Nation v. The Department of Defense – Government Misconduct – CCR Docket Fall 1991

On the eve of war in January 1991, CCR  filed suit to force the Pentagon to provide journalists and media outlets with full access to the Gulf war story. Plaintiffs included the Nation, Harpers, Mother Jones, Village Voice, Pacifica Radio News, Sydney Schanberg, William Styron and E.L. Doctorow.

Plaintiffs alleged that once the troop buildup in the Gulf began in August 1990, the Pentagon sponsored certain correspondents and paid for their travel expenses; intervened with Saudi officials to expedite visas and transit papers for those particular journalists; and limited access to military bases and personnel. After fighting commenced, the Pentagon clamped strict access limitations on the press, restricting coverage to pools escorted by the military. Government public relations officers manipulated and expunged  the words and ideas in news stories for publication, citing “security” reasons as justification. These access restrictions violate a long tradition in which journalists have always freely accompanied U.S. armed forces into battle. The 1983 Grenada invasion shattered this freedom; the press was not allowed into Grenada until  the invasion  was over.  A 1984 military panel  recommended  that if created, press pools be as large as possible and be promptly disbanded for full open coverage, but the Pentagon ignored the recommendations, as well as the Defense Secretary’s order for their enforcement. The U.S. invaded Panama without activating the press pool in time. While preparing for the Gulf war, the Pentagon disregarded post­ Panama recommendations of its own investigator, and made no secret of its objective to censor virtually all news coming out of the Gulf by controlling the movement and access by individual reporters and the press pool.

The government tried to have the suit dismissed on February I, 1991, and CCR countered on February 20 with a demand for a preliminary injunction. On March 5, two days before the case was to be heard by the court, the Pentagon withdrew all press restrictions.

On April 16, 1991, the court dismissed the case on the grounds that the fighting had ended, and that the content of the next set of war-time press regulations could not be ascertained. However, it also ruled that the President’s war powers do not suspend freedom of the press and that the courts can adjudicate conflicts between the press and the military. CCR attorneys believe that these rulings may pave the way for a legal challenge to the restrictions should the Pentagon revive them.

Franklin Siegel, Frank E. Deale, Morton Stavis, David Cole, and Michael Ratner