cases lies the court's deference to the Executive's discretion in denying the media an alleged constitutional right to access the battlefield. n133 At the other end of the continuum is the "heavy presumption" n134 against the Executive's ability to restrain publication of information the media has already attained. n135 Like the standards by which courts have determined the press' right to gather information pertaining to other governmental activities, n136 the standard by which courts are likely to adjudicate right of access claims on the merits will generally fall somewhere in between these two extremes.

"In determining the extent of the constitutional protection [of the free press clause], it has been generally, if not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints upon publication," n137 even when national security is allegedly at stake. n138 In New York Times, Co. v. United States, the Supreme Court rejected the government's assertion that disclosing [*203] the Pentagon Papers n139 would compromise national security. n140 While the Court did not develop a standard by which to decide future prior restraint cases, n141 it denied the government's request to enjoin publication of the classified study because the government did not meet the "heavy burden" n142 of demonstrating that such publication would result in "direct, immediate, and irreparable damage to our Nation and its people." n143 Indeed, the Court's decision, which arguably risked damage to our national security, n144 stands for the principle that prior restraint on publication is the least tolerable infringement on First Amendment rights. n145

On the other hand, restraints on access to information are tolerated in First Amendment jurisprudence under the theory that the freedom of the press to access newsworthy places is limited to [*204] places where the public may go. n146 For instance, in the context of federal prisons, the Supreme Court held that since a Department of Corrections regulation prohibiting face-to-face interviews with inmates "does not deny the press access to sources of information available to members of the general public ... it does not abridge the freedom that the First Amendment guarantees." n147 However, this precept is not absolute. In arriving at this conclusion, the Court articulated a standard that balances the interests of the press in accessing, via face-to-face interviews, newsworthy information from within federal n148 or state n149 prisons, against the interests of the government in prohibiting such access.

Specifically, the Supreme Court enunciated the following standard for determining the constitutionality of prison regulations that limit the First Amendment liberties of the press: "First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression... . Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved." n150 In evaluating the necessity of a regulation, it "must be viewed in light of the alternative means of communication permitted under the regulations with persons outside the prison." n151 Finally, the Court requires that government restrictions on the freedom of the press be reasonable; n152 "the nature of a place, [and] the pattern of its [*205]normal activities dictate the kinds of regulations of time, place, and manner that are reasonable." n153 While the Supreme Court found that the prison regulations restricting the press' right of access satisfied these requirements, the Court's decision in the context of access to criminal trials reached the opposite conclusion.

In Richmond Newspapers, n154 the Court "firmly established ... that the press and general public have a constitutional right of access to criminal trials." n155 In reaching this holding, the Court articulated a balancing test similar to the standard used in the prison cases: "it must be shown that the denial [of access] is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest." n156 In Richmond Newspapers and Globe Newspaper, the Court struck down state statutes summarily prohibiting access to criminal trials as unconstitutional because they were not narrowly tailored to serve the stated governmental interest behind the statutes. n157 In so doing, the Court recognized that "the explicit, [*206] guaranteed rights to speak and to publish concerning what takes place at a trial would lose much meaning if access to observe the trial could ... be foreclosed arbitrarily." n158

Underlying the Supreme Court's decisions in the prison and criminal trial right of access cases is a distaste for arbitrary governmental interference with the press', and indirectly the people's, free discussion of governmental affairs. n159 Thus, the standard articulated invites the invalidation, in several ways, of a governmental regulation or practice that suppresses an alleged constitutional right of access: n160 (1) the regulation or practice may not further a governmental interest but merely aim to suppress expression; (2) the regulation or practice may overextend beyond what is necessary to reach its stated purpose; and (3) if the regulation or practice does further an important governmental interest, it may do so unreasonably given the time, place, and manner of the communicative activity. n161

Applying this standard to a concrete and narrowly focused constitutional right of access claim potentially weakens the government's thus far potent defense that access restrictions are necessary to maintain national or operational security.

It goes too far to suggest that the government must justify under the stringent standards of First Amendment review every regulation that might affect in some tangential way the availability of information to the news media. But ... it is equally impermissible to conclude that no governmental inhibition of press access to newsworthy information warrants constitutional scrutiny. At some point official restraints on access to news sources ... may [*207] so undermine the function of the First Amendment that it is both appropriate and necessary to require the government to justify such regulations in terms more compelling than discretionary authority and administrative convenience. n162

Thus, the challenge for the press is to present a right of access issue that warrants constitutional scrutiny, and compels a court to look behind bright-line and vague generalities about national security, however sound they may seem in the abstract. n163

B. Articulating A Compelling Right Of Access Claim
The standard used to adjudicate right of access claims in the context of prisons and criminal trials involves balancing the interests of the government in restricting access to newsworthy places or persons, versus the interests of the press and the people in accessing information necessary to participate in the free discussion of governmental affairs. n164 In the context of military operations, this standard will likely involve balancing the government's interests in maintaining national and operational security, versus the interests of the people, represented on the battlefield by the press, n165 in accessing information about military operations. Weighing such interests [*208] will require a determination of whether the government's stated security interest is legitimate, and not an arbitrary use of executive authority or for administrative convenience, and whether the information the press seeks to access is necessary for citizens to know in order to effectively participate in a republican form of government.

The government's interest in restricting access to the theater of operations in Afghanistan was host-nation sensitivity n166 and operational security. n167 While the DoD has not elaborated on what "operational security" actually means in the context of the war on terror, the Pentagon Papers Case, and the military's security interests in the Persian Gulf War can provide some insight into what kinds of access restrictions "operational security" legitimately requires. n168 In the District Court hearings of The Pentagon Papers Case, Judge Gurfein n169 was concerned that "a lot of errors can be hidden under the guise of security and that the task at hand was to decide whether there was any way of separating errors from valid security matters." n170 In other words, the government had to prove that the continued classification of the Pentagon Papers was not intended to avoid personal or political embarrassment, but rather [*209]to protect national security. n171 Indeed, a strong message emerging from the Supreme Court's decision was that prior restraints on publication to protect the government from political embarrassment are completely unacceptable. n172

The government had three broad security interests in the Persian Gulf War, each of which might continue to be sufficient to justify access restrictions today: surprise, logistics, and morale. n173 Surprise requires that the media's presence on the battlefield will not disclose confidential information to the enemy that may compromise the integrity of the operation. n174 Logistics encompasses planning for reporters' own safety, as well as preparing a viable battle plan. n175 Finally, morale is aimed at maintaining support among troops, citizens of the United States and other allied nations. n176 Surprise and logistics will likely endure any challenge to [*210] their sufficiency as justifications for access restrictions under the political question doctrine since such claims involve challenges to the tactics, internal functioning and operation of the military. n177 However, morale is a weak justification for access restrictions because the salient interest it seeks to maintain is political self-preservation by avoiding political embarrassment. n178

Consequently, when measured by the standards articulated in prison and criminal trial access cases, n179 the military's interest in maintaining morale encounters several weaknesses. While maintaining surprise and logistics clearly aims at preserving operational security, the connection between morale and operational security is somewhat tenuous. It is true that popular support is crucial to military success, n180 however it is less clear that media coverage of a war can by itself shape a nation's opinion. n181 Thus, a governmental restriction on access to information of great significance n182 in order to protect morale may merely aim to suppress expression, n183 or [*211] overextend beyond what is necessary to reach its stated purpose given the government has methods, other than restricting press access, of increasing public and troop morale, and thus garnering popular support behind the war effort. n184

Yet, the government's interest in preserving morale may nevertheless withstand a press right of access claim if access to the theater of operations, or to information contained therein, is not required to carry on an informed debate crucial to effective participation in a representative government. Both right of access and prepublication cases facilitate an understanding of what pieces of information may be of such significance as to merit First Amendment protection. For instance, in United States v. Progressive, Inc., n185 the court granted a preliminary injunction against a magazine wishing to publish data on how to construct a hydrogen bomb because it could "find no plausible reason why the public needs to know the technical details about hydrogen bomb construction to carry on an informed debate on the issue." n186 Similarly, in J.B. Pictures, Inc. v. Dep't of Def., n187 the court dismissed the media organizations' claim for access to the Dover military base to view the arrival of soldiers' caskets from the Persian Gulf because plaintiffs did not "allege that greater access to Dover will reveal new information about the occurrence or magnitude of casualties in military conflict." n188 Thus, the Dover policy and the Progressive injunction "did not impede acquisition of basic facts, the raw material of a story." n189

While technical details about the military's arsenal are not likely to be included in the raw material of a war story, the occurrence [*212] and magnitude of military casualties probably is. n190 Hence, information crucial for an informed public debate must not merely be newsworthy, but of great national significance. n191 For instance, many people did not understand the risks, dangers, and tragedies that the war in Vietnam entailed.

As a result a large portion of the public felt in 1971 that the consequences of America's military involvement in Vietnam had taken them by surprise, and they were caught unaware because successive administrations had deliberately misled them with regard to Vietnam. The Pentagon Papers were thought to validate this viewpoint. n192

Notwithstanding the heavy presumption against prior restraints on publication, n193 the Pentagon Papers "established that the U.S. government had systematically deceived the American people during several administrations about the purpose of American involvement in South Vietnam, the risks of involvement, and the likely duration, destruction, and costs of the war." n194 Arguably, the purpose and risks of involvement in war, and the duration, destruction, and costs of a war constitute the raw material of the war story. Therefore, the media's access to places that contain such information has a good chance of outweighing the government's interest in preserving morale, n195 and may merit First Amendment protection in court.

V. A Hypothetical Victory For The Press
The war on terror promises to be an unconventional war, n196 [*213] and has also been dubbed a psychological war. n197 It is likely to be longer than most other wars and may stretch across several countries. n198 Politicians tell us that we have probably witnessed but a fraction of its gripping fear. n199 Will we know when the worst has come?

What if the United States government decides to drop a nuclear or biochemical weapon on one of our relentless enemy's capitals? What if the military does not allow journalists to report on the dropping from above, n200 or register the destruction from the ground? n201 If the military restricts the press' access to affected locales, to the point where journalists cannot report on the use or effects of devastating arsenal, the press will have a strong claim that such a restriction is a violation of the First Amendment. n202

The press will assert that it has constitutionally protected [*214] rights to be notified of a nuclear or biochemical attack when it occurs, n203 and to access the affected zones to report on the destruction in the aftermath. n204 Unlike the right of access claims asserted in connection with previous military conflicts, n205 this claim does not ask a court to hold that the press has an absolute constitutional guarantee to access military operations; rather, it is narrowly tailored to a specific set of circumstances, namely the military's use of arsenal that causes massive destruction or contamination of populations. Therefore, a court will not hesitate to adjudicate this claim and defer to the Executive's judgment, because doing so will not "limit the range of options available to the commanders in the field in the future, possibly jeopardizing the success of military operations and the lives of military personnel and thereby gravely damaging the national interest." n206 Moreover, this claim does not pose a political question because it does not challenge the internal functioning and operation of the military. n207

Furthermore, this claim states the issue in a way that a court can meaningfully consider the information sought, and weigh it against the government's interest in restricting access to that information. n208 The press can make a compelling argument that the information it seeks on the military's use and effects of nuclear or biochemical weapons is part of the "raw material" of the war story. As such, the information sought will significantly effect the people's [*215] position vis a vis their leaders' actions in the war on terror, n209 and the government's restriction impedes acquisition of these fundamental facts. n210 Given that military operations will cease in an area that receives such a devastating blow, the government cannot legitimately assert that the restriction is necessary to protect its interest in surprise and logistics. n211 It would seem the only interest the government seeks to protect in restricting access to this information, as it plows ahead in the war on terror, is morale.

Consequently, the government's interest in restricting the press's ability to report on the use and effects of a nuclear or biochemical attack will be measured against the standard deduced in Part IV, n212 and will prove unconvincing. Specifically, the restriction on access will not further an "important or substantial governmental interest unrelated to the suppression of expression" n213 because the military's interest in surprise and logistics are not affected. Moreover, even if the government's interest in morale was given some weight by the court, n214 it will not outweigh the people's interest in accessing that information because the government can promote morale absent the restriction. n215 The government's claim is further weakened when viewed "in light of the alternative means of communication" permitted under the restriction in the affected area, n216 since the destruction will likely wipe out media facilities on [*216] the ground. n217 Finally, the restriction will be deemed unreasonable since there are no "time, place and manner" n218 concerns from a military viewpoint; n219 the report on the use of a nuclear or biochemical weapon as it is dropped, and coverage of the destruction in the aftermath, will not affect the integrity of that very operation or future operations in that area. Thus, the government's interests in restricting access to this information will not outweigh the people's interest in acquiring it, yielding a First Amendment victory for the press.

Conclusion
Operation Iraqi Freedom demonstrates a symbiosis in military-media relations - a healthy moment in what has been a dominantly tense relationship in the past half century. However, the effectiveness of the embedding initiative in fighting the war on terror has yet to be tested, and regardless of the verdict, the media is likely to encounter access restrictions in future military operations. Should the media wish to challenge any future restrictions in court, it must learn a lesson from its mistakes in the past: there is no constitutional right of unrestricted access to the battlefield.

This conclusion is not to say that the media may not receive the protection of the First Amendment in challenging a government restriction on access to the battlefield. Where the government's interest is to preserve morale alone, it will not outweigh the people's interest in accessing, via the media, significant information about the progress or failures of war; information a court may deem necessary for the maintenance of a republican form of government.

FOOTNOTES:

n1. See A Washington Post Correspondent in Afghanistan Restrained at Gunpoint by American Soldiers, Enduring Freedoms, Feb. 13, 2002, at http://www.enduring-freedoms.org/article. php3?id article=261 [hereinafter Enduring Freedoms].

n2. See id. "Since there was a possibility that one of the victims might be the leader of the terrorist organization, Osama bin Laden, American military commanders sent a task force to investigate." Id.

n3. Id. In response to media outrage over the incident, Pentagon spokesman Rear Adm. Craig Quigley said that Struck was turned back "both for his safety and that of the soldiers who were there doing that work." Howard Kurtz, War Coverage Takes a Negative Turn; Civilian Deaths, Military Errors Become Focus as Reporters Revisit Bombing Sites, Wash. Post, Feb. 17, 2002, available at 2002 WL 13818262. "Quigley challenged the reporter's version, saying the commander had told Struck: 'For your own safety, we cannot let you go forward. You could be shot in a firefight.' Struck said: 'That's an amazing lie. Those words were not spoken. With all due respect, Admiral Quigley was not there; I was.'" Id.

n4. See Kurtz, supra note 3.

n5. See id.; see also Enduring Freedoms, supra note 1.

n6. Reporters Sans Frontieres asked Secretary of State Donald Rumsfeld to provide explanations concerning the Struck incident. See Enduring Freedoms, supra note 1. Doug Struck pointed out that his altercation "shows the extremes the military is going to keep this war secret, to keep reporters from finding out what's going on." Kurtz, supra note 3.
n7. Kurtz, supra note 3.

n8. See How the War on Terrorism Affects Access to Information and the Public's Right to Know, Homefront Confidential (the Reporters Committee for Freedom of the Press, Arlington, VA), Sept. 2002, at 6-7, available at http://www.rcfp.org/homefrontconfidential [hereinafter Homefront Confidential].

n9. "Embedding means living, eating, moving, in combat with the unit that you are attached to." Statement by Brian Whitman, deputy, Assistant Secretary of Defense (Public Affairs), News Transcript, United States Dep't of Def., ASD PA Clarke Meeting with Bureau Chiefs (Jan. 14, 2003), available at http://www.defenselink.mil/news/Jan2003/t01152003 t0114bc.html (on file with the Cardozo Arts & Entertainment Law Journal) [hereinafter Jan. 14, 2003 News Transcript]. "We envision that you will have the opportunity to stay with that unit for as long as you want... . You'd be with them as they prepare for combat. You'd go into combat with them. You'd march on whatever capital we happen to march on with them." Id. Once embedded, reporters must follow ground rules to ensure operational and national security are maintained.

I don't think there's enough public affairs officers out there to put a public affairs officer in with every journalist as we execute this very ambitious and aggressive embed plan. So there will be security at the source. It will be the commander that you're with, that you are making those decisions as part of that team out there. You're going to know when there are issues where you can't report because the tactical situation won't allow you to.

Id. See Memorandum from Office of Assistant Secretary of Defense - Public Affairs, to Secretary of Defense Chairs et al., at http://www.defenselink.mil/news/Feb.2003/d2003 0228pag.pdf (on file with the Cardozo Arts & Entertainment Law Journal) [hereinafter Dep't of Def. Ground Rules for Embedded Media]. This Note does not discuss the constitutionality of these ground rules. For a discussion of the constitutionality of "security review" in Operation Enduring Freedom, see William E. Lee, "Security Review" and the First Amendment, 25 Harv. J.L. & Pub. Pol'y 743 (2002). For discussion of the constitutionality of "prepublication review" in the Gulf War, see Matthew J. Jacobs, Assessing the Constitutionality of Press Restrictions in the Persian Gulf War, 44 Stan. L. Rev. 675 (1992).

n10. The embedding initiative invites the media to view events in the theater of operations as they transpire, considerably eliminating media reliance on Pentagon briefings for newsworthy information about the military conflict. But see Pentagon Restraints Continue to Stymie the Press, 26 The News Media & The Law 14 (Spring 2002), available at http://www. rcfp.org/news/mag/v. cgi?26-2/new-pentagon ("'If the best information about what's happening on the battlefield is coming from the Pentagon, then you know something is out of whack,' said Jamie McIntyre, CNN's military affairs correspondent... . 'For a long time, the best information we could get was what we were getting from the Pentagon.'").

n11. "As Bush announced in September [2001], the enemy is some shadowy 'evil' that lurks in more than 60 countries around the world, and its elimination may take years." James Bamford, Is The Press Up to the Task of Reporting These Stories? An Investigative Journalist Examines The Evidence And Shares His Concerns, Nieman Rep., Dec. 22, 2001, available at 2001 WL 21604051, at 3-4; see also Iran, Libya, Syria Are Next? Defense Advisor Says U.S. Wants Regime Change In These Countries, World Net Daily, at http://www.worldnetdaily.com/news/article.asp?ARTICLE ID=31222. The war on terror "will go on for years, not weeks. This is a marathon, not a sprint." Statement by Victoria Clarke, News Transcript, United States Dep't of Def., Secretary Rumsfeld Meeting with DoD National Media Pool Bureau Chiefs (Oct. 18, 2001), available at http://www.defenselink.mil/news/Oct2001/t1019 2001 t1018bc.html (on file with the Cardozo Arts & Entertainment Law Journal) [hereinafter Oct. 18, 2001 News Transcript].

n12. American journalists were given broad access to combat zones in WWII. Reporters had almost complete freedom of movement in the battlefield, and accompanied troops on amphibious landings, bombing runs, and parachute drops in enemy territory. Michael D. Steger, Slicing the Gordian Knot: A Proposal to Reform Military Regulation of Media Coverage of Combat Operations, 28 U.S.F.L. Rev. 957, 962-63 (1994). In exchange for wide-ranging access, the press accepted broad censorship of its stories. Id. In the Korean conflict, journalists generally continued to enjoy access to the battlefield with military censorship. Id. at 964. "The Vietnam conflict offered unprecedented access to both areas of combat and troops because there was no censorship of either reporters' dispatches or television footage." Id. In the 1983 invasion of Grenada, the media was barred from the island for the first two days and forced to remain on the neighboring island of Barbados. "As the conflict subsided to a mop-up action, the military granted fifteen pool reporters access to the island, but kept them under military escort." Id. at 957-68. During the 1989 invasion of Panama, then "Secretary of Defense Dick Cheney purposely delayed activating the pool to prevent the correspondents from reaching Panama City until the operation was well under way." Id. at 970. In the Persian Gulf War, "the most pervasive restrictions were enforced throughout the conflict and during the months of mobilization that preceded the fighting." Jacobs, supra note 9, at 686. In Afghanistan, military restrictions inhibited media coverage of most of the fighting. See infra Part II. With Operation Liberate Iraq, the military seems to be moving back to the model used in WWII partly because the war in Iraq is more of a conventional war. However, should future military conflicts require unconventional and untraditional strategies, as those employed in Afghanistan, it is likely the military will reinstate media restrictions on access to the battlefield. See infra Part I.C. (discussing how the unconventionality of the war on terror impacts the freedom of the press).

n13. U.S. Const. amend. I ("Congress shall make no law ... abridging the freedom of speech, or the press.").

n14. Journalists constantly criticized the English monarchy while it waged war in the 17th and 18th centuries. The press encouraged the observation that "old and corrupt European institutions ... were destroying peace and prosperity - even in North America" by "squarely placing the blame for the horrors of war on kings." Jeffery A. Smith, War and Press Freedom: The Problem of Prerogative Power 6 (Oxford University Press) (1999).

n15. "To a great extent, original writings in periodicals and pamphlets were responsible for advancing the ideological debates of a nation in the act of creating itself." Id. at 5. "Newspapers and magazines, in particular, were in a position to create a shared political culture that extended even into remote rural areas." Id.

n16. The Framers debated whether it was necessary to explicitly provide for press protection in the Bill of Rights. For instance, "Wilson maintained that 'the proposed system possesses no influence whatever upon the press' and that making a formal declaration of a right was dangerous because it might be 'construed to imply that some degree of power was given, since we undertook to define its extent.'" Id. at 32.

n17. "Some assert that the media is actually a fourth branch of government ... ." Steven S. Neff, The United States Military vs. The Media: Constitutional Friction, 46 Mercer L. Rev. 977, 980 (1995); see Smith, supra note 14, at 28 ("Exerting the force of public opinion between elections or in place of impeachment, an independent 'fourth branch' of government was seen as helping to enforce the formal and informal rules of just politics.").

n18. New York Times Co. v. United States, 403 U.S. 713, 717 (1971) (Black, J., concurring). However, members of the media have been criticized for placing their interests, in attaining Pulitzers and high ratings, before the interest of the people in objective reporting. See, e.g., David Folkenflik, War Stories; As They Prepare to Cover a War, the American Media Face Two Major Obstacles, the Military and Themselves, Balt. Sun, Jan. 19, 2003, available at 2003 WL 4707864 ("As reporters pursue ratings, readership, scoops and glory, they may strike compromises that could strongly shape the version of the truth they present.").

n19. While the principle of objectivity is a driving force behind the idea of the press as the "fourth branch" of government, "conservatives assert that media bias is evident in the personal editorial remarks made by reporters, the choice of stories that are aired or printed, the lack of commitment to truly presenting both sides to an issue, and rote acceptance without questioning of the liberal party line." Neff, supra note 17, at 983-84.

n20. "A free press ... Thomas Jefferson said, brings public officials before the 'tribunal of public opinion' and thereby 'produces reform peaceably, which must otherwise be done by revolution.'" Smith, supra note 14, at 28 (citing Letter from Thomas Jefferson to Adamantios Corey (Oct. 31, 1823) reprinted in Andrew A. Lipscomb and Albert E. Bergh, The Writings of Thomas Jefferson 15 (1904-1905)). See infra Part III.C. (discussing the necessity of a free press in a republican form of government).

n21. See supra note 16.

n22. Smith, supra note 14, at 32.

n23. National security interests were cited as justifications for press restrictions in the invasions of Grenada, Panama, and the Persian Gulf War. See generally Steger, supra note 12; Jacobs, supra note 9. Likewise, the Pentagon stated that access restrictions to the fighting in Afghanistan were necessary for operational security. See Transcript, Brookings Inst., Working Session on Coverage of the War on Terrorism: The Conflicting Needs of the Media and the Department of Defense (Nov. 8, 2001), at http://www.brookings.org/comm/transcripts/20011108.html (on file with the Cardozo Arts & Entertainment Law Journal) [hereinafter Nov. 8, 2001 Brookings Transcript].

n24. Smith, supra note 14, at 12. "In the Gulf War, ... Navy officers, for instance, cut references to pilots watching pornographic films before missions." Id. at 25.

n25. In New York Times Co. v. United States, 403 U.S. 713 (1971), the Government did not satisfy the burden of showing an imminent national security concern justifying the imposition of a restraint on publication. "Any system of prior restraints of expression comes to this court bearing a heavy presumption against its constitutional validity." Id. at 714 (internal quotations and citations omitted).

n26. "In contrast to the well-established doctrine that prior restraints are presumptively invalid in all but the most extreme circumstances, the right of journalistic access to news, or to places where news is found, is one that the Supreme Court has never even recognized." Jacobs, supra note 9, at 678.

n27. Neff, supra note 17, at 1004.

n28. Id.

n29. See Martin E. Halstuk, Policy of Secrecy - Pattern of Deception: What Federalist Leaders Thought About a Public Right to Know, 1794-98, 7 Comm. L. & Pol'y 51, 58-59 (2002). "The Senate, which drafted the final language of the First Amendment, kept its proceedings secret." Id. at 59.

n30. Id. Additionally, "facing a crisis with France, [President] Adams also resorted to using secrecy and deception as political tools, thus raising more doubt that the nation's early leaders believed the American public had a right to know what their leaders were doing." Id. at 67.

n31. This is demonstrated through censorship and other forms of press restrictions imposed during the Civil War, Spanish-American War, World War I, World War II, the Korean War, the invasion of Panama, the invasion of Grenada, and the Persian Gulf. See generally Jacobs, supra note 9, at 679-87.
n32. Smith, supra note 14, at 12.

n33. Steger, supra note 12, at 968. "[A] total news blackout of the military action was imposed and the only information available to the public about the events occurring in Grenada was issued by official United States government sources." Flynt v. Weinberger, 588 F. Supp. 57, 58 (D.D.C. 1984).

n34. See Steger, supra note 12, at 968.

The [Reagan] administration cited security and logistical reasons for barring reporters, specifically: (1) the need for secrecy and surprise; (2) its inability to guarantee the safety of reporters; (3) the fear that live news reports might give opposing news forces information about the disposition of American troops on the island; (4) the risk that reporters might be captured and held hostage; and (5) the concern over the difficulty in selecting a small pool of reporters to accompany the invasion, out of the some 1800 accredited by the White House.

Id. at 968-69.

n35. Id. at 971. It is alleged that:

secretary of Defense Dick Cheney purposely delayed activating the pool to prevent the correspondents from reaching Panama City until the operation was well under way... . When the pool did arrive, about five hours after the invasion had begun, the Army restricted them to a military base and did not provide helicopters to transport them around the country.

Id.

n36. Jacobs, supra note 9, at 677, 721.

n37. Neff, supra note 17, at 995.

n38. See, e.g., Rana Jazayerli, Note, War and the First Amendment: A Call for Legislation to Protect a Press' Right of Access to Military Operations, 35 Colum. J. Transnat'l L. 131, 155 (1997).

The [Supreme] Court has accepted the view that the Executive possesses constitutional authority to limit First Amendment rights if national security is threatened. What is disturbing about this analysis is not that legitimate threats to national security may at times require limitations on individual liberties, but that the branch of government presently charged with the authority to limit these rights is the same branch charged with the authority to determine what constitute legitimate "national security" concerns.

n39. Id. at 155. "In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry - in an informed and critical public opinion which alone can here protect the values of democratic government." New York Times Co. v. United States, 403 U.S. 213, 728 (1971)(Brennan, J., concurring).

n40. Susan Gellman, The First Amendment In a Time That Tries Men's Souls, 65 Law & Contemp. Probs. 87, 92 (2002).
n41. Id.

n42. Unlike the media which existed at the inception of the Constitution, today's media has "power even beyond that of the other three branches [of government] because of its extraordinary ability to reach masses of diverse people in such a large scale." Neff, supra note 17, at 980-81.

n43. Indeed, the battles fought in Iraq are more traditional than those fought in Afghanistan, thus facilitating media coverage in Iraq was more feasible than in Afghanistan. Some scholars argue that because the press historically enjoyed access to the battlefield and troops with no threat to national security, access to the battlefield should not be restricted today. See generally Steger, supra note 12; Jazayerli, supra note 38. But see Neff, supra note 17, at 1012 ("One of the lessons of Vietnam was that loose press restrictions do not necessarily result in truth or admirable conduct by either institution."). "Ironically, the period which exhibited the loosest regulations of the media [(the Vietnam War)] was also the worst example of irresponsibility and dishonesty demonstrated by the military and the government in American History." Id. at 1005. I discuss the differences between an unconventional war and a traditional war, and how the former impacts the media's reportage, infra Part I.C.

n44. "It is impossible for the military to plan secret deployments under intense media scrutiny." Jacobs, supra note 9, at 722.

n45. [There is a great] amount of liberal bias that exists in news reporting today. The evidence for this situation is exhibited as much by what is not aired or printed as what is... . [A 1995] comprehensive survey of both broadcast and print journalists showed that the percentage of journalists who support Democratic candidates in elections is never less than 80%... . The result of all this bias is that the media is predisposed to disliking the military.

Neff, supra note 17, at 1009-10.

n46. See supra note 18. "The problem is that the media's zeal in pursuing and publishing a story at all costs in order to meet a deadline or receive a Pulitzer can result in the ultimate cost - the death of countless brave American soldiers." Neff, supra note 17, at 1008.

n47. Evidence that the media is self-serving comes from the fact that the "limitation upon critically needed unbiased news reporting has come from private sources, sometimes including the news media outlets themselves." Gellman, supra note 40, at 92.

n48. So far in the war on terror, the conflict in Afghanistan required more unconventional tactics than the current conflict in Iraq. Therefore, I deduce the impact of the unconventionality of the war on terror on the freedom of the press from military operations in Afghanistan.

n49. See Ann Roosevelt, Special-Operations Units Poised to Fight Terror, 22 Def. Week 38 (Sept. 24, 2001) ("U.S. special operations units are a critical element in the government's anti-terrorism effort, former commanders and experts say."). Indeed, Operation Enduring Freedom proved that special operation forces were key in fighting a terrorist network. See October 18 News Transcript, supra note 11 (discussing in part that special operation forces will play a large part in the conflict in Afghanistan).

n50. "The category of special-operations units includes a long list of squads, the best known of which may be Navy SEAL teams, Army Special Forces (Green Berets) and Rangers, and Air Force Special Operations Wings. They all can operate in small units or as part of a joint or allied force." Roosevelt, supra note 49.

n51. See supra note 11. In previous, more traditional, military conflicts, the enemy was an identifiable regime leading an organized and identifiable army. The absence of these elements require covert war tactics, which may include embedding U.S. forces with other national or tribal forces (i.e., Northern Alliance) as evidenced in Operation Enduring Freedom:

Afghanistan was not World War II. We didn't have but a handful of [troops] down on the ground for weeks. And they were going in, in very unusual ways and ways that the media -- the press people -- do not go in. And [the troops] were embedding themselves with Afghan forces that they didn't know and that they couldn't protect people against in the event there was a problem.

News Transcript, United States Dep't of Def., Secretary Rumsfeld Interview with Larry King, CNN (Dec. 16, 2002), available at http://www.defenselink.mil/news/Dec2002/t12192002 t1218lkl.html (on file with the Cardozo Arts & Entertainment Law Journal) [hereinafter Dec. 16, 2002 Rumsfeld Interview with Larry King]. Unlike in Afghanistan, Operation Iraqi Freedom is more like a traditional war because Saddam Hussein is an adversary that has a conventional army. Thus, the United States had thousands of troops stationed at U.S. bases for months waiting for their orders, and ground troops entered Iraq in a traditional infantry procession.

n52. See generally Donald H. Rumsfeld, A Choice to Transform the Military, Wash. Post, May 16, 2002, available at http://www.defenselink.,il/speeches/2002.s20020516-secdef.html.

The point is this: we are fighting wars of the 21st century with a Defense Department that was fashioned to meet the challenges of the mid-20th century. We have an industrial age organization, yet we are living in an information age world, where threats emerge suddenly, often without warning, to surprise us. We cannot afford not to change and rapidly, if we hope to live in that world.

Donald Rumsfeld, Speech for the House Armed Services Committee, FY2004 Defense Budget Testimony (As Prepared) (Feb. 5, 2003), available at http://www.defenselink.mil/speeches/2003/sp20030205-0005.html [hereinafter FY2004 Defense Budget Testimony].

n53. See Christian Lowe, In Exercise, U.S. Military Practices Unconventional Warfare, 22 Def. Week 21 (May 21, 2001). "As the United States has done in Operation Enduring Freedom, an effects-based operation would concentrate military, diplomatic, financial, law enforcement and other assets against a foe." Jim Garamone, Rumsfeld Visits Millennium Challenge Experiment, Am. Forces Press Service (July 29, 2002).

n54. In the past when we thought about defeating an enemy we thought about how many of his tanks can we destroy, how many of his airplanes could we shoot down, where could we gain a positional advantage over his ground forces ... . Here we're thinking of the adversary in a much more holistic way... . We're thinking about the ways that we can most efficiently destroy the glue that holds him together-go after his centers of gravity and his critical vulnerabilities, not linear approaches to [defeating] his forces.

Lowe, supra note 53 (quoting retired Marine Gen. Charles Wilhelm, overseeing an experiment then called Unified Vision 2001).

n55. Id. For a more in-depth discussion about the need for defense transformation into the information age, see Testimony Delivered on Military Transformation Before the Senate Armed Services Committee Hearing, United States Dep't of Def. (Apr. 9, 2002), available at http://www.defenselink.mil/speeches/2002/s20020409-depsecdefl.html; Speech, Secretary Rumsfeld Speaks on "21st Century" Transformation of the U.S. Armed Forces (transcript of remarks question and answer period), United States Dep't of Def. (Jan. 31, 2002), available at http://www.defenselink.mil/speeches/2002/s20020131-secdef2.html.

n56. "You can't embed anything in [special operations missions] without putting everything at risk and altering [them]." Statement by Secretary Rumsfeld, Oct. 18, 2001 News Transcript, supra note 11; see supra note 44.

n57. FY2004 Defense Budget Testimony, supra note 52.

n58. See Roosevelt, supra note 49 ("Ultimately, those who know what the [special operations] units might do aren't saying, and that's how it's supposed to be."). The DoD ground rules for embedded media in the war in Iraq prohibit the release of any information regarding special operations. See Dep't of Def. Ground Rules for Embedded Media, supra note 9, 4.G, 4.G.13 ("The following categories of information are not releasable since their publication or broadcast could jeopardize operations and endanger lives... . Information on special operations units, unique operations methodology or tactics.").

n59. Lowe, supra note 53.

n60. See FY2004 Defense Budget Testimony, supra note 52 ("Most agree that to win the global war on terror, our Armed Forces need to be flexible, light and agile - so they can respond quickly to sudden changes.").

n61. Most special operations forces "are shrouded in classification in nearly all but name." Roosevelt, supra note 49.

n62. "Military operations rely on secrecy and surprise as two fundamental tenets of successful warfare... . A free press, on the other hand, generally pursues the goal of informing the public about ALL of the news - attempting to ferret out any efforts to maintain secrecy." Neff, supra note 17, at 987.

n63. See C. Robert Zelnick, The Press and National Security: Military Secrets and First Amendment Values, 1 J. Nat'l Security L. 21, 22 (1997).

n64. "That America's wars usually take place in foreign countries further complicates resolution of access issues... . Under these circumstances, the press - and thus the public - are even more dependent on the government to provide access to military operations conducted on foreign soil." Marianne D. Short & Jodene Pope, History and Scope of the Press' Right of Access to Foreign Battlefields, 41 Naval L. Rev. 1, 21-22 (1993).

n65. Neff, supra note 17, at 1010. The DoD explicitly recognized the role of the media in affecting public opinion in the ground rules issued to embedded journalists in the war in Iraq:

Media coverage of any future operation will, to a large extent, shape public perception of the national security environment now and in the years ahead. This holds true for the U.S. public; the public in Allied countries whose opinion can affect the durability of our coalition; and publics in countries where we conduct operations, whose perceptions of us can affect the cost and duration of our involvement.

Dep't of Def. Ground Rules for Embedded Media, supra note 9, 2.A. "Publicly, the Defense Department says it wants to generate positive stories about American troops. Privately, officials acknowledge that they hope to counteract potentially damaging reports from vibrant Arab-language television networks and Iraqi propaganda that may make claims of U.S. atrocities." Folkenflik, supra note 18, at 3.

n66. "[During Operation Enduring Freedom,] most American broadcasters and newspaper reporters scratched out coverage from Pentagon briefings, a rare interview on a U.S. aircraft carrier or a humanitarian aid airlift, carefully selected military videos, or leaks." Phillip Taylor & Lucy Dalglish, How the U.S. Government Has Undermined Journalists' Ability to Cover the War on Terrorism, 20-SPG Comm. Law. 1, 23 (2002). Similarly, the Pentagon's embedding initiatives in Iraq also demonstrate it has the upper hand in the military-media relationship; the principle reason why journalists are embedded is because the Pentagon wants them there. See supra note 65.

n67. "The military ... trusts itself more than the press to deliver necessary information to the public, and can ... transmit such information directly through live, unedited broadcasts of briefings. The press still does not trust the military to give unbiased accounts of operations." Jacobs, supra note 9, at 684. Even when embedded, journalists must abide by ground rules on what may or may not be reported. Thus, the military still controls the dissemination of information about the conflict when the media has access to the battlefield. See Dep't of Def. Ground Rules for Embedded Media, supra note 9.

n68. The panel was headed by retired Major General Winant Sidle. See Steger, supra note 12, at 969.

n69. Id. at 969-70.

n70. In response to the failure of the pool system implemented during the Grenada invasion, "the Pentagon appointed another panel, this time directed by former Pentagon spokesman Fred S. Hoffman... . [The report] called for the Pentagon to exercise less surveillance of the press, to remove obstacles to reporting combat operations, and to stress the need for independent reporting of such operations." Id. at 971-72.

n71. Jacobs, supra note 9, at 686.

n72. The Principles of Information state, in part, that "it is DoD policy to make available timely and accurate information so that the public, the Congress, and the news media may assess and understand the facts about national security and defense strategy." Dep't of Def. Directive No. 5122.5 Enclosure 2, at 8 (Sept. 27, 2000), available at http://www.dtic. mil/whs/directives/corres/pdf/d51225 092700/d51225p.pdf [hereinafter Dep't of Def. Directive].

n73. See Oct. 18, 2001 News Transcript, supra note 11.

n74. See id.

n75. See Jan. 14, 2003 News Transcript, supra note 9 (discussing preparations for, and the logistics of, embedding members of the media with military units in anticipation of war with Iraq). "One of the things that I think we all need to have in our mind is that this, if there is military action one should not presume that the way we do public affairs will be a carbon copy of Desert Storm or any other recent conflict either." Statement by Victoria Clarke, News Transcript, United States Dep't of Def., ASD PA Clarke Meeting with Bureau Chiefs (Oct. 30, 2002), available at http://www.defenselink.mil/news/Nov2002/t1101 2002 t1030sd.html (on file with the Cardozo Arts & Entertainment Law Journal) [hereinafter Oct. 30, 2002 News Transcript] This is not a guarantee, however, that the media will be embedded in future conflicts in the war on terror. See supra note 11 and Part I.C.

n76. Dep't of Def. Directive, supra note 72. It is the responsibility of the Assistant Secretary of Defense for Public Affairs to ensure that these principles are adhered to when the U.S. is engaged in military conflict. "The [ASD(PA)] is the principal staff assistant and advisor to the Secretary and the Deputy Secretary of Defense for DoD news media relations, public information, internal information, community relations, public affairs and visual information training, and audiovisual matters ... ." Id. at 2. The ASD(PA) in the current administration is Victoria Clarke.

n77. "In late 1991 leading news organizations and military officials began negotiating a set of principles for future war coverage." Lee, supra note 9, at 746.
n78. Dep't of Def. Directive, supra note 72, Enclosure 2, at 8. The principle immediately following states that "information shall be withheld when disclosure would adversely affect national security, threaten the safety or privacy of U.S. Government personnel or their families, violate the privacy of the citizens of the United States, or be contrary to law." Id. How adverse to national security concerns the disclosure of information must be in order for it to be withheld is not discussed in these principles.

n79. Id. Enclosure 3, at 9.

n80. Id.

n81. Id.

n82. "Despite personal assurances from Rumsfeld that the war in Afghanistan would not go without press coverage, the U.S. military launched a full-scale attack on terrorist camps and bunkers in the heart of Afghanistan without acknowledging the 1992 agreement or crafting a new formal arrangement to take its place." Homefront Confidential, supra note 8, at 7. Failure to provide access to military operations in the first six weeks of fighting is a departure from the principles of open and independent reporting and early access to military operations. See supra text accompanying notes 79, 80. Moreover, the Pentagon disbanded pool coverage and allowed open coverage in Afghanistan on December 27, close to three months after the fighting began, Homefront Confidential, supra note 8, at 3, thereby overextending the use of media pools beyond the agreed to principles. See supra note 80. "For early war coverage, though, that was too little too late. Most reporters and troops had already left Mazar-e Sharif and Bagram. And there remained poor access to troops stationed in Uzbekistan and Pakistan because the Pentagon cited 'host country sensibility.'" Homefront Confidential, supra note 8, at 8.

n83. Homefront Confidential, supra note 8, at 2-3. "The buildup of American and alliance forces along the Afghanistan border following September 11 generally occurred without the media ... . When bombing strikes began, reporters watched from afar, with only a few enjoying a vantage point within Afghanistan itself and none with troops in active combat." Id. at 6-7. "Although the Pentagon officials allowed 40 journalists to join military forces on the USS Enterprise and two other warships [early in the fighting], they had placed them on ships incidental to the strikes at hand and imposed restrictions on what they could publish." Id. at 7.

n84. Id. at 3. This was "perhaps the most outrageous slight to press access ... . The Pentagon later apologized but the damage had been done. The press had to resort to accounts filtered through military sources." Id. at 7. On its face it appears DoD, along with Military PA officers, denied access to coverage of this incident to avoid embarrassment or criticism in violation of a principle Rumsfeld promised to adhere to. See supra text accompanying notes 78, 81. Doug Struck's account is another example of an outrageous press restriction. See supra notes 1-5 and accompanying text.

n85. We owe you an apology. The last several days have revealed severe shortcomings in our preparedness to support news organizations in their efforts to cover U.S. military operations in Afghanistan. We have a significant responsibility to provide your correspondents the opportunity to cover the war. It is a responsibility that we take seriously. Our policy remains the same as it always has been: keeping in mind our desire to protect operational security and the safety of men and women in uniform, we intend to provide maximum media coverage with minimal delay and hassle.

Memorandum from Victoria Clarke, Assistant Secretary of Defense (Public Affairs), to Bureau Chiefs on Media Coverage Issues (Dec. 6, 2001), available at http://www.defenselink. mil/news/Dec2001/d20011213media.pdf.

n86. See id.

n87. In addition to denying or severely restricting access to ongoing military operations, the DoD continually either avoids answering questions or offers misleading answers about completed missions, including an October 19 Army Rangers raid on Kandahar, a January 24 Special Forces raid at Oruzgan or an estimated death count of Afghan citizens. "At Oruzgan ... Afghan residents claim U.S. Special Forces beat, shot and killed men without giving them a chance to surrender." Homefront Confidential, supra note 8, at 6. Moreover, "American and foreign reporters continue to complain about heightened restrictions on coverage of about 500 detainees at the Guantanamo Bay Naval Base in Cuba," specifically, that "at ... new Camp Delta, journalists have no contact or view of detainees." Id. at 8.

Camp Delta is fenced in green tarp, which hides the prisoners. All press are assigned media escorts who sometimes interfere with journalists speaking with civilians or who coach military personnel on what to say to the press. Media escorts accompany journalists around the base, including to restrooms and vending machines ... . "I wouldn't even use the word 'access.' There is no access, there is access to nothing," [New York Times reporter Katharine Q.] Seelye said of the current state of media restrictions at Guantanamo Bay... . Media access has worsened through each of Guantanamo's three-to six-month personnel rotations.

Alicia Upano, U.S. Military in Cuba Keeps Journalists At Bay, 26 News Media & The Law 43 (2002). The Pentagon's justification for access restrictions at Guantanamo Bay is that "journalists had to be monitored to prevent military personnel from jeopardizing operational security and to ensure accuracy." Statement by Lt. Col. Joe Hoey, spokesman for the detention mission, Guantanamo Press Restrictions Increase, The Associated Press, Sept. 16, 2002, available at http://www.freedomforum.org/templates/document.asp?documentID= 16968. Additionally, according to Rear Adm. Craig Quigley, the Pentagon ordered journalists not to transmit images shot of Taliban and al-Qaeda prisoners in chains and masks because "the Geneva Convention prohibits humiliating, debasing photos ... [and that the U.S.] needs to be cautious in case there is a legal action somewhere downstream." News Media Reluctantly Withhold Prisoners Photos, News Media Update, Jan. 15, 2002, available at http://rcfp.org/news/2002/0115pentph.html.

[Pentagon officials said] the International Red Cross raised concerns the pictures would violate the Geneva Convention. But Red Cross officials said they never contacted the Pentagon about possible photographs of prisoners ... . Tim McGuire, ASNE president and editor of the Star Tribune in Minneapolis, said ... "whatever the reasoning for suppressing these photos, it should be clear that any problem rests with the handling of prisoners and not with the coverage."

Id.

n88. The Pentagon describes it "as a war with multiple battles along multiple fronts and possibly against multiple and sometimes unknown enemies." Homefront Confidential, supra note 8, at 6. See supra Part I.C. (discussing how the unconventionality of the war on terror impacts the freedom of the press).

n89. Nov. 8, 2001 Brookings Transcript, supra note 23.

n90. As Victoria Clarke stated, "in a lot of places in which [the U.S.] is operating, there is a fair amount of media ... . The concern is real, the sensitivity is real." Id.

n91. [Other countries] have the right to limit the people who come into their country. To the extent they have rules and procedures which we recommend against and we make requests that they do it our way rather than their way, but to the extent they prefer to do it their way, and our only choice then is either doing it their way or not doing it at all, and we feel that doing it their way is advantageous to our effort, clearly we have to do that.

Statement by Secretary Rumsfeld, Oct. 18, 2001 News Transcript, supra note 11.

n92. Id. In explaining why the Kitty Hawk, a naval ship, was blocked out from all media coverage during Operation Enduring Freedom, Rear. Adm. Steve Pietropaoli, Navy Chief of Information, stated:

The Kitty Hawk was blacked out for the entire time because it was a special purpose ship. I can say from a naval perspective, I'm certain there will be times if we're launching the initial strike, since it tens [sic] to aid the enemy gunners in focusing their sights and focusing their attention, we probably don't want real-time coverage of the initial strike.

Jan. 14, 2003 News Transcript, supra note 9.

n93. Statement by Secretary Rumsfeld, Oct. 18, 2001 News Transcript, supra note 11; see Dec. 16, 2002 Rumsfeld Interview with Larry King, supra note 51.

n94. See supra note 55 and Part I.C. (discussing how the unconventionality of the war on terror impacts the freedom of the press).

n95. See, e.g., Flynt v. Rumsfeld, 180 F. Supp. 2d 174 (S.D.N.Y. 2002) (Larry Flynt sought a preliminary injunction against Donald Rumsfeld and the DoD, restraining them from interfering with his asserted First Amendment right to have Hustler Magazine correspondents accompany American troops on the ground in Afghanistan); Nation Magazine v. United States Dep't of Def., 762 F. Supp. 1558 (S.D.N.Y. 1991) (action by various members of press challenging DoD pooling regulations imposed during Gulf War as infringement on news gathering privileges accorded by the First Amendment); Flynt v. Weinberger, 588 F. Supp. 57 (S.D.N.Y. 1984) (members of media challenged DoD's decision to prohibit press coverage of the initial stages of the U.S. military intervention in Grenada as violation of First Amendment).

n96. See, e.g., Flynt, 588 F. Supp. at 58 (dismissing claim as moot because at the time of the decision, "the press ... had unlimited freedom to report about events in Grenada"); see Steger, supra note 12, at 979 ("The brief duration of modern U.S. military conflicts has ... made it difficult for the media to obtain timely judicial review of any disputes.").

n97. See Nation Magazine, 762 F. Supp. at 1574 ("Who can say that during the next American overseas military operation some restriction on the number of journalists granted access at a particular time to a particular battlefield may not be a reasonable time, place, and manner restriction? Who today can even predict the manner in which the next war may be fought?").

n98. See supra Part II.C. An unconventional war requires new technology, and "technological advances in communications and warfare ... highlight a particular judge's own lack of technical acumen, and increase her apprehension about deciding national security issues ... . Technology increases the level of deference courts give the armed forces to define their security interests." Jacobs, supra note 9, at 703.

n99. See infra Part V. (discussing a hypothetical victory for the press).

n100. See Flynt, 588 F. Supp. at 60 ("An injunction [against absolute press bans] such as the one plaintiffs seek would limit the range of options available to the commanders in the field in the future, possibly jeopardizing the success of military operations and the lives of military personnel and thereby gravely damaging the national interest.").

n101. The press does not tie its claims to a specific instance of access restrictions but rather claims impracticably that in all instances, access restrictions are an infringement of the First Amendment. See Nation Magazine, 762 F. Supp. at 1561 (plaintiffs claimed that DoD pooling regulations, which limit access to the battlefield, are violation of their First Amendment rights); Flynt, 588 F. Supp. at 58 (plaintiffs sought a declaration that "the course of conduct engaged in by [the DoD] ... in preventing Plaintiffs, or otherwise hindering Plaintiffs,' efforts to send reporters to the sovereign nation of Grenada for the purpose of gathering news is in violation of the Constitution, laws and treaties of the United States ... ." (internal quotations omitted)). But see Flynt, 180 F. Supp. at 175 (plaintiffs sought "permission to observe first-hand United States troops engaged in combat and to report news of these military activities to the American people, subject to reasonable and necessary reporting restrictions intended to advance the military operational security in a material way." (internal quotations omitted)).

n102. In Nation Magazine, plaintiffs argued for a constitutional right to access the battlefield by analogizing to cases where it was held that there is a right of open access to courtrooms. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).

If the reasoning in these ... access cases were followed in a military context, there is support for the proposition that ... the government could not wholly exclude the press from a land area where a war is occurring that involves this country. But this conclusion is far from certain since military operations are not closely akin to a building such as a ... courtroom.

Nation Magazine, 762 F. Supp. at 1572.

n103. Id. "Cases addressing a right of access have arisen in the context of such fora as a courtroom, a prison, and a campaign headquarters... . No previous cases deal on the merits with a right of access to a battlefield." Id. at 1558, 1561.

n104. See supra text accompanying notes 88-89 and Part I.C.

n105. See Flynt, 180 F. Supp. at 177. The court held the following:

In the absence of a stronger showing by plaintiffs, the balance of harms and the public interest weigh heavily in defendants' favor. The Department of Defense has expressed, albeit somewhat vaguely and with minimal detail, its commitment to providing the media with open access to military operations in Afghanistan, consistent with operational and security concerns, and the media has in fact enjoyed increased access since this lawsuit was filed. Whether defendants are doing enough to satisfy the First Amendment or the Due Process clause are questions that will have to await the development of a fuller record.

n106. Generally, challenges to access restrictions are justiciable claims.

This Court concludes that the question of what restrictions may be placed on press access to combat zones is not committed by the text of the Constitution to a coordinate branch of government. Nor does the question impact upon the foreign relations power by interfering with United States relations with a foreign sovereign, ... .

Nation Magazine, 762 F. Supp. at 1567 (internal citations and quotations omitted).

By disputing the legitimacy of press regulations by the military, the media does not raise issues which impact upon the internal operating structure of the military, its personnel, or its strategy decisions. The media certainly can assert a judicially enforceable right, namely the guarantees of a free press. This is an area which obviously does not move beyond traditional spheres of judicial expertise... On the other hand ... specific restrictions that are drawn in order to protect the integrity, secrecy, and ultimate success of specific types of military operations lies within the unique realm of strategic military decisions which the courts have no business in questioning. As long as the regulations on their face are not designed merely as punitive measures against the press or as an intentional destruction of constitutional rights, the judiciary should leave them undisturbed.

Neff, supra note 17, at 1002.

n107. Early on, Secretary Rumsfeld admitted that covert operations will play a role in the war on terror. See Oct. 18, 2001 News Transcript, supra note 11.

Press: If this is a different kind of war I think we need to find a way to be able to cover those special operations forces since they are going to be playing a part in this conflict. Rumsfeld: That of course is a fair comment and it is something that needs to be addressed ... .

See id.; see also supra Part I.C.

n108. Nation Magazine, 762 F. Supp. at 1567. Challenging press restrictions on covering covert military operations is a "challenge to this country's military establishments, its goals, directives or tactics. As such, the President's Article II powers as Commander-in-Chief are ... implicated because resolution of the question ... impacts upon the internal functioning and operation of the military." Id.

n109. Such a claim might "impact upon the foreign relations power by interfering with United States relations with a foreign sovereign," id., or be too speculative to decide. See supra note 102.

n110. "Generally, the relationship between the military and the federal courts has been harmonious. The courts have historically implemented a policy of considerable deference to the internal operating structure and decision making capacity of the armed forces." Neff, supra note 17, at 985. In order to get the court to move away from a policy of deference to the military and closer to adjudicating access claims on the merits, the press must accept limitations on access to the battlefield. The press' "refusal to accept any limitations or to propose any alternatives to the DoD regulations (except for unlimited access) played a significant role in Judge Sand's refusal to rule for the plaintiffs on the merits" in Nation Magazine. Steger, supra note 12, at 999. "The district court's dismissal of Nation Magazine due to the lack of a well-focused controversy demonstrates that the courts will not accept an absolutist claim that press pools are always an unconstitutional limitation on access to the battlefield." Michelle Tulane Mensore, The First Amendment Fights Back: A Proposal for the Media to Reclaim the Battlefield After the Persian Gulf War, 49 Wash. & Lee L. Rev. 1145, 1150 (1992).

n111. See Zemel v. Rusk, 381 U.S. 1, 17 (1965) ("The right to speak and publish does not carry with it the unrestrained right to gather information."). Also, in Branzburg v. Hayes, 408 U.S. 665 (1972), "the Court noted that, historically, the First Amendment does not grant the news media any special access to information of which the general public might not also avail itself." Jacobs, supra note 9, at 712.

n112. Jacobs, supra note 9, at 678. But see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980) (holding that "the right to attend criminal trials is implicit in the guarantees of the First Amendment").
n113. For instance, the plaintiffs in Nation Magazine claimed that "the press has a First Amendment right to unlimited access to a foreign arena in which American military forces are engaged." Nation Magazine, 762 F. Supp. at 1561 (emphasis added).

n114. See Pell v. Procunier, 417 U.S. 817 (1974).

It is one thing to say ... that the government cannot restrain the publication of news emanating from certain sources. It is quite another to suggest that the Constitution imposes upon the government the affirmative duty to make available to journalists sources of information not available to members of the public generally.

Id. at 834. It appears, however, that in preparing for war with Iraq, the government believed it was in the country's best interest to embed members of the media with military units. Early on in the embedding initiative, Secretary Rumsfeld stated:

[I] think that as a principle, given our Constitution and the way our free system works, that it's always helpful, generally almost always helpful to have the press there to see things and be able to report and comment and provide information about what's taking place... . In the case of Iraq and Afghanistan there was a great degree of skill on the part of the Taliban and the al Qaeda in news management and they were able to co-locate their various military activities in close proximity to hospitals and nursing homes and schools and sympathy-engendering locations. To the extent they couldn't and some building was bombed, they would then take in some cases, actually physically take people from a hospital and take them over to a place that was bombed and pretend it was a clinic of some kind... . Having people embedded on the ground I think is particularly useful because we see intelligence that they are already arranging things that will mislead the press in Iraq as to how they want to do things. There's a risk that they will do that and try to blame it on the United States in the event that something takes places in Iraq, and having people who are honest and professional see these things and be aware of that is useful. So I consider [embedding] not just the right thing to do but also a helpful thing.

Oct. 30, 2002 News Transcript, supra note 75.

n115. New York Times Co. v. United States, 403 U.S. 713, 761 (1971) (Blackmun, J., dissenting); see Near v. Minnesota, 283 U.S. 697, 716 (1931).

"When a nation is at war many things that might be said in time of peace are such a hinderance 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 obstructions to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.

Id. (internal citations omitted). Compare id. with Dep't of Def. Ground Rules for Embedded Media, supra note 9, 4 ("These ground rules recognize the right of the media to cover military operations and are in no way intended to prevent release of derogatory, embarrassing, negative or uncomplimentary information." (emphasis added)). Thus, it appears the current DoD believes the media has a right to cover military operations. However, that right is qualified by conditions for access outlined in the Ground Rules. See id.

n116. Branzburg, 408 U.S. at 681 (1972).

n117. See Richmond Newspapers, 448 U.S. at 575-76.

"The First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw." Free speech carries with it some freedom to listen. "In a variety of contexts this court has referred to a First Amendment right to 'receive information and ideas.'"

Id. (internal citations omitted).

The right to publish is central to the First Amendment and basic to the existence of constitutional democracy. A corollary of the right to publish must be the right to gather news. The full flow of information to the public protected by the free-press guarantee would be severely curtailed if no protection whatever were afforded to the process by which news is assembled and disseminated. [The Supreme Court has,] therefore, recognized that there is a right to publish without prior governmental approval, a right to distribute information, and a right to receive printed matter. No less important to the news dissemination process is the gathering of information. News must not be unnecessarily cut off at its source, for without freedom to acquire information the right to publish would be impermissibly compromised. Accordingly, a right to gather news, of some dimensions, must exist.

Branzburg, 408 U.S. at 727-28 (1972) (Stewart, J., dissenting).

n118. Richmond Newspapers, 448 U.S. at 580. "Today ... for the first time, the Court unequivocally holds that an arbitrary interference with access to important information is an abridgment of the freedoms of speech and of the press protected by the First Amendment." Id. at 583 (White, J., concurring).

n119. Flynt v. Rumsfeld, 180 F. Supp. 2d 174, 175-76 (2002).

n120. See Richmond Newspapers, 448 U.S. at 587 (Brennan, J., concurring) ("The First Amendment embodies more than a commitment to free expression and communicative interchange for their own sakes; it has a structural role to play in securing and fostering our republican system of self-government."); id. at 584 (White, J., concurring) ("The First Amendment protects the public and the press from abridgment of their rights of access to information about the operation of their government."); Pell v. Procunier, 417 U.S. 817, 832 (1974) ("The constitutional guarantee of a free press assures the maintenance of our political system and an open society, and assures the paramount public interest in a free flow of information to the people concerning public officials.") (internal citations omitted). The necessity of a republican form of government is discussed infra Part III.C.

n121. First Amendment guarantees must be "applied in light of the special characteristics of the ... environment" for which they are asserted. Saxbe v. Washington Post Co., 417 U.S. 843, 864 (1972) (Powell, J., dissenting) (citing Tinker v. Des Moines School Dist., 393 U.S. 503, 506 (1969)). Federal judges are not well acquainted with the special circumstances of the battlefield. A claim of absolute right to access to the battlefield would be defeated by the court's deference towards the Executive's discretion. See supra Part III.A. (discussing that courts are reluctant to adjudicate the media's constitutional claims).

n122. See Globe Newspaper Co. v. Super. Ct. for the County of Norfolk, 457 U.S. 596, 611 (1982) (O'Connor, J., concurring) ("I interpret neither Richmond Newspapers nor the Court's decision today to carry any implications outside the context of criminal trials."). I reject the proposal that the press can argue a First Amendment right of access to military operations based on the Globe test, specifically based on the fact that "the battlefield has historically been open to the press and the general public, ... and the public's strong interest in knowing about its government's actions in times of war." Jazayerli, supra note 38, at 146-47.

n123. Richmond Newspapers, 448 U.S. at 588 (Brennan, J., concurring).

n124. See Getty Images News Services, Corp. v. Dep't of Def., 193 F. Supp. 2d 112, 118 (D.D.C. 2002) ("Indeed, the absence of a concrete controversy is of particular concern in light of the important constitutional issues at stake and the national defense interests that might be implicated.").

n125. For example, debriefing soldiers upon returning from battle.

n126. Marci A. Hamilton, Religion, the Rule of Law, and Good of the Whole: A View from the Clergy, 18 J.L. & Pol. 387, 27 (2002).

n127. See supra note 120.

n128. See Michael Fenner and James L. Koley, Access to Judicial Proceeding: To Richmond Newspapers and Beyond, 16 Harv. C.R.-C.L. L. Rev. 415, 427 (1981) (internal quotations and citations omitted). As discussed, however, the press' right to gather information does heed to national security concerns. See supra Part III.B. (discussing that the media does not have a constitutional right to access the battlefield).

n129. Note that a republican form of government does not require a right of access to information generally. See Marci A. Hamilton and Clemens G. Kohnen, The Jurisprudence of Information Flow: How the Constitution Constructs the Pathways of Information, 25 Cardozo L. Rev. 267 (2003). It requires that mechanisms of communication be in place for information exchange between constituents and their leaders, and vice versa, to ensure accountability on the part of leaders, and representation on the part of constituents. For a fuller exposition of the necessity of these mechanisms in a republican form of government, see generally Hamilton, supra note 126, at 27-45.

n130. "An obligation of two-way communication between representatives and constituents is crucial to understanding the Constitution's prescription for representation. Without it, representative democracy starts to look suspiciously like an aristocracy or oligarchy. The Constitution constructs a representative system of palpable accountability." Hamilton, supra note 126, at 38-39.

n131. A well-pleaded right of access claim is one that will not be dismissed because it is moot, and one which is not so broad that the court is reluctant to adjudicate the claim and thus defers to the Executive.

n132. Nation Magazine is the closest a court came to adjudicating such a claim. While the court in that case declined to grant plaintiffs' application for declaratory relief because the controversy was not sharply focused, it did state that:

in reviewing regulations, such as those that are written by DOD for use in military operation, the Court would inquire whether they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information.

Nation Magazine v. United States Dep't of Defense, 762 F. Supp. 1558, 1574 (S.D.N.Y. 1991) (internal citations and quotations omitted).

n133. As discussed, this does not involve applying a standard or balancing competing interests. Rather, claims alleging a constitutional right to unlimited access to the battlefield are dismissed because of the court's reluctance to adjudicate such claims. See Getty Images News Services, Corp. v. Dep't of Def., 193 F. Supp.2d 112, 118 (D.D.C. 2002) ("The Court has no jurisdiction to adjudicate hypothetical disputes in which the specifics of the challenged policies, the relevant factual context, and even the identity of the plaintiff are a matter of conjecture.").

n134. See New York Times Co. v. United States, 403 U.S. 713, 714 (1971) ("Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.").

n135. Prior restraints are highly disfavored in First Amendment jurisprudence. In fact, the Supreme Court has never upheld a prior restraint. The closest the Court has come to doing so is the suggestion in dicta that prior restraints might be permitted if the threat to national security from past publication were sufficiently extreme.

Jacobs, supra note 9, at 695.

n136. For example, access to criminal trials, see, e.g., Globe Newspaper Co. v. Super. Ct. for the County of Norfolk, 457 U.S. 596 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), and access to federal prisoners, Saxbe v. Washington Post, 417 U.S. 843 (1974).

n137. Near v. Minnesota, 283 U.S. 697, 713 (1931). "The main purpose of such constitutional provisions is to prevent all such previous restraints upon publications as had been practiced by other governments." Id. at 714 (internal citations and quotations omitted).

n138. See, e.g., New York Times, 403 U.S. at 713.

n139. The Pentagon Papers was a classified study entitled "History of U.S. Decision-Making Process of Viet Nam Policy." See David Rudenstine, The Day the Presses Stopped: A History of the Pentagon Papers Case (University of California Press 1996).

n140. See New York Times, 403 U.S. at 713.

It is not enough for the government merely to present numerous allegations that further disclosures will seriously harm current military, diplomatic, and intelligence interests. Nor do these allegations become sufficient, even during war time, because the government claims that specific and detailed references to classified documents support them. What the government must do is actually prove that the information, if disclosed, will result in immediate, irreparable harm. And in proving this, the government cannot expect the courts to defer to national security officials, even though it insists that judges lack the training, knowledge, and experience to second guess such officials.

Rudenstine, supra note 139, at 352.

n141. See New York Times, 403 U.S. at 761 (Blackmun, J., dissenting) ("What is needed here is a weighing upon properly developed standards, of the broad right of the press to print and of the very narrow right of the Government to prevent. Such standards are not yet developed."); Rudenstine, supra note 139, at 353 ("The Court did not spell out guidelines for lower courts to follow in deciding whether to grant a temporary injunction pending the completion of an evidentiary hearing.").

n142. In its per curiam opinion and the concurring opinions, "the Court did not explain the phrases 'heavy burden' or 'heavy presumption,' nor did the Court state how it assessed the government's evidence or why it was deficient." Rudenstine, supra note 139, at 302.

n143. New York Times, 403 U.S. at 730 (Stewart, J., concurring).
n144. See Rudenstine, supra note 139, at 354-55.

If the significance of the Pentagon Papers decision is to be fully appreciated, it must be recognized that the Court's decision put the nation's security at risk, at least to some degree. The government had failed to offer evidence that was as detailed, as specific, and as compelling as the Court required. But that did not mean that adequate evidence might not have been presented; it did not mean that subsequent publications might not reveal injurious information; it only meant that the government had failed to prove that the disputed documents contained information that would gravely and immediately injure the national security. Thus, the Court's decision entailed some degree of risk that further disclosures might inadvertently harm the nation's security.

Id.

n145. See Jacobs, supra note 9, at 698 ("Prior restraints are the most serious and least tolerable infringement on First Amendment rights because, unlike post publication punishment, they have an immediate and irreversible sanction. If the threat of criminal or civil sanctions over the publication chills speech, a prior restraint freezes it." (internal quotations and citations omitted)).

n146. See supra note 111; Saxbe v. Washington Post, 417 U.S. 843, 846-47 (1974) ("Like members of the general public, [members of the press] may not enter the prison and insist on visiting an inmate with whom they have no [friendship or familial] relationship.").

n147. Saxbe, 417 U.S. at 850 (internal citations omitted). The court also noted that:

journalists are given access to the prisons and to prison inmates that in significant respects exceeds that afforded to members of the general public. For example... [the DOC regulation] permits press representatives to tour the prisons and to photograph any prison facilities[,] ... conduct brief interviews with any inmates [a newsman] might encounter ... [and] are permitted virtually unlimited written correspondence with [inmates which] ... is neither censored nor inspected.

Id. at 847. Moreover, the court reasoned that in light of the other channels of communication and access afforded the press to federal prisons, the DOC's interest in avoiding disciplinary problems that result from allowing face-to-face interviews outweighs the interest of the press in obtaining face-to-face interviews. See Id.

n148. See Saxbe, 417 U.S. at 843 (holding federal prison regulations prohibiting face-to-face interviews with inmates does not violate the free press clause).

n149. See Pell v. Procunier, 417 U.S. 817 (1974) (holding that state prison regulations prohibiting face-to-face interviews does not violate the free press clause).
n150. Saxbe, 417 U.S. at 865 (Powell, J., dissenting) (citing Procunier v. Martinez, 416 U.S. 396, 413 (1974)).

n151. Pell, 417 U.S. at 823.
n152. The Supreme Court has held that reasonable time, place and manner regulations of communicative activity may be "necessary to further significant governmental interests, and are permitted." Id. at 826.

n153. Id. at 826. In Pell, the court noted that the state regulation prohibiting face-to-face interviews with prisoners was "not part of an attempt by the State to conceal the conditions on its prisons or to frustrate the press' investigation and reporting of those conditions." Id. at 830. This suggests that if a governmental regulation sanctioned an attempt to conceal, or frustrate the press' ability to report on, adverse conditions or consequences of a governmental activity, such a regulation would be unreasonable and thus impose an unconstitutional restriction on the press' right of access.

n154. 448 U.S. 555 (1980).

n155. Globe Newspaper Co. v. Super. Ct. for the County of Norfolk, 457 U.S. 596, 603 (1982) (reviewing the Court's holding in Richmond Newspapers). "Although the right of access to criminals is of constitutional stature, it is not absolute ... . The [government's] justification in denying access must be a weighty one." Id. at 606.

n156. Globe Newspaper, 457 U.S. at 607; see also Richmond Newspapers, 448 U.S. at 589 (Brennan, J., concurring) ("What is crucial in individual cases is whether access to a particular government process is important in terms of that very process."). The Court reached its decision in Richmond Newspapers partly based on an "unbroken, uncontradicted history ... of openness ... in the very nature of criminal trials under our system of justice." Id. at 573. Some scholars argue that such reasoning, if applied to the battlefield, leads to the conclusion that the press has a constitutional right to access the battlefield. I do not find this argument convincing because it presupposes an absolute right of access. See supra notes 121-24 and accompanying text. However, I do believe the Courts analysis in Richmond Newspapers of "whether, absent an explicit provision, the Constitution affords protection against exclusion of the public from criminal trials" provides a framework for arguing a qualitative right to access the battlefield. Richmond Newspapers, 448 U.S. at 575.

n157. In Richmond Newspapers, the Court held generally that the press and public have a constitutional right to access criminal trials. However, the restriction that gave rise to the complaint was a Virginia statute, which gave the judge the authority to exclude the press and members of the public from a criminal trial upon the defendant's motion and the prosecution's failure to object. The Court held the statute unconstitutional because it allows the government to "summarily close courtroom doors which had long been open to the public." Richmond Newspapers, 448 U.S. at 576. In Globe Newspaper, the Court held unconstitutional a state statute requiring mandatory exclusion of the press and general public from the courtroom during the testimony of victims of specified sexual offenses who are under the age of 18 because it "could not be viewed as a narrowly tailored means of accommodating the State's asserted interest: That interest could be served just as well by requiring the trial court to determine on a case-by-case basis whether the State's legitimate concern for the well-being of the minor victim necessitates closure." Id. at 609.

n158. Id. at 576-77.

n159. "Underlying the First Amendment right of access to criminal trials is the common understanding that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs." Globe Newspaper, 457 U.S. at 604 (emphasis added). "By offering such protection, the First Amendment serves to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government." Id. Thus, the freedom of the press embodied in the First Amendment does not just protect against restraints on publication; an important function of the First Amendment is also to protect a "social interest in the attainment of truth, so that the country may not only adopt the wisest course of action but carry it out in the wisest way." Saxbe v. Washington Post Co., 417 U.S. 843,862 (1972) (Powell, J., dissenting) (quoting from Z. Chafee, Free Speech in the United States 33 (1954)); see also supra Part III.C. (discussing the necessity of the free press for a republican form of government).

n160. This standard falls somewhere in the middle of the continuum of press clause cases. It is clearly a departure from the deference to the Executive seen in cases involving a right of access to the battlefield, and yet gives the government more leeway in restricting the press than the proof of imminence that is required in prior restraint cases.

n161. See Mensore, supra note 110, at 1160 ("Mid-level scrutiny requires that restrictions serve a significant state interest, leave open alternative methods of communication, and that the government does not base the restrictions on the content or subject matter of the speech." (citing Fox v. New Hampshire, 312 U.S. 569 (1941)).

n162. Saxbe, 417 U.S. at 860 (Powell, J., dissenting).

n163. See New York Times Co. v. United States, 403 U.S. 713, 717 (1971) (Black, J., concurring) ("The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic."); see also Saxbe, 417 U.S. at 875 (Powell, J., dissenting).

I believe that we must look behind bright-line generalities, however sound they may seem in the abstract, and seek the meaning of First Amendment guarantees in light of the underlying realities of a particular environment. Indeed, if we are to preserve First Amendment values amid the complexities of a changing society, we can do no less.

Id.

n164. This also involves a determination as to what governmental affairs play a particularly significant role in the functioning of the government as a whole. See Globe Newspaper Co. v. Super. Ct. for the County of Norfolk, 457 U.S. 596, 605-06 (1982).

Two features of the criminal justice system emphasized in the various opinions in Richmond Newspapers, together serve to explain why a right of access to criminal trials in particular is properly afforded protection by the First Amendment. First the criminal trial historically has been open to the general public... . Second, the right of access to criminal trials plays a particularly significant role in the functioning of the judicial process and the government as a whole.

Id. Arguably, war is a governmental affair that plays a significant role in the functioning of the government as a whole. See Jazayerli, supra note 38, at 153 ("One can argue that the need for an enlightened citizenry should be at its zenith when the country is engaged in overt military operations that risk the country's national security.").

n165. "Since logistical considerations prevent the American public from witnessing battles in distant lands firsthand, the press must serve as the public's surrogate. In these situations, measures which exclude the general public for practical reasons cannot be applied equally to journalists who are functioning in the public's stead." Steger, supra note 12, at 992.

n166. I will not discuss the legitimacy of the governmental interest in host-nation sensitivity because, as stated above, the government's interest in protecting the interests of countries that aid U.S. war efforts by hosting U.S. military operations, troops, and bases is irrefutable in court under the political question doctrine. See supra note 109 and accompanying text.
n167. See supra notes 89-91 and accompanying text.

n168. That is, which stated operational security restrictions are legitimate to protect the integrity of military operations, and which are not. See generally Jacobs, supra note 9. See also Rudenstine, supra note 139.

n169. Murray I. Gurfein was the United States District Court judge in the Southern District of New York presiding over the federal government's claim against the New York Times. For a description of the events leading to and including the hearings in that court, see Rudenstine, supra note 139, at 99-109.

n170. Id. at 156 (internal quotations omitted). According to the executive order that established the classification system defining the term "top secret" as it applied to the Pentagon Papers, a valid security matter, and thus a valid security restriction, implicates information that:

could result in exceptionally grave damage to the Nation if improperly disclosed. As examples of 'grave damage,' the order included information 'leading to a definite break in diplomatic relations affecting the defense of the United States, an armed attack against the United Sates or its allies, a war, or the compromise of military or defense plans, or intelligence operations, or scientific or technological developments vital to the national defense.'

Id. at 30. The fact that "the order was broad in scope and imposed very little in the way of defined standards with respect to possible or probable effects" made it difficult for the court to determine how imminent the grave damage to national security must be in order to enjoin publication of the study. Id. However, in the context of access restrictions, the heavy burden of proof in prior restraint cases, that is, proof of "immediate and irreparable harm," will likely not apply. See supra notes 160-61 and accompanying text. Thus, the examples of grave damage in the executive order classifying documents as "top secret" can facilitate an understanding of what national security concerns are legitimate in restricting press access to military operations.

n171. See Rudenstine, supra note 139, at 157.

n172. See New York Times Co. v. United States, 403 U.S. 713, 717 (1971) (Black, J., concurring) ("The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government."); id. at 723-24 (Douglas, J., concurring) ("The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information. It is common knowledge that the First Amendment was adopted against the widespread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powers-that-be."); id. at 729 (Stewart, J., concurring) ("When everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion.").

To win interim relief, the government had to prove that further publication would result in a 'serious, immediate and substantial threat to its ability to wage war, imminent risk of death to American military personnel, or a grave breach of the national security.' Mere embarrassment to political leaders of the United States or foreign nations was insufficient.

Rudenstine, supra note 139, at 201.

n173. See Jacobs, supra note 9, at 693. For an in-depth discussion on whether or not these security interests justify the system of prepublication review implemented in the Persian Gulf War, see id. at 695-711.

n174. See id. at 694. "Damaging disclosures include everything from a story that might alert the enemy to an unexpected attack, to a television broadcast which gives away a unit's location by showing pictures of the surrounding terrain." Id. In the context of access restrictions, the focus will be on preventing the latter.

n175. See id. at 693. "The Pentagon cannot assume the risk of the battlefield for thousands of media personnel, nor must it tolerate their hindering the effectiveness of military operations. Advances in weapons systems technology ... have made logistics a critical factor in the government's determination of where reporters can go on the battlefield." Id. "Having independent journalists wandering the battlefield really is fraught with lots of problems." Statement by Andrew David, Marine Corps Director of Public Affairs, Oct. 30, 2002 News Transcript, supra note 75.

n176. See Jacobs, supra note 9, at 694.

The morale campaign [of the Gulf War] was aimed at maintaining support not only among the troops themselves, but also among the citizens of the United States and other Allied nations. The premise of a restriction on the media in order to sustain morale is that the press contributes to, or even causes, the unpopularity of war by emphasizing the inevitable failures, mishaps, and casualties of battle.

Id.

n177. See supra note 106. See also Jacobs, supra note 9, at 721-22 ("Of the three overarching justifications that the government can put forth for access restrictions, morale is the weakest... Surprise, however, is a valid justification for access restrictions... . Access restrictions are also a reasonable method of furthering the military's interests in logistics.").

n178. "Critics argue that the near-complete news blackout during the Grenada conflict enabled the military to avoid acknowledging friendly-fire casualties, the unintended bombing of a hospital, and the embarrassing fact that the military charts were so woefully outdated that soldiers had to rely on tourist maps." Folkenflik, supra note 18, at 2. Measures were also taken which shielded the government from embarrassment during Operation Enduring Freedom. See supra note 84 and accompanying text.

n179. See supra Part IV.A.

n180. See Dep't of Def. Ground Rules for Embedded Media, supra note 9, 2.A. (stating media coverage will, to a large extent, shape public perception of the national security environment of any future operations).

n181. See Jacobs, supra note 9, at 705.

The morale argument has two components: (1) Popular support is critical to military success, and (2) media coverage dictates the extent of that popularity. The first part of the argument is surely legitimate. Vietnam proved that while popular support might not remedy an ill-conceived endeavor, the absence of this support can be devastating. It is not at all clear, however, that media coverage of a war can by itself shape a nation's opinion. For example, press coverage of the Grenada invasion was extremely negative, but popular support for the mission soared.

Id.

n182. I discuss the difference between information that is merely newsworthy and information that is of great significance in the proceeding paragraphs. See infra notes 185-89 and accompanying text.

n183. The First Amendment cannot give way merely because televised pictures of body bags might cause people to question a war, which might spur constituents to write their members of Congress, which might cause members of Congress to restrict funding, which might hamper the war effort. In essence, morale is simply not a legitimate state interest given the overwhelming value of public debate.

Jacobs, supra note 9, at 706. "The concern over morale is simply too premature, speculative, and vague to be a rational interest of the government, given the constitutional interest in allowing citizens to make informed decisions about whether to support a war." Id. at 721.

n184. Censorship reached its most absurd height [during the Gulf War] when the Pentagon restricted coverage of the Bob Hope Christmas show in Saudi Arabia, attended by several thousand soldiers. Military authorities offered two reasons for the Hope ban: military security and fear that the Iraqis would use the show for propaganda. In fact, while reporters could not cover the show, it was taped for broadcast in the United States several weeks later. Obviously the security rationale for barring the coverage of the Bob Hope Christmas show cannot be compelling; this incident is one indication that Gulf War censors used their authority not only to discourage stories that might imperil troops or reveal war strategy, but also to manipulate attitudes among American or Middle Eastern audiences toward the U.S. forces.

Id. at 688-89. Interestingly, embedding journalists with U.S. troops in Operation Iraqi Freedom seems to have the effect of rallying morale behind troops.

n185. 467 F. Supp. 990 (W.D. Wis. 1979).

n186. Id. at 994. One can deduce from this case that, in the eyes of the judiciary, technical details about military arsenal is not necessary information for the public to know in order to effectively participate in a representative government.

n187. 86 F.3d 236 (D.C. Cir. 1996).

n188. Id. at 240. The court's language implies that the occurrence or magnitude of casualties in a military conflict is a basic fact and part of the raw material of a story.

n189. Id.

n190. See id. However, the government might have an interest in showing military arsenal, perhaps to boost morale at home, or intimidate potential enemies. See, e.g., Mark Thompson, Opening With a Bang, Time Magazine, Mar. 17, 2003 (describing the military arsenal and points of attack in a future war with Iraq).

n191. For instance, when managing editor of the New York Times, A.M. Rosenthal, considered publishing the classified Pentagon Papers, "the more he learned about the secret history, the more convinced he became that it was not only newsworthy but of great significance, because he thought it proved - through government documents themselves - that successive administrations had misled the public and the Congress on Vietnam policy." Rudenstine, supra note 139, at 54.
n192. Id. at 333.

n193. See supra note 134 and accompanying text.

n194. Rudenstine, supra note 139, at 55 (emphasis added). The New York Times editors agreed that, "to the extent the documents proved these points, they warranted publication." Id.

n195. In Operation Iraqi Freedom, it appears the government has greater interests in preventing distortions of the truth by other regimes than protecting morale, which, in part, contributed to the decision to embed journalists. Dep't of Def. Ground Rules for Embedded Media, supra note 9, 2.A. ("We need to tell the factual story - good or bad - before others seed the media with disinformation and distortions, as they most certainly will continue to do.").

n196. See supra notes 88-89 and accompanying text.

n197. See Elizabeth Becker, In The War On Terrorism, A Battle to Shape Public Opinion, N.Y. Times, Nov. 11, 2001. In an interview with Larry King, Secretary Rumsfeld stated that "we've got to do a host of things to win the battle of ideas in the world, and we darn well have to continue to very aggressively pursue those terrorists and capture or kill them." Dec. 16, 2002 Rumsfeld Interview with Larry King, supra note 51.

n198. See supra note 11.

n199. See Richard S. Dunham, Tom Ridge's Bureaucratic Battlefield, Bus. Wk. Online (Feb. 11, 2002), at http://www.businessweek.com:/print/bwdaily/dnflash/feb2002.

n200. In the war with Iraq, the Pentagon has embedded journalists with military units, including the air force, to cover their operations. See Jan. 14, 2003 News Transcript, supra note 9 ("Just like with your air, sea and land opportunities that you're going to be getting, there are going to be times when air activity is certainly more the focus of an operation ... .").

n201. For instance, journalists did not gain entry to the theater of operations in Afghanistan until six weeks after the fighting began. See supra note 83 and accompanying text.

n202. In this hypothetical, I am stipulating that plaintiff members of the media can overcome a challenge that their claim is moot. First, a claim may overcome a mootness challenge if regulations prohibiting access to the affected areas have not been lifted. But see Nation Magazine v. United States Dep't of Def., 762 F. Supp. 1558, 1570 (S.D.N.Y. 1991) ("Plaintiffs' claims for injunctive relief ... and interim relief ... are without doubt moot. Since the regulations have been lifted and the press is no longer constrained from traveling throughout the Middle East, there is no longer any presently operative practice for this court to enjoin."). If the hypothetical restrictions have been lifted, because months or years have passed since the attack, then the capable of repetition, yet evading review doctrine may apply. The restriction may evade review if it is lifted before the claim is argued, and is capable of repetition given the war on terror is ongoing and may involve fighting on many fronts.

The capable of repetition, yet evading review doctrine applies where two elements are present. First, the challenged action must have been too short in duration to be fully litigated prior to its cessation or expiration. Second there must be a reasonable expectation that the party bringing the action would be subjected to the same action again.

Id. at 1568 (internal citations and quotations omitted). Thus, if the claims are broad and if DoD would have lifted but not abrogated the restrictions, a court may hold that the action is capable of repetition and eligible for declaratory relief. See id. at 1570 ("Since the claims are broad and since the DoD has lifted but not abrogated the regulations, this Court holds that the action is capable of repetition and eligible for declaratory relief.").

A separate and more difficult inquiry is whether it is appropriate for a Court to exercise that power... . In determining whether to exercise that power ... the Court must evaluate each of the underlying claims in the context of existing First ... Amendment doctrine to consider if the issues, at this time, are presented in a clean-cut and concrete form.

Id. at 1570-71 (internal citations and quotations omitted). For reasons explained infra, given the stated hypothetical, a court will not be reluctant to exercise the power of affording declaratory relief.

n203. This may involve a right to access military operations, as when a journalist is embedded with an air force unit, see supra note 200, or alternatively, a right to access newsworthy information via a military press center. See Statement by Victoria Clarke, Jan. 14, 2003 News Transcript, supra note 9 ("I just want to remind people, ... if we have military conflict in the near future, there will be many places where you may want to cover this from: Here in the Pentagon, ... combined information press centers.").

n204. This hypothetical assumes, of course, the journalists' desire and capability to enter such areas without jeopardizing their health and safety.

n205. See, e.g., supra note 100.

n206. Flynt v. Weinberger, 588 F. Supp. 57, 60 (D.D.C. 1984). This was the court's response to the press' claim that absolute press bans such as those imposed in the invasion of Grenada should be prohibited. The court in Nation Magazine deferred to the Executive's discretion for the same reason. Nation Magazine, 762 F. Supp. at 1574 ("Who can say that during the next American overseas military operation some restriction on the number of journalists granted access at a particular time to a particular battlefield may not be a reasonable time, place, and manner restriction? Who today can even predict the manner in which the next war may be fought?").

n207. This hypothetical claim does not present a "challenge to this country's military establishments, its goals, directives or tactics. As such, the President's Article II powers as Commander-in-Chief are not implicated because resolution of the question does not impact upon the internal functioning and operation of the military." Id. at 1567.

n208. See supra note 123 and accompanying text.

n209. Access to information about devastating destruction of war is important for citizens to assess whether to support leaders who wish to continue the war. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 589 (1980) (Brennan, J., concurring) ("What is crucial in individual cases is whether access to a particular government process is important in terms of that very process.").
n210. See supra notes 188-89 and accompanying text. I believe a court will not have a problem determining that the acquisition of information about a nuclear or biochemical attack made by U.S. armed forces, and the affects on populations, constitutes basic information about the war necessary for citizens to know in a system of self-government.

n211. See supra notes 174-75 and accompanying text.

n212. See supra notes 160-61 and accompanying text.

n213. Saxbe v. Washington Post, 417 U.S. 843, 865 (1974) (Powell, J., dissenting) (citing Procunier v. Martinez, 416 U.S. 396, 413 (1974)).

n214. For instance, if the court was convinced that the decrease in morale poses a threat to national security. I find this unlikely given the connection between morale and operational security is tenuous. See supra note 181 and accompanying text. Nevertheless, I can imagine a counter-argument, given the psychological nature of the war on terror, that allowing coverage of the effects of a U.S. nuclear or biochemical attack would further enrage our enemies, create greater animosity towards the U.S., thereby discouraging them from ending attacks against the U.S.

n215. For instance, in covering Operation Enduring Freedom, each time news channels mentioned Afghan civilians killed by U.S. bombs, they also mentioned the people killed in the September 11 attack, thus maintaining morale at home. See Bamford, supra note 11, at 3. Moreover, the government can increase morale abroad through other tactics, which it hopes to achieve by embedding journalists in military units. See Folkenflik, supra note 18, at 3.

n216. See supra note 151 and accompanying text.

n217. Furthermore, the government can restrict other means of covering the effects of such an attack. For instance:

From the first day of the U.S. military's Operation Enduring Freedom, in Afghanistan on 7 October 2001, the Pentagon tried to control the filming of the war by signing an exclusive contract with the firm Space Imaging, preventing the company from "selling, distributing, sharing or providing" pictures taken by the Ikonos civilian satellite to the media, which were thus deprived of pictures of the results of the U.S. bombings taken by this satellite. Ikonos is the most efficient of the civilian satellites.

Reporters Sans Frontieres Press Release, RSF Criticizes U.S. "Limitations" of Media Freedom Since 11 September, BBC Monitoring, May 24, 2002.

n218. Nation Magazine v. United States Dep't of Def., 762 F. Supp. 1558, 1574 (S.D.N.Y. 1991).

n219. See supra notes 152-53 and accompanying text.