The Media and the Military: Guantanamo Access Rules Loosened; Other Guidelines Set to Limit Leaks

Meanwhile, the Pentagon and the C.I.A. sue authors over books

At the same time the Pentagon ostensibly relaxed media access restrictions at the military base at Guantanamo Bay, Cuba, it contracted access and transparency in other areas, specifically through new Pentagon-wide policies on dealing with the media, and suppression of an Afghan War memoir by purchasing and destroying the entire first printing.

Guantanamo Bay

On Sept. 10, 2010, the Pentagon released new "Media Ground Rules" for reporters covering military commission trials of suspected terrorists at the military base at Guantanamo Bay. Although they are largely consistent with their predecessors, the new rules no longer punish reporters for publishing protected information that had been independently leaked. However, media outlets covering the base say that the rules are still too restrictive. The new rules are available online at http://www.defense.gov/advisories/advisory.aspx?advisoryid=3260. A version of the old rules is available via the Columbia Journalism Review at www.cjrarchive.org/img/posts/Gitmo_Ground_Rules.pdf.

The new rules include a provision allowing members of the news media to publish "what otherwise would be considered Protected Information, where that information was legitimately obtained in the course of newsgathering independent of any receipt of information while at [Guantanamo], or while transiting to or from [Guantanamo] on transportation provided by DoD." This provision was added in direct response to an incident in May 2010, when four reporters were banned, under the old rules, from covering proceedings at the Guantanamo trial of Omar Khadr, after they revealed the name of a confidential informant. The informant's name had already been publicized in other media outlets, including Wikipedia, according to a September 10 story in The New York Times. On October 29, Kadhr pled guilty to killing an American soldier in Afghanistan when he was 15 years old. For more on the reporters banned from Guantanamo, see "Limits Persist on Access to Guantanamo Proceedings, Records" in the Summer 2010 Silha Bulletin.

The new ground rules are identical to the old rules in some respects. For example, both sets of rules prohibit journalists admitted to Guantanamo from "publish[ing], releas[ing], publicly discuss[ing], or shar[ing] ... Protected Information." Both sets of rules define "Protected Information" as "necessarily" including classified information, but also "information the disclosure of which could reasonably be expected to cause damage to national security, including intelligence or law enforcement sources, methods or activities, or jeopardize the physical safety of individuals." Both rules also restrict photography of detainees, Guantanamo personnel, the coastline at the base, or "panoramic views of ... facilities ... that reveal access roads, facilities layout ... and locations of security checkpoints."

However, the new rules contain procedural safeguards for journalists the old rules did not. For example, both the old and new rules require that all photographs and video images be submitted to Guantanamo personnel for a security review before the media outlets may release the information. The security review panel has the authority to crop photographs and edit videos before their release. However, unlike the old rules, reporters and photographers can now appeal the decision of the security review panel if the reporters do not believe the information meets the definition of "protected." Similarly, they may appeal the decision of the panel with respect to cropped photos if they believe that the cropping exceeds what is permitted under the rules. Appeals will be submitted to the security review panel's superior officer who, within 24 hours of the appeal, must render a judgment agreeing or disagreeing with the panel's judgment about releasing the photographs, videos, or information.

Some reporters cautiously applauded the rules, particularly the new appeals procedure and the "legitimately obtained" provision. John Walcott, the Washington bureau chief of McClatchy News, told the Reporters Committee for Freedom of the Press (RCFP) on September 14 that the new rules are "a good faith effort by the [Department of Defense] to address the problems that have prevented reporting from Guantanamo to be as complete and accurate as it ought to be." A McClatchy reporter, Carol Rosenberg of The Miami Herald,was among those banned from Guantanamo in May. Rosenberg has since been readmitted.

Walcott also expressed concern, however, over the "legitimately obtained" provision. He told the RCFP that he worried that the broad scope of the term might give the military too much discretion to remove reporters: "Is information that was leaked by someone without authority legally [sic] obtained? My answer is yes, I'm not sure what [the military's] answer will be."

In a September 17 editorial, The New York Times condemned the new rules as not doing enough to facilitate transparency. The rules are "not remotely good enough," the Times wrote, and the Obama Administration betrayed its campaign promise of transparency and openness when it set restrictive rules for press access to military commissions in the first place. The rules "only serve to remind us of the Obama administration's original error, which was to try Mr. Khadr for war crimes allegedly committed when he was a child, based on evidence tainted by torture and abuse," the Times declared.

Military spokespeople praised the new rules. According to Pentagon spokeswoman Tanya Bradsher, the rules are a positive step for both the press and the military, because they set clearly defined parameters for dealing with the press, but are more flexible than previous access rules at Guantanamo. "The old ground rules locked us into a procedure," Bradsher told the RCFP. "These [new rules] give us more levels of control in the appeal process for journalists and organizations." The RCFP story is available online at http://www.rcfp.org/newsitems/index.php?i=11555.

The Pentagon and Leaks

At the same time the Defense Department released the new Guantanamo ground rules, memoranda from high-ranking officials outlined a stricter policy to prevent leaks from members of military to the media.

The first memo, dated July 2, 2010, was titled "Interaction with the Media" and issued by Secretary of Defense Robert Gates. The memo states that although Gates recognizes the Department of Defense's obligation to disclose information to media outlets in a "timely, accurate, [and] credible" manner, he is "concerned that the Department has grown lax in how [it] engage[s] with the media, often in contravention of established rules and procedures." According to the memo, the Department of Defense is the sole release authority for official information to news media in Washington, and all media activities must be coordinated through appropriate public affairs channels.

The memo warns that any military member who discloses protected or classified information without going through channels specified in the memo can be punished. "Leaking of classified information is against the law," the memo states, "and will, when proven, lead to the prosecution of those found to be engaged in such activity."

The memo came nine days after Gen. Stanley McChrystal, then-commander of U.S. forces in Afghanistan, was fired by President Barack Obama for disparaging statements McChrystal made about the administration's war policy in an interview with Rolling Stone magazine. The New York Times reported on July 2 that the memo represented a significant crackdown by the Pentagon against leaks to the media, and was "a reassertion by civilian public affairs specialists of control over the military's contacts with the news media." The Times also reported that although Gates had been planning to institute tighter controls over leaks to the media for several months, the McChrystal incident expedited release of the memo. For more on McChrystal's termination and its impact on reporting on the military, see "A Reporter, a General, and the Ethics of Covering the War" in the Summer 2010 issue of the Silha Bulletin.

Another memo, dated Sept. 2, 2010, issued by Assistant Secretary of Defense for Public Affairs Doug Wilson, reaffirmed the July 2 Gates memo. Wilson's memo states that the media "is not the enemy" and that "implementation of the Secretary's guidance is not a change of policy but a reaffirmation of existing policy." Wilson wrote that his office would continue to foster positive relationships with members of the media within the bounds of Gates' July 2 memo.

According to a September 10 story by the RCFP, reporters expressed concern that the access restrictions will undermine their ability to report the news accurately. For example, Military Reporters and Editors co-founder Sig Christenson told the RCFP that the memos could deter members of the military from speaking to reporters. As a result, Christenson said, the only information reporters would have would be the official information from the Pentagon. "The bottom line is if you don't know what's really happening, what you have is a story that puts [the Pentagon's] fables into print, and that's not what I'm here for," Christenson said. Christenson cited the 2007 Walter Reed Hospital scandal, which exposed inadequate medical care and facilities at the hospital, as an example of why reporters need access to sources within the military. "If the new policy was in place, would those soldiers have talked withThe Washington Postand would we have learned of the abysmal conditions some of those wounded warriors endured?" he asked. The RCFP story is available online at http://www.rcfp.org/newsitems/index.php?i=11545.

Steven Aftergood, author of the blog Secrecy News, a project of the Federation of American Scientists, criticized the crackdown on leaks as impractical. On September 7, Aftergood wrote that "the degree of control over DoD contacts with the media sought by the Pentagon may be impossible to achieve," given the sheer size and scope of the Pentagon's operations. Aftergood said that the type of unauthorized disclosures the Pentagon is seeking to eliminate "serve a valuable public policy function, at least when they do not trespass on legitimate secrets, because they enable reporters and others to develop an independent account of events and to generate a more complete public record." The Secrecy News post is available online at http://www.fas.org/blog/secrecy/2010/09/coordination.html.

Gates told ABC News on July 8 that the memo's directives had more to do with streamlining information in the name of national security than with suppressing access, and that the memos do not restrict reporters' ability to cover ongoing combat operations. "If you're a captain in a unit that has an embedded reporter, as long as you're within the guidelines and the rules, we expect you to be open with that embedded reporter," Gates said. "On the other hand, if you're a captain in this building, working on budget options, I expect you to keep your mouth shut."

'Operation Dark Heart'

On Sept. 10, 2010 The New York Times reported that the Pentagon had negotiated with former Defense Intelligence officer Anthony Shaffer to purchase the entire first printing of his book, "Operation Dark Heart," and destroy all 10,000 copies to prevent the book's release, at least in an unedited form.

The Pentagon claimed that the book, a memoir of Shaffer's time in Afghanistan which purports to show weaknesses in the United States' policy there, contained classified and other sensitive information the release of which would compromise national security and the U.S. mission in Afghanistan.

According to the Times, Shaffer submitted a manuscript of the book to the U.S. Army for prepublication review in January 2010. Army reviewers initially signed off on the text, saying they had "no objection on legal or operational security grounds" to the book, which at the time was slated for an August 31 release. When Defense Intelligence and CIA analysts saw the manuscript in late July, however, they raised objections. On August 6, Defense Intelligence Agency Director Ronald Burgess released a memo that said the book could "reasonably be expected to cause serious damage to national security," according to a Sept. 15, 2010 post on Secrecy News. The information consists of, among other things, names of intelligence officers with whom Shaffer served, and information about specific wiretaps performed by the National Security Agency, according to the Times.

In early September, Shaffer and the military reached a compromise: the military would purchase the entire first printing of "Operation Dark Heart"and destroy all copies, while simultaneously redacting passages in the manuscript the military objected to. The edited version was re-released on September 24.

On September 10, Aftergood reported on Secrecy News that several copies of the first printing of the book were already in circulation, and criticized the agreement, arguing that "the mere fact that a government official says certain information could damage national security if it were disclosed doesn't necessarily make it so."

Aftergood also criticized the censorship as impractical, given that some copies of the book were already available. Aftergood observed that, given the public's ability to do a side-by-side comparison between the edited and unedited text, the military's action actually revealed what it considers "sensitive" information. "Therefore, as a practical security policy matter, it seems that the Pentagon's best move would be to do nothing and to allow the book to be published without further interference," Aftergood wrote.


CIA Sues Former Agent Over Book

On October 19, the CIA announced that it is suing a former deep cover agent for a book he published in 2008, claiming that he violated his secrecy agreement with the agency.

The book, "The Human Factor: Inside the CIA's Dysfunctional Intelligence Culture," whose author uses the pseudonym Ishmael Jones, is highly critical of the CIA. According to an October 19 post on Politico by Josh Gerstein, Jones said the impetus for the suit was the book's critical nature. Jones told Gerstein that he believes the CIA has a double standard--permitting the publication of books by, for example, CIA Chief Leon Panetta, but rejecting and fighting publication of books that are critical of the agency.

In the book, Jones wrote that the CIA rejected his initial draft without reviewing it. He later sent back a revised copy, of which about half was redacted by the CIA, Gerstein reported. However, Jones disregarded the CIA's redactions, and in 2008 published the book anyway.

The lawsuit, filed in July 2010, alleges that publication of Jones' book violated the secrecy agreement that all CIA agents sign at the beginning of their tenure at the agency. According to the complaint, Jones' privacy agreement provided that he "was required never to disclose information or material obtained in the course of employment or other service with the CIA that is classified or that reveals classifiable Information." Furthermore, Jones agreed "to submit to the CIA for its review all information or materials ... which contain any mention of intelligence data or activities ... which he contemplates disclosing publicly or which he has actually prepared for public disclosure, either during his employment with the CIA or at any time thereafter ... and was further required to receive written permission from the CIA before taking any steps toward public disclosure."

Panetta defended the lawsuit in a statement, according to Gerstein. "CIA officers are duty-bound to observe the terms of their secrecy agreement with the Agency," Panetta said. "This lawsuit clearly reinforces that message."

The CIA has successfully sued former agents in the past over violations of their secrecy agreement. For example, in 1980, the U.S. Supreme Court ruled that the agency could sue Frank W. Snepp III, and demand royalties he earned, because he failed to submit a book he published about CIA activities in Vietnam to the agency for review. The CIA did not contend that Snepp's book contained any classified information, but nevertheless the Court said that "whether Snepp violated his trust does not depend upon whether his book actually contained classified information."

The Court also rejected Snepp's argument that the agreement constituted a prior restraint on his speech, calling it "an entirely appropriate exercise of the CIA Director's statutory mandate to protect intelligence sources and methods from unauthorized disclosure" in light of the government's "compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service." Snepp v. United States, 444 U.S. 507 (1980)

- Geoff Pipoly
Silha Research Assistant

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