I join Blackfive in condemning the Chicago Tribune, and especially Ms. Spolar. Even the anti-war Human Rights Watch noted, in their report on "Freedom of Expression and the War" that US precedent condemns this sort of reporting:
Eric W. Ober writes: "During the Vietnam War, reporters could go anywhere -- anytime -- often with the military taking us along. There were two basic restrictions in Vietnam. First, that no troop movements be reported prior to engagement. Second, that no faces of dead or wounded soldiers be shown before their families had been properly identified. Both restrictions were totally understandable, and there were virtually no violations of the guidelines by any American news organization.Emphasis added. Meanwhile, the military takes a dimmer view. Military Law Review (PDF warning--long article) points out that:
[We are] reminded of Chief Justice Charles Evans Hughes oft-quoted observation in Near v. Minnesota that the First Amendment's guarantee of freedom of speech does not bar the government from preventing the publication of sailing dates of transports or the number and location of troops. (Citation: Paul D. Kamenar, Media Restrictions Are Necessary to Protect Doops, LEGAL TIMES, Jan. 28, 1991, a t 19-20. See Near v. Minnesota ex rel. Olson, 283 US. 697, 716 (1931).)The Pentagon's guidelines for the media during the Gulf War included explicitly:
Any information that reveals details of future plans, operations, or strikes, including postponed or canceled operations.The government ought to act to defend its right to prevent the publication of this information. I will leave it to the lawyers among you to determine the best course for that action.
UPDATE: The Federation of American Scientists, of which I am a member, has chosen today to draw attention to this report at the Center for Counterintelligence and Security Studies. Entitled "Laws And Leaks Of Classified Intelligence: Costs And Consequences Of Permissive Neglect," it was originally published in 2002. It proposes a strict standard for dealing with journalists who publish classified data.
[A] close reading of 18 USC 798 (sometimes referred to as the SIGINT statute) and surely 50 USC 451 [sic--421, I think, is the right section.-Grim] (Intelligence Identities Protection Act), will show that journalists are already legally accountable for publishing leaked classified intelligence. But these statutes (too narrowly drawn, and considerable intelligence escapes their purview) are apparently unenforced to date, and remain to be tested in the courts....I don't follow his assertion that the portions of the US Code he cites say anything of the sort. I am not a lawyer, but the SIGINT statute clearly applies only to cryptographic information. The Intelligence Identities Protection Act will be familiar to anyone following the Plame business. It's strictly limited on what it criminalizes.Recognize that government leakers and the journalists who publish the classified materials they provide do the equivalent work of spies. Even if their motives differ, the effects are often the same. Through press leaks, unauthorized disclosures can be every bit as damaging as espionage because of the focused exploitation of the US press by terrorists and hostile governments. If leakers and journalists were caught providing some of this classified information clandestinely to a foreign power, they could be prosecuted for espionage. But if they publish in the press--where their leaked sensitive information becomes available to all governments and terrorists, not just one--they derive effective immunity from prosecution under a government that lacks the will to enforce its laws.
That said, the overriding argument is proper, and the US Supreme Cout has plainly said that the government has the right to prevent the publication of exactly this information. If any of you lawyers wish to comment, I'd like to hear what options you see the government having to protect our warfighters from unscrupulous journalists.
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