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NOTE: War and the First Amendment: A Call for Legislation to Protect A Press' Right of Access to Military Operations

Rana Jazayerli *

* J.D., Columbia University School of Law, 1996.

SUMMARY:
... This statement, while optimistic regarding press coverage of peacekeeping efforts in Bosnia, reflects the tenuous rights accorded the press by the Pentagon to gain access to and report on United States military operations. ... Thus, in Part III, this Note attempts to define a First Amendment right of access to military operations which can co-exist with the executive's power to wage war and protect "national security interests." ... While this absolute ban on access for the press was lifted within a week, throughout the entire military operation the press enjoyed extremely limited access, subject to the Pentagon promulgated regulations that allowed access only through press pools and submission to a military "security review" of all news reports prior to release. ... From the American Civil War up until the Vietnam War, the press as a whole largely acquiesced to the government's demand for pre-publication censorship in exchange for unlimited access to the battlefield. ... Judge Sand's decision not to reach the merits of the issue could have been avoided if there had been statutory guidelines that balanced a press "right of access" with legitimate national security restrictions - legislation that still does not exist despite the numerous congressional debates and resolutions. ... Furthermore, because pre-publication delay of information can render news obsolete, and therefore, amount to a prior restraint, adjudication of any claim must be immediate. ... TEXT:
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I.
Introduction
"Unlike the gulf war, when journalists complained about being kept under wraps by Pentagon minders, Bosnia will be wide open to the press." n1

This statement, while optimistic regarding press coverage of peacekeeping efforts in Bosnia, reflects the tenuous rights accorded the press by the Pentagon to gain access to and report on United States military operations. The Pentagon retains absolute discretion to grant or deny such access to the press based upon its own determinations of governmental interests. n2

The issue of access to military operations, however, stems from the greater issue of government censorship of the press in times of war - an issue that has provoked tension between the press and the government for over a century. This issue arises when First Amendment rights to report news are in apparent conflict with the govern- [*132] ment's constitutional right to "wage war successfully." n3 Prior to the Vietnam War, the nature of government censorship of the press involved screening of information prior to publication. n4 In the last two decades, the government has shifted to a policy of denying press access to military operations n5 - a policy that has put the press on the defensive. While the Supreme Court has clearly placed the burden on the government to prove the legitimacy of prior restraints on press publications, n6 the Court has never held that there is a First Amendment right of access to military operations. n7

The conflict between the press' right of access to military operations and the government's constitutional power to "wage war successfully" came to a head during the Persian Gulf War when two suits were filed by members of the press opposing military regulations that limited access to news gathering. n8 In the Nation Magazine case, District Court Judge Sand refused to rule on the merits of the claim for equitable reasons, n9 despite his finding that the issue of a right of access to military operations was justiciable. n10

Part II of this Note traces the history of government censorship of the press beginning with the American Revolution and continuing through the Persian Gulf War. While much of the Note's later analysis derives from the developments during the Persian Gulf War, [*133] the historical review focuses on the government's past use of prior restraints to censor the press and the sudden switch to denying press access to military operations following the Vietnam War. This part concludes that in light of the Court's refusal to rule on whether there is a constitutional right of access to military operations, the issue remains unresolved. Thus, in Part III, this Note attempts to define a First Amendment right of access to military operations which can co-exist with the executive's power to wage war and protect "national security interests." n11

Despite strong support for the argument that there is a First Amendment right of access to military operations, given existing precedent and prudential concerns, it appears unlikely that the courts will ever resolve this issue on the merits. As demonstrated in Nation, having found the issue justiciable, Judge Sand nonetheless invoked equitable grounds to avoid the need to balance the claim with the uncertain national security concerns raised by the government. n12 This Note will, therefore, also address the role of the courts in Part IV, arguing that they do not offer a forum to resolve the issue of press access in future litigation due to apparent judicial reluctance to rule on the merits of an issue where the executive has advanced a "threat to national security" argument, and also due to the general reluctance of the majority of news organizations to bring suit seeking resolution of the issue. When issues of civil liberties and national security collide, Congress often provides the best medium to balance conflicting positions. Therefore, in Part V, this Note will argue that legislative action is necessary to protect both a press right of access to military operations and legitimate national security concerns, concluding with proposed legislation to govern the procedure and substance of government censorship of the press during military operations.

II. Historical Overview
Analysis of a First Amendment right of access to military operations requires an understanding of the historical rights accorded the press beginning with the American Revolution and continuing[*134] through the restrictive regulations imposed on news gathering during the Persian Gulf War. While government censorship of the press during times of war is not new, historically the press enjoyed full access to the actual battlefields. Prior to the Vietnam War and the Pentagon Papers case, the government relied primarily on pre-publication restraints and censorship to monitor press reporting. Restricting press access is, therefore, a new phenomenon in government censorship of the press.

A. Press Censorship Before the Vietnam War
During the American Revolution, little or no official government censorship of the press occurred. n13 This was due mainly to the methods of reporting, based primarily on private letters and official messages, which resulted in tardy and haphazard news coverage. n14 Such coverage presented little or no threat to the war efforts and resulted in only a few incidents of government imposed censorship. n15 Furthermore, though laws prohibiting the publication of information that could aid the enemy existed, these laws proved ineffective because public sentiment against them resulted in unwillingness by grand juries to indict individuals charged. n16 This trend continued through the War of 1812 and the Mexican-American War of 1846, most likely because the limitations of technology left no need for military restrictions on the press. n17

The Civil War marked a change in the way war news was reported. The increased availability of telegraphs allowed for more immediate and extensive coverage by the press. n18 This extensive coverage was aided by the almost unlimited access granted to the war correspondents, including access to combat zones. n19 The Civil War, however, also marked the implementation of the first government program of censorship "imposed to prevent the publication of information of value to the enemy" and to "stifle criticism of the[*135] conduct of war." n20 This censorship did not affect access to the battlefield which remained generally unlimited, subject only to the decision of the generals leading the battles. n21

The period in American history following the Civil War witnessed the emergence of an independent and objective press. n22 This period extended through the Spanish-American War, where war correspondents continued to encounter little or no government censorship. n23 World War I, however, resulted in a significant increase in press censorship by the military and government because the American government chose to adopt the severe restrictions used by its allies, Great Britain and France, when America entered the war in 1917. n24 Censorship, however, did not limit the access to military operations historically enjoyed by the press, but imposed a requirement that the press submit to pre-publication censorship to gain such access. n25 This marked change in freedom to report war news was not readily accepted by the American press, but opposition by the press towards the pre-publication review did not influence government[*136] policy. n26 This effective censorship remained in force throughout the entire World War I. n27

Prior to World War II, the Roosevelt administration formulated "tentative censorship plans" which were implemented following the attack on Pearl Harbor. n28 Under the War Powers Act, n29 President Roosevelt created the Office of Censorship, which relied on the "power of persuasion linked to a voluntary news censorship system that was worked out with the full cooperation of the media." n30 Relying on the governing censorship policies as developed during the First World War, and implemented by the Office of Censorship, the government and military leaders were not concerned about the possible premature release of sensitive information. As a result, the press was not denied access to the battlefield; correspondents were present on the beaches of Normandy and many other "critical covert actions of the war." n31

The generally cooperative relationship during World War II between the press and the military led to a "gentlemen's agreement" in the first stages of the Korean War. n32 At the beginning of the Korean War, press censorship - in the form of pre-publication[*137] review - was completely voluntary; this "gentlemen's agreement," however, ultimately proved to be an ineffective method of protecting national security interests because of the highly "competitive nature of the news business." n33 The government's reliance on voluntary self-censorship proved ineffective because many news organizations chose to publish articles containing sensitive war information. This led to a government-imposed censorship program that was "[very] political in tone and [very] rigidly enforced." n34

B. Press Censorship During the Vietnam War
In light of the trend of increased censorship during times of war, the developments of Vietnam are especially unusual. The government and the military imposed no restrictions of access to the press and only limited censorship of the information transmitted to the public in the United States. n35 The unrestricted access to the battlefields allowed for full coverage of the extremely graphic and disturbing aspects of the war in Vietnam. n36 When the press began to criticize the government about the war, the military reaction was not censorship, but a public relations campaign aimed at changing public perception of the war. n37 This campaign relied primarily on government denial and distortion of the press' reports. n38 [*138]

The Vietnam War resulted in an erosion of trust between the military and the press. n39 The public relations failure of Vietnam ended the cooperative relationship between the press and the military, as the government came to believe that the "lesson" of Vietnam was that the press had "lost the war for America." n40 The government resolved that the press would never again be as free to report and, thus, to criticize military operations. n41

C. The Shift in Government Censorship to Denial of Access
The press felt the effects of the "lesson" of Vietnam throughout the 1980s when the United States embarked on a series of short-lived military operations in Grenada, Libya, and Panama. When the United States invaded Grenada, the Pentagon "for security reasons and "because their presence would complicate the force's logistical problems,' did not allow American correspondents to join the invasion force" for the first two days. n42 Outraged, the majority of the press protested directly to the Department of Defense against this total denial of access. n43 Larry Flynt, publisher of Hustler magazine, went one step further by filing suit in federal district court seeking declaratory and injunctive relief alleging that the exclusion of the press from Grenada was in violation of the First Amendment. n44 The court, however, refused to rule on the merits, finding the issue moot because the restrictions on access had been lifted two days after the invasion. n45

Despite the court's failure to resolve the issue of press censorship during war, the Department of Defense felt the pressure of the[*139] media as a whole, and thus appointed a panel to study military-press relations. This panel, headed by Brigadier General Winant Sidle, former chief of public affairs for the combined U.S. services in Vietnam, put together a series of recommendations for press coverage of future military operations. n46

The majority of the press regarded the Sidle panel recommendations as a victory in light of their exclusion from Grenada; despite the implementation of a pool system, the report had no mention of field censorship or military escorts and appeared to guarantee some access. n47 Reality, however, was less than the press had hoped. When the United States bombed Libya, no correspondents were present. n48 When the United States invaded Panama, the press pool military plane landed five hours after military operations had[*140] ceased. n49 Moreover, upon arrival the press were denied all access to the actual battle zone. n50

The developments following the Vietnam War demonstrated how tenuous the right of access to military operations - a right that the press had long taken for granted - truly was. Moreover, the ineffectiveness of the suit brought against the government by Larry Flynt, and the ineffectiveness of the Sidle Panel recommendations to protect against denial of access to military operations in Panama, foreshadowed the system of censorship the government would invoke during the Persian Gulf War.

D. Press Censorship During the Persian Gulf War
Restrictions on the press access to military operations in the Persian Gulf began long before the United States was involved in actual combat. Following the August 2, 1990, invasion of Kuwait by the Iraqi military, the United States began a build-up of troops in Saudi Arabia. n51 At the command of Secretary of Defense Richard Cheney, reporters were not allowed to accompany the initial deployment of American troops. n52 While this absolute ban on access for the press was lifted within a week, throughout the entire military operation the press enjoyed extremely limited access, subject to the Pentagon promulgated regulations that allowed access only through press pools and submission to a military "security review" of all news reports prior to release. n53 [*141]
The press' response to the military guidelines was virtually unanimous in its disfavor. n54 The major complaint by the press was that the censors "exploited the pre[-]publication review system, modifying stories to portray the military in a favorable light, instead of editing only material which posed a legitimate threat to security." n55 Despite the press' overwhelming disfavor with the pre-publication review system, only five of the 820 censored pool reports were officially appealed to the Pentagon. n56 Moreover, the regulations in effect during American military operations Desert Shield and Desert Storm - the CENTCOM guidelines - were lifted on March 4, 1991, upon the "informal cessation of hostilities in the Persian Gulf." n57

The two cases filed by members of the press in response to the CENTCOM guidelines, however, challenged the use of press pools and limited access as opposed to the required pre-publication review. n58 The primary case, filed by The Nation Magazine and Agence France-Presse in the Southern District of New York, argued that the use of press pools by the U.S. military violated the press' First Amendment right to "unlimited access to a foreign arena in which American military forces are engaged." n59 The plaintiffs further argued that the press pool system, as applied by the military[*142] during the Persian Gulf War, constituted discriminatory treatment of the different press organizations. n60

Despite resolving the issue of justiciability in favor of the plaintiffs, District Court Judge Sand, in Nation, refused to decide whether a First Amendment right of access existed in the context of military operations. Judge Sand held that the plaintiffs had standing because they had suffered clear injury by denial of access to the press pools; n61 the issue did not raise a political question because "resolution of the question [did] not impact upon the internal functioning and operation of the military," n62 and it did not implicate the President's Article II Commander-in-Chief power; and the issue was not moot because, in light of the numerous short-lived military operations by the U.S. government during the previous decade, the issue was "capable of repetition, yet evading review." n63

Judge Sand further noted that the press right of access to military operations was a novel legal question that arguably implicated the First Amendment. Citing Branzburg v. Hayes, n64 he stated that:

There is support for the proposition that the press has at least some minimal right of access to view and report about major events that affect the functioning of government, including, for example, an overt combat operation. As such, 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 these[*143] military operations are not closely akin to a building such as a prison nor to a park or a court room. n65

Judge Sand ultimately refused to rule on the merits, despite initially finding the actual issue justiciable, because the plaintiffs' claim for injunctive relief was moot; because the war had ended and the restrictions had been lifted, and there no longer existed any "operative practice" for the court to enjoin. n66 Judge Sand further held that the plaintiffs' claim for declaratory relief on the issue of a constitutional right of access to military operations was not specific enough to provide the court with "a well focused controversy," and therefore did not present the "underlying constitutional issues ... in a clean-cut and concrete form." n67

While the events during the Gulf War highlighted the issues and conflicts between the government's right to wage war and the press' right to access and report on government actions, the balance remains undefined. As a result of Nation, the rights of the press are tenuous. Despite Judge Sand's dicta regarding "support for the proposition that the press has at least some minimal right of access to view and report ... an overt combat operation," the avenues available to the press to pursue this right have been greatly diminished by his refusal to actually rule on the claim. n68 Moreover, the standards are unclear; how much access the press should be granted and what interests by the government can restrict such access are issues left unresolved. n69 Thus, unless these standards are precisely defined, the conflict between the press and the military may again arise when the United States engages in another military operation. [*144]III.
A Right of Access to Military Operations

Historically, the government employed criminal statutes n70 and prior restraints n71 on press publications to restrict the press during their coverage of war. n72 This use of prior restraints, however, implicates a different First Amendment analysis than a discussion of whether there exists a right of access. n73 This distinction stems primarily from the fact that the Supreme Court has held prior restraints on publication to be presumptively invalid. n74 The Court, however, has never held that a right of access to military operations exists, nor can a general right of access be presumed from the First Amendment. n75

A. A Right of Access
As articulated by the Supreme Court, the right of access under the First Amendment is far from clear even outside the context of[*145] military operations. In general, the Court has taken a very limited view, despite recognizing that "without some protection for seeking out the news, freedom of the press could be eviscerated." n76 Specifically, the Court has not extended its finding of a right of access beyond the limited context of criminal proceedings. n77 Thus, an analysis concerning a right of access to military operations must necessarily begin from limited case law.

The initial case finding a First Amendment right of access is Richmond Newspapers, Inc. v. Virginia, n78 where a plurality of the Court held that absent "an overriding interest articulated in findings," the trial of a criminal case must be open to the public. n79 The plurality holding, therefore, implied a presumptive right of access absent an overriding governmental interest. Two years later, however, a majority of the Court articulated a more restrictive reasoning behind this First Amendment right of access to criminal trials. n80 Applying a three-part test which placed the initial burden on the party asserting the right of access, the Court held that:

1. A plaintiff must establish that the place "historically had been open to the press and general public." n81 [*146]

2. A plaintiff must also establish that the right of access "plays a particularly significant role in the functioning of the process in question and of the government as a whole." n82

3. If the plaintiff is able to satisfy these elements, access could still be denied if the government could establish that "the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest." n83

B. A Right of Access to Military Operations
In Globe Newspapers Co. v. Superior Court, the Court did find that the plaintiff had established a First Amendment right of access because "the criminal trial historically has been open to the press and general public," n84 and the government had failed to demonstrate a compelling interest to deny such access. n85 Thus, to establish a right of access to military operations, the press would have to satisfy the conditions articulated in Globe. n86 Specifically, the press must show that the battlefield has historically been open to the press and the general public, and that this right of access by the press plays a "particularly significant role in the functioning of [American involvement in military operations] and the government as a whole." n87

Based on historical access n88 and the public's strong interest in knowing about its government's actions in times of war, the press could argue that there is a First Amendment right of access to military operations. The courts, however, would have to consider[*147] whether such a right exists - something they have yet to do. n89 Because the government has shifted from the use of prior restraints to limiting access, the initial burden has shifted from the government to the press to prove this right of access. n90 Therefore, absent an articulated right of access by the courts, the government retains the discretion to decide whether to grant access to military operations. Thus, the government could choose to deny the press access to military operations totally, or condition any grant of access upon discriminatory pools and unconstitutional review. n91

C. First Amendment Rights During War
Traditionally, the government used prior restraints on publication to restrict press freedom to report on military operations. n92 This form of censorship places the burden upon the government to justify its necessity. n93 New York Times indicates that national security may justify such censorship under the First Amendment, provided the government sustains the burden of proving an actual threat to "national security" interests. n94 With respect to a right of access, however, the press must first establish that the battlefield has been historically open to both the press and the public, n95 before the government must prove that national security is a "compelling governmental interest." n96 The press must also establish the importance of the role of the press in the functioning of military operations and the government as a whole. n97

As the discussion in Part II of this Note indicates, the press historically enjoyed access to the battlefield. Moreover, the function[*148] played by the press in general - that of a check on government - is no less important, and arguably much more so in the context of government involvement in military operations abroad - military operations which risk the nation's security and the lives of our nation's sons and daughters. Thus, under the criteria established in Globe, if allowed to argue the issue in court the press should be able to prove successfully a First Amendment right of access to military operations. n98

Moreover, the Supreme Court has acknowledged that in exercising its freedom to report, and in fulfilling its function as a check on government, the press must be able to obtain the information. n99 Thus, though Judge Sand refused to decide on the merits of the issue in Nation, he noted that the Supreme Court recognized the need for the press to access information "even when the government has suggested that national security concerns were implicated." n100 While refusing actually to decide on the existence of a constitutional right of access, in dicta Judge Sand stated that it is "arguable that...at least some minimal constitutional right to access" exists with respect to military operations. n101

Judge Sand's stated reason for not ruling on whether there exists a right of access to military operations was because the constitutional issue was not presented in a concrete form. n102 Based upon this reasoning, as well as Judge Sand's dicta regarding "at least some minimal constitutional right of access," it is possible that in future litigation the press may convince a court to hold that there is a First Amendment right of access. Nonetheless, access may still be denied if the government can demonstrate a compelling governmental interest, and that denial of access is narrowly tailored to satisfy this interest. n103 Given the national security interests implicated during military operations, it is unlikely, however, that any court will actually reach the merits of the issue. n104 The national security concerns will continue to induce the courts - not prepared to deal with[*149] the adverse consequences of incorrect judgments regarding national security - to raise equitable grounds for not resolving the merits of the claim. n105

1. National Security and the Use of Prior Restraints
The Supreme Court has conceded that different presumptions are necessary when concepts of free speech are applied in the context of war. In his opinion in Schenk v. United States, Chief Justice Holmes stated that:

When a nation is at war many things that might be said in times of peace are such a hindrance 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. n106

In Near, Justice Hughes relied on this view when he wrote:

No one would question but that a government might prevent actual obstruction to its recruiting service or publication of the sailing dates of transports or the number and location of troops. n107

This statement by the Near Court has since been regarded as the "national security" exception to the presumption of invalidity of prior restraints. n108 This view has become so widely accepted, that even the press has agreed that some limitations on the freedom of press are acceptable due to the need for national security. n109

Despite this widely accepted view that national security interests may limit First Amendment rights, which the Supreme Court has since reaffirmed, n110 the Court has not blindly accepted the govern- [*150] ment's assertion of "national security" even within the context of war. n111 The Court has maintained that the burden lies with the government to prove "that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety" of individuals or national interests. n112

New York Times, Co. v. United States (the "Pentagon Papers" case) represented a victory for the press against the government's national security claim because the Court refused to uphold an injunction preventing The New York Times and The Washington Post from publishing materials "revealing the workings of the government that led to the Vietnam war." n113 Despite the United States' involvement in Vietnam, the Court maintained the presumption of invalidity of prior restraints, placing the burden on the government to rebut this presumption. n114 The case, however, generated nine separate opinions, as each justice struggled to formulate a workable resolution for the conflicting First Amendment and national security concerns. n115

In New York Times, the government argued that despite the First Amendment the President has authority in times of war to protect the nation against publication of information whose disclosure would endanger the national security, n116 and that this authority stems from "two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief." n117 Justice Black, however, rejected this assertion of inherent executive power to limit First Amendment rights on the theory that it could "wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hoped to make "secure'." n118

However, Justice Black's view that an assertion of national security by the Government could not justify an abridgement of First[*151] Amendment rights did not represent the majority view. In his concurence, Justice Stewart stated that "in the area of basic national defense the frequent need for absolute secrecy is, of course, self evident." n119 Nonetheless, he refused to enjoin publication of the "Pentagon Papers" because he could not "say that disclosure of any of them [would] surely result in direct, immediate, and irreparable damage to our Nation or its people." n120

Thus, the Court in New York Times refused to accept the government's claim of national security as a basis for enjoining publication, not because the majority did not view it as a legitimate claim, but because the government had failed to prove that publication of the papers actually implicated national security concerns. n121 This conclusion is relevant to the issue of whether there exists a right of access to military operations because it demonstrates that the government's ability to assert national security as a compelling governmental interest that justifies restrictions on First Amendment rights is not absolute. While some situations may justify denial of access - should this right be established - the Pentagon Papers case indicates that the issue must be determined on a case-by-case balancing of the competing interests.

2. National Security and a Right of Access
In light of the fact that the government may rebut a finding of a right of access to military operations by demonstrating a "compelling governmental interest," it is necessary to examine the interests the government could presumably advance. In response to the restrictions imposed during the Persian Gulf War, the government asserted three governmental interests: logistics, surprise, and morale. n122 Accepting[*152] that these three interests do constitute "governmental interests" the government would have to further demonstrate, on a case-by-case basis, that these interests are "compelling" enough to justify restrictions on the press' ability to access military operations.

The burden upon the government, however, in the context of access will likely be less stringent than in the context of prior restraints. n123 Given the present reluctance to recognize a right of access to military operations, n124 if the courts do eventually so hold, this right could be defined under the limited public forum doctrine as opposed to a right of access. n125 Such a ruling would result in access to military operations that most likely would not be expansive.

D. National Security: A Compelling Governmental Interest
In light of the Supreme Court's willingness to accept national security as a legitimate basis for abridging the First Amendment presumption of the invalidity of prior restraints on speech, n126 the[*153] question remains to what extent and how the government may abridge this constitutional right, and thus the less certain right of access, even in the exercise of another explicit constitutional authority. n127 While the exercise of war powers may implicate the highest authority of both the Executive and the Legislature, such authority should not eradicate the press' ability to report on the government's actions. n128 On the contrary, one could 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. n129 Thus, the exercise of First Amendment rights should be protected in some manner, even if the Executive and Legislature are acting in conjunction under their combined foreign affairs and war powers. n130

The principle of a free press in the view of the Framers is that of a necessary check on government in a democratic society. n131 Such a check could, however, be nullified if the government is allowed to cloak all information in secrecy under an unreviewable claim of national security. n132 Thomas Jefferson expressed his view of the First Amendment when he said:

... were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter. n133

Ironically, despite being one of the greatest advocates of a free press, Thomas Jefferson's original formulation of the First Amendment, as[*154] proposed to James Madison during the drafting of the Bill of Rights, included a limitation comparable to that of the current national security limitation. n134
The hallmark case for Executive powers in the field of foreign affairs is United States v. Curtiss-Wright Export Corp., n135 where the Court, upholding an indictment charging the defendants with conspiring to sell arms in the United States for use in a South American conflict, articulated the most expansive view of Executive power. The Court stated that "in the vast external realm [of foreign affairs], with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation." n136 Yet this articulation does not indicate an Executive power to limit those individual rights expressly granted in the Constitution, even in the exercise of this expansive foreign affairs power. n137

Sixteen years later, the Court decided a case which appeared to undermine the view of expansive Executive power in the field of foreign affairs. In Youngstown Sheet & Tube Co. v. Sawyer, the Court found President Truman's seizure of steel mills to prevent a labor strike unconstitutional, despite the United States' involvement in the Korean War. n138 The Court refused to accept - on the facts of the case - the argument that the Executive possesses inherent emergency power - power which expands express constitutional authority - during times of war. n139 Despite the case's actual holding, however, the concurrences generated by Youngstown imply, unlike the opinion in Curtiss-Wright, that under certain instances[*155] Executive War power may increase explicit constitutional authority. n140 The Youngstown concurrences expressed the view that the lack of emergency power in that case was due to the domestic aspects of the case - the seizure of domestic steel mills - and moreover, the fact that Congress "had spoken." n141 The act of "seizure" was textually committed to another branch of government; the President's actions were unconstitutional because they represented an usurpation of power, not because seizure was unconstitutional. n142

With respect to First Amendment rights, there is no explicit textually committed authority for any branch of government to limit them. n143 This omission could imply that First Amendment rights may never be limited. However, under his Commander-in-Chief power, the President has the textually committed right to "wage war successfully." n144 Such an authority implies by any means necessary. Therefore, if an act by any individual, including a member of the press, could threaten the war effort, then the President not only has the authority but the responsibility to prevent such an act, at least when war is waged externally and the restrictions are of direct consequence to this external war. n145

While this analysis is far from satisfying, the concurring opinions in New York Times, combined with the dicta from Near, indicate that the Court has accepted the view that the Executive possesses constitutional authority to limit First Amendment rights if national security is threatened. n146 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. In the context of access to[*156] military operations, the executive branch has granted very limited rights based upon the executive branch's unarticulated national security concerns. n147 Moreover, unlike with the use of prior restraints, the government has not had to articulate for judicial review the exact nature of these national security concerns to justify denial of access. n148

In New York Times, Justice Stewart accepted the need for "absolute secrecy" in the area of national defense, and concluded that:

The responsibility must be where the power is. If the Constitution gives the Executive a large degree of unshared power in the conduct of foreign affairs and the maintenance of our national defense, then under the Constitution the Executive must have the largely unshared duty to determine and preserve the degree of internal security necessary to exercise that power successfully. ... It is the Constitutional duty of the Executive ... to protect the confidentiality necessary to carry out its responsibility in the fields of international relations and national defense. n149
Nothetheless, Justice Stewart joined the majority of the Court which invalidated the prior restraint, compelled by the need for an "enlightened citizenry" to act as a check on Executive authority in the "absence of the governmental checks and balances present in other areas of our national life." n150

Checks on the Executive, however, need not be limited to a citizenry enlightened only to the extent deemed necessary by the Executive. Executive exercise of self-restraint in the use of national security to limit press coverage could be enforced by legislative guidance and direction. n151 Many of the Justices in New York Times did not share Justice Stewart's expansive view of Executive authority. Justice White, in his concurring opinion in New York Times, refused to uphold the government's assertion of an inherent Executive[*157] authority to restrain publication without "legislation by Congress, based on its own investigations and findings." n152 In addition, Justice Stewart noted that "[in the Espionage Act of 1917 Congress authorized criminal sanctions; Congress] has not, however, authorized the injunctive remedy against threatened publication." n153

New York Times, however, dealt with the use of prior restraints - a presumptively invalid practice. n154 Since the decision in New York Times, the government has shifted from restraining publication - where the burden rests on the government to show a compelling governmental interest justifying such censorship n155 - to denial of access to military operations, a right not yet recognized under the First Amendment. Thus the initial burden rests on the press to prove the existence of this right before the government need justify any restrictions. n156 Moreover, the courts' continued refusal actually to reach the merits of the issue has effectively granted the Executive unreviewable discretion to determine whether to grant access to military operations and under what conditions. n157

Under the Court's approach in New York Times, while the government may have the constitutional authority in times of war to limit press coverage, its authority is limited to the extent that legitimate national security concerns justify censorship. History, however, demonstrates that the government often imposes restrictions upon the press to maintain public support for the war and other governmental concerns that may not implicate legitimate national[*158] security concerns. n158 Moreover, despite the dicta in Nation, the Executive's discretion to decide whether to grant the press access to military operations remains unfettered. n159 This lack of external review provides no protection against Executive restrictions on access to future military conflicts that extend beyond that which national security concerns may demand. James Madison expressed concern that this may occur when he said that "perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad." n160 Absent congressional legislation to offer guidance and direction to the courts, as well as to provide mechanisms for external checks on Executive discretion, denial of access and press censorship will remain unreviewable.

IV. The Role of the Courts
The initial issue of concern is whether the courts provide a forum for the press to litigate the issue of a First Amendment right of access to military operations. Many commentators have viewed the ruling in Nation as a victory for the press despite the court's refusal to rule on the merits of the issue, because Judge Sand found the issue justiciable and not barred by mootness. n161 Nonetheless, he refused to grant the declaratory judgment sought by the press, finding that the issue was not sufficiently narrow and that the plaintiffs had failed to propose any solutions to the issue of access beyond a demand for "unlimited unilateral access." n162 In response, many legal theorists - viewing the opinion in Nation as a success for the press - have suggested approaches for the press to follow in future litigation based upon Judge Sand's critique of the plaintiffs' case in Nation. n163

Despite the apparent foundation laid out in the Nation opinion for a successful future claim by the press, it is unlikely that the courts will ever rule in favor of a right of access to military operations, [*159] irrespective of the fact that the press has historically enjoyed access to the battlefield, n164 and the fact that the role of the press is significant to the functioning of our government during military operations. n165 This theory stems from several perceptions: the reluctance of the courts to adjudicate an issue laden with national security ramifications - to avoid the difficult balancing of unknown risks, the courts will continue to raise equitable grounds for dismissing such a suit despite Judge Sand's assertion that he would adjudicate the issue given a more concrete case; n166 the historical deference accorded the executive and military by the judiciary; and the reluctance by the majority of the press to bring suit and risk the already attenuated access granted them by the government.

A. Judicial Reluctance
In Nation, Judge Sand refused to rule on the merits, holding that the relief sought by the plaintiffs - injunctive and declaratory relief - was not appropriate because all military restrictions during the Persian Gulf war had been lifted. The true dictates of prudence, n167 however, were perhaps more aptly expressed by the district court judge in Flynt, who stated that even if the claim had presented a live controversy and was meritorious, he would:

Exercise [his] equitable discretion and decline to enter an injunction [out of concern that an] injunction ... 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. n168 [*160]

When national security concerns are implicated, the courts are reluctant to balance such concerns with First Amendment standards out of fear that, absent clear guidelines and concrete knowledge regarding national security interests, a mistaken judgment could result in the deaths of individuals and an erosion of the respect accorded the judiciary - a respect necessary for the continued functioning of a branch possessing neither "the power of the purse or the sword". n169 Despite the ruling in New York Times, where the majority of the Court refused to uphold the government's claim of prior restraint, Justice Blackmun's dissent may reflect a view which has surpassed the actual holding of the case. Expressing his deep concern over the Court's rejection of the national security claim, Justice Blackmun said:

If, with the Court's action today, these newspapers proceed to publish the critical documents and there results therefrom "the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate," to which list I might add the factors of prolongation of the war and of further delay in the freeing of United States prisoners, then the Nation's people will know where the responsibility for these sad consequences rests. n170

As Professor Koh indicates, the courts have increasingly used their equitable powers to decline to rule on cases where foreign affairs and national security are implicated. n171 As technology continues to increase, and coverage of events remains immediate, the risks, and thus the reluctance, associated with news coverage of war will grow more acute. n172 Without some form of judicially cognizable guidelines to balance national security interests with countervailing First[*161] Amendment interests, the courts will continue to invoke their equitable powers and avoid resolving the issue. n173

B. Judicial Deference
A further reason why the courts do not provide a forum for the press to litigate their First Amendment rights in the context of war is the extreme deference accorded the government and the military by the judiciary, as has been aptly demonstrated in a series of cases dealing with the President's foreign affairs and war powers. n174

There exist various methods the courts employ in their exercise of deference to the other branches of the government. In the context of press rights during war, these methods could include: (1) a finding that the action, while justiciable, is a valid exercise of constitutional authority by the President and the military; n175 (2) a determination that the President is not bound by the Constitution in the exercise of[*162] his war powers; n176 (3) a finding that the constitutional claim is not reviewable. n177

In this "era of supreme deference to the executive," n178 questions of national security and war provide even greater concern to the courts. As Judge Heins A. Linde wrote, the very exception to the Near doctrine of prior restraints - the exception in times of war - exists in the minds of all judges when considering First Amendment claims. In such contexts, "many judges will feel obliged to react... by restraining the press to preserve the status quo." n179 The holding in Nation supports this view; Judge Sand's decision not to reach the merits of the access claim "restrained the press [and] preserved the status quo." n180 Moreover, despite the indication that a more defined claim would be adjudicated, the underlying national security concerns will be no more manageable, and thus, will continue to impede future litigation. n181

C. Press Reluctance to Bring Suit
A more distinct reason why the courts do not present a potential forum for the press to address the issue of a First Amendment right[*163] of access to military operations rests in the press itself. n182 The history of the relationship between the press and the military has been one of give and take. From the American Civil War up until the Vietnam War, the press as a whole largely acquiesced to the government's demand for pre-publication censorship in exchange for unlimited access to the battlefield. n183 The end of this cooperative relationship, manifested in the government's shift to denying access, has left the press hesitant to provoke the situation and upset the still existing, yet tenuous, balance. n184

The end of this cooperative relationship following the Vietnam War marked the end of the press' ability to rely on unlimited access to the battlefield. Moreover, this very shift in government policy has decreased the press' chances of prevailing in court because, thus far, a right of access has only been recognized in the limited context of criminal proceedings. n185 Unlike New York Times, where the government sought injunction against publication, a suit for right of access requires the press to assume the burden of establishing the existence of such a right with respect to military operations. Such a right under the First Amendment is potentially limited in scope and uncertain in the context of military operations. n186 While a potential victory in court with respect to a right of access may increase the press' bargaining power with the military, the likelihood of a favorable judgment is less certain than the risk of an adverse ruling. n187 Though Nation held that the issue is justiciable, the case did not provide assurance that the press would be able to establish an unlimited right of access to military operations. n188 [*164]

The various proposals for successful judicial challenge of media rights require a cohesive front by the major media organizations. n189 Yet such participation appears extremely unlikely. Unlike the censorship policies in place during military operations in Grenada, Panama, and Libya, the government did grant some access, in the form of press pools, to press correspondents during the Persian Gulf War. n190 These press pool regulations favored major media organizations - the very media organizations with the influence to litigate successfully were not denied access. n191 Thus, while the access granted was restricted, and pre-publication review acted to censor the news coverage, it is unlikely the large press organizations will threaten their relatively advantageous position for a tenuous claim in court.

V. Congressional Intervention

A. Past Congressional Hearings on Media Rights
In 1983, following the U.S. invasion of Grenada and the resulting media blackout, the House of Representatives held hearings on the issue of civil liberties and national security. n192 The hearings resulted in a resolution "expressing the sense of the House of Representatives regarding the blackout of press coverage in Grenada" and a resolve that in future military operations the branches of the federal government "should honor and uphold the protections of the press provided by the first amendment." n193

The hearings and subsequent resolution, however, placed no binding restrictions upon the Executive in the exercise of censorship over the press. The resolution did lead to the Sidle Panel, headed by[*165] General Winant Sidle, where members of the press and military attempted to resolve their differences. n194 Subsequent military operations demonstrated, nonetheless, the failure of these recommendations to protect the rights of the press, most notably during the Persian Gulf War. n195

Consequently, two weeks after the Persian Gulf War officially began, members of Congress again held debates on the issue of press restrictions and the need to protect their First Amendment guarantees. n196 As Representative Owens, of Utah, stated during the debates: "No one really believes that the open access policy for news reporters which existed during the Vietnam war deterred the effectiveness of U.S. efforts, or endangered our troops." n197

The debates focused on the "overbroad" use of censorship, citing instances where Pentagon officials deleted the word "giddy" from one news article, and replaced it with the word "proud" when describing the mood of pilots just back from a bombing raid, as well as the restrictive pool requirements and the requirement for constant military escorts. n198 The debate did not deny the need for limits on reporting in light of national security concerns, but centered on the fact, as Representative Edwards, of California, expressed, "that the current Pentagon leadership does not accept the role of the media in a free society." n199 This lack of acceptance by the Pentagon leadership led to censorship of information which was not militarily sensitive. n200

The most significant aspect of the debate was the acknowledgement by a number of representatives, as stated by Representative Stokes, of Ohio, that "the media have a constitutional right to access to information regarding the war in the Persian Gulf." n201 Less than two months later, however, the district court judge in Nation refused[*166] to resolve this issue. n202 Judge Sand's decision not to reach the merits of the issue could have been avoided if there had been statutory guidelines that balanced a press "right of access" with legitimate national security restrictions - legislation that still does not exist despite the numerous congressional debates and resolutions. n203
During these debates regarding press restrictions imposed during the Gulf war, a concurrent resolution was proposed that stated the sense of the Congress that "the Defense Department guidelines should be revised." n204 The proposed resolution stated that the media should have "timely access, in as complete a manner as possible, to all unclassified information and activities, other than information and activities that, if disclosed, would endanger the lives or security of U.S. forces." n205 The resolution, however, merely expresses the sense of Congress, and is non-binding upon the Executive. Thus, the grant to the press of a right of access is not secure.

What is required is actual legislation to protect a right of access to military operations. Absent binding statutory guidelines and requirements, the government, through the Department of Defense, maintains unreviewable discretion to impose increasingly restrictive policies regarding press coverage - policies which enable the government to control the public's perceptions of military operations, and potentially conceal the true nature of events. Executive decisions remain unreviewable because, absent statutory guidelines that balance the First Amendment and national security interests, the courts will continue to avoid ruling on the issue of whether there exists a right of access to military operations. [*167]

B.
Access to Military Operations Does Not Fall Within the President's Core Commander-in-Chief Powers

A potential issue that could arise if Congress attempts to legislate a press right of access to military operations is whether the right to control access to the battlefield falls within one of the president's core Commander-in-Chief Powers. n206 Such a conclusion would render congressional legislation invalid, as a violation of separation of powers between the Executive and the Legislature. n207 In order for the issue, however, to implicate the President's Commander-in-Chief authority, it must involve not only "the activities of the United States military," n208 but must also fall outside Congress' constitutional war powers. n209

To determine whether the President has the sole authority to control access to the battlefield, it is necessary to understand what authorities are inherent in the designation of the president as Commander-in-Chief. As Ely notes, an early draft of the Constitution vested the power "to make war" in Congress, but later changed the power "to declare war." n210 Ely argues that this change was made to: "make clear that once hostilities were congressionally authorized, the president, as "commander in chief,' would assume tactical control (without constant congressional interference);" and "reserve to the president the power, without advance congressional authorization, to repel sudden attacks." n211 Under Ely's theory, the issue becomes[*168] whether a press right of access to military operations implicates the president's "tactical control."

Proponents of broad executive Commander-in-Chief powers argue that the president has the further authority to involve the nation in military operations without prior congressional authorization. n212 This argument, however, does not alter the issue of whether access to the battlefield implicates the president's authority over tactical control once military operations have begun. n213 Concepts of tactical control refer to "day-to-day combat decisions" and other armed forces' activities while engaged in military hostilities. n214 Exclusion of civilians from battlefields, however, does not necessarily implicate the pure activities of the armed forces, and thus, prohibit congressional input. n215

Moreover, as Professor Henry Monaghan notes, textually the president is not the Commander-in-Chief of the people, "he is the Commander in Chief only of the armed forces and of the militia in active service." n216 Professor Monaghan further argues that Youngstown "represents the bedrock principle of the constitutional order: except perhaps when acting pursuant to some "specific" constitutional power, the President has no inherent power to invade private rights; the President not only cannot act contra legem, he or she must point to affirmative legislative authorization when so acting." n217

Thus, while the President has "specific" Commander-in-Chief constitutional power, this power does not extend to control of[*169] civilians, nor restriction of private rights absent affirmative legislative authorization. n218

Further support for this conclusion - that access to military operations by civilians does not implicate one of the president's core Commander-in-Chief powers - is Judge Sand's decision in Nation. Though he dismissed the claim, he did so on equitable grounds based on the remedies sought by the plaintiffs, not because the issue raised a political question. n219 In reaching the conclusion that the issue of press access did not raise a political question, Judge Sand noted that the Supreme Court declined to reach the merits of claims as implicating the Executive's constitutional Article II powers only in cases involving "direct challenges to the institutional functioning of the military in such areas as the relationship between personnel, discipline, and training." n220

A claim of press access to military operations, however, "is no challenge to this country's military establishment, 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." n221 Thus, congressional legislation in this area would not violate principles of separation of power between the Executive and the Congress. [*170]

C.
The Foreign Intelligence Surveillance Act
Protection of national security often conflicts with protection of individual liberties. Yet, it is inaccurate to assume that no intervening solution exists. In 1977, Congress confronted a similar situation as the one discussed in this Note when it held hearings on the issue of international surveillance. The passage of the Senate bill on the Foreign Intelligence Surveillance Act of 1977 n222 represented the culmination of a seven year effort by members of Congress and the administrations to bring national security electronic surveillance under legal standards similar to those of the Fourth Amendment. n223

In 1978, the Senate and House of Representatives ultimately agreed upon, and passed, the Foreign Intelligence Surveillance Act of 1978. n224 This act requires judicial authorization of electronic surveillance of foreign powers, based on specific findings. n225 The significance of this act, with respect to the issue of press restrictions and censorship during war, is Congress' reconciliation of the opposing needs. Congress recognized and accepted the national security need for electronic surveillance on an international level. Despite this need, however, Congress managed to bring such surveillance under a rule of law that requires judicial determination of the necessity of a wiretap in each case, in order to protect individuals from arbitrary and unreasonable government intrusion. n226 The statutorily required findings provide a framework within which the judges may review applications for warrants. n227

Most significant, however, was the creation by Congress of the Foreign Intelligence Surveillance Court. The creation of the court was a recognition by Congress of the need for a specialized group of judges experienced in foreign affairs and national security interests to[*171] review applications for warrants abroad. n228 The issue, however, of whether the judiciary should be involved in foreign intelligence surveillance was "hotly debated" in Congress. n229 As Senator Malcolm Wallop noted, however, "a Federal judge has lifetime tenure and could presumably develop an expertise in the field of foreign affairs if consistently [resorted] to for authorizations for foreign security wiretaps." n230 Thus, to paraphrase: a Federal judge could presumably become an expert in the field of foreign affairs and national security if consistently resorted to for authorization to censor press publication of potentially sensitive material. Absent this consistent exposure, however, an individual could not be an expert in the field of foreign affairs and national security.

D. Legislation to Promote Press Access and Coverage of Military Operations
The Foreign Intelligence Surveillance Court represents a potential framework for the creation of a court aimed at adjudicating the government's claims of national security as a basis for censoring the press. Initially, however, Congress should pass legislation recognizing the press' constitutional right of access to military operations. Such a declaration could act to shift the burden to the government to demonstrate a compelling national security risk in order to limit this access. Furthermore, Congress should statutorily enact the Sidle Panel recommendations, n231 thereby limiting the Defense Department's ability arbitrarily to impose restrictions upon the press. Such a legal framework would aid the courts in determining whether the government has sufficiently justified the use of press pools, whether selection criteria for pool accreditation is discriminato- [*172] ry, and whether the security guidelines and ground rules created by the Defense Department have unconstitutionally restricted the press' right of access and publication.

Upon passage of such legislation, Congress should further establish a court, similar to the Foreign Intelligence Surveillance Court, to review disputes between the press and military, as governed by the statute. The need for a specialized court in this field would be most acute during times of war, when national security interests are at their height. A judge with expertise and confidence in the field of national security would be able to resolve the conflicting government and press interests. n232

Furthermore, because pre-publication delay of information can render news obsolete, and therefore, amount to a prior restraint, adjudication of any claim must be immediate. n233 Under the system in place during the Persian Gulf war, a military review board existed to hear claims by members of the press; the review board, however, was controlled by the Defense Department, and thus, skewed against the press. A specialized court of independent judges, therefore, could provide the function in a more timely manner, while also providing news correspondents with a more balanced system of review.

VI. Conclusion
History demonstrates that the conflict, between the rights of the press to access and report news regarding overt military operations and the power of the Government to wage war effectively, is not one easily resolved. National security undoubtably represents a compelling governmental, and public, interest - an interest that will often demand restrictions upon the press. While the government may have the constitutional authority in times of war to restrict the press, the necessary limits of national security interests are unclear.

What is clear, however, is that the government presently possesses unfettered discretion to restrict press coverage. Lack of external review means that if the Executive restricts the press beyond the dictates of national security, such censorship can remain unchecked. Despite this consequence, the implications of defining an outer-limit on government authority to protect national security[*173] interests have left the courts reluctant to decide the issue. Moreover, the government's shift from censorship of the press through prior restraints to restrictions on access further dilute the constitutional rights owed the press and the public.

The United States' peacekeeping efforts in Bosnia have once again engaged the nation in military operations. Unlike the policy imposed during the Persian Gulf War, the government has decided not to impose restrictions on press access. n234 Left unresolved, however, is the future relationship between the press and the military; even if the present situation indicates an attempt to return to the cooperative relationship enjoyed prior to the Vietnam War, present policies provide no protection against future restrictions on press access to military operations. Absent congressional or judicial intervention, the government remains free to impose restrictions upon the press that extend beyond the limits of legitimate national security concerns, with no effective system of review.

FOOTNOTES:

n1. The U.S.-led peacekeeping mission in Bosnia was part of the Bosnia Peace Agreement reached in Dayton, Ohio in November 1995. Evan Thomas & John Barry, Shipping Out, Newsweek, Dec. 4, 1995, at 28, 31.

n2. See infra notes 89-105 and accompanying text.

n3. Hirabayashi v. United States, 320 U.S. 81, 93 (1943) (The power to wage war is the "power to wage war successfully.").

n4. See infra notes 13-41 and accompanying text for a discussion of the press' historical right of access to military operations.

n5. See infra notes 42-50 and accompanying text for a discussion of the government's shift in policy.

n6. New York Times, Co. v. United States, 403 U.S. 713, 723 (1971) (per curiam) (The "Pentagon Papers Case") (finding a prior restraint invalid because the government had failed to meet its burden of showing that publication of the Pentagon Papers would threaten national security).

n7. See infra notes 70-87 and accompanying text for a discussion of situations where the Supreme Court has held that there was a press right of access.

n8. Nation Magazine v. United States Dep't of Defense, 762 F. Supp. 1558 (S.D.N.Y. 1991). See also J.B. Pictures, Inc. v. United States Dep't of Defense, 927 F.2d 1257 (D.C. Cir. 1991) (unreported opinion) (plaintiffs seeking injunction against government restrictions of press' access to military bases). See infra notes 52-69 and accompanying text for discussion of the Nation case.

n9. In Nation, Judge Sand concluded that the injunctive relief sought - a lifting of government restrictions to access - was moot because the Persian Gulf War had ended, and that declaratory judgment was inappropriate in this case because the constitutional question was not narrowly presented. 762 F. Supp. at 1570, 1572.

n10. In Nation, Judge Sand held that the issue of the press' right of access to military operations was not moot, though the Gulf War had ended, because it fell under the category of "capable of repetition without review." 762 F. Supp. at 1570.

n11. Though New York Times generated nine separate opinions, with the Court ultimately invalidating the government's prior restraint on the press, the majority of the Court appeared to accept that under the president's Commander-in-Chief and Foreign Affairs powers - and with congressional approval - the prior restraint would have been valid had a threat to national security been clearly established. 403 U.S. 713 (1971).

n12. Nation, 762 F. Supp. at 1572.

n13. Frank Luther Mott, American Journalism, A History: 1690-1960, at 103-04 (1962).

n14. See id. at 99.

n15. See id. at 103.

n16. Id. (discussing the publication of seditious papers in 1765).

n17. See Jack A. Gottschalk, Consistent with Security: A History of American Military Press Censorship, 5 Comm. & L. 35, 36 (1983).

n18. See Phillip Knightley, The First Casualty - From the Crimea to Vietnam: The War Correspondent as Hero, Propagandist, and Myth Maker 20 (1975).

n19. See id. at 21 (indicating that the extensive coverage of the war was a direct result of the unlimited access granted to war correspondents).

n20. See Knightley, supra note 18, at 24. The practice of government censorship was adopted by both the U.S. and Confederate governments. Id. The Confederate press was more willing to abide by the government's propaganda line than the Northern press. Id. at 25. Overall, however, the majority of reporters saw their task as "the sustaining of both civilian and army morale." Id. at 22. The willingness by the press to follow the government censorship, more than the actual structured program, was what led to effective censoring of the press. The unlimited access available to the press and the "sporadic and disorganized" application of government censorship allowed for truly uncensored reporting, had the press been so inclined. Mott, supra note 13, at 329, 336.

n21. See Mott, supra note 13, at 337.

n22. See Mott, supra note 13, at 411. This increased freedom of the press was the result of less stringent state libel laws, as well as a decreased importance of the partisan editorial. Id. at 412, 508-09. Phillip Knightley referred to this era as "The Golden Age" for the press due to the rise of the popular press, the increased use of the telegraph and the ineffective introduction of organized censorship. Knightley, supra note 18, at 42.

n23. See Mott, supra note 13, at 533-37. During the Spanish-American War, the government attempted to censor the press, but implementation was rare, and press access to battlefields and other sites of military operations remained unlimited.

n24. See John E. Smith, From the Front Lines to the Front Page: Media Access to War in the Persian Gulf and Beyond, 26 Colum. J. L. & Soc. Probs. 291, 295 (1993).

n25. Id. at 295.

n26. Id. (discussing how the strict censorship regulations in place during World War I were not surprising given the narrow interpretation of the First Amendment during this period).

n27. See id. See also Schenck v. United States, 249 U.S. 47 (1919) (upholding criminal convictions under the Espionage Act for defendants' distribution of pamphlets opposing the draft); Abrahms v. United States, 250 U.S. 616 (1919) (upholding convictions under the Espionage Act for distributing leaflets supporting a general strike). The Espionage Act of 1917, which authorized criminal sanctions for publication of information that could undermine the government's war efforts, was constitutionally upheld under a newly formulated "clear and present danger" test. Schenck, 249 U.S. at 52 (Holmes, J.). The Court, however, held that there was a distinction between the Act's post-publication criminal sanctions, which had a deterrent effect on publication, and actual prior restraints on publication. Id. at 51-52.

n28. See Gottschalk, supra note 17, at 39.

n29. First War Powers Act, 55 Stat. 839 (Dec. 1941).

n30. See Gottschalk, supra note 17, at 40. Censorship of information during World War II was not fully voluntary because the procedures established in the Code of Wartime Practices, as released by the Office of Censorship, demanded that the press submit all material first to public relations, and then to censorship. This resulted in great delay, with news reports often reaching the United States only after official press releases. Not surprisingly, the press chaffed at these delays and restrictions. Id. at 42. However, General Eisenhower's view of "an active press as an aid to the American cause," and the resulting "easy access to the battle field in 1941-1945" granted to the press, helped advance the cooperative and voluntary submission to censorship. See Smith, supra note 26, at 296.

n31. See Smith, supra note 24, at 296.

n32. See Gottschalk, supra note 17, at 45.

n33. Id.

n34. Id. at 47.

n35. See Edwin Emery & Michael Emery, The Press and America: An Interpretive History of the Mass Media 611 (1984). The only "official restrictions by the Department of Defense during the Vietnam War were guidelines that limited dissemination of specific kinds of combat information that military officials concluded compromised the national security of [the U.S.]," Nation Magazine v. United States Dep't of Defense, 762 F.Supp. 1558, 1563 (S.D.N.Y. 1991), and voluntary ground rules that prevented the press from identifying casualties before the families had been notified. See Matthew J. Jacobs, Assessing the Constitutionality of Press Restrictions in the Persian Gulf War, 44 Stan. L. Rev. 675, 683-84 (1992).

n36. See Jacobs, supra note 35, at 684.

n37. See Knightley, supra note 18, at 382. Jack Gottschalk concluded that the government's decision not to censor during the Vietnam war was due to political and logistical considerations. These stemmed in part from the nature of war coverage during an era that allowed television footage to reach the U.S. within twenty-four hours. "Even if all combat film had been censored by the military, the war - which was being fought without a clear purpose or goal - would eventually have become a target of severe public criticism. Censorship would simply have delayed an inevitable reaction." Gottschalk, supra note 17, at 49. Furthermore, the military, unlike in World War II, did not control the movements of civilians, including all news correspondents, in South Vietnam. Thus, the "reporter was no longer individually subject to military jurisdiction". Id.

n38. See Knightley, supra note 18, at 382.
n39. See Jacobs, supra note 35, at 684.

n40. See Smith, supra note 24, at 298.

n41. See id.

n42. See Paul G. Cassell, Restrictions on Press Coverage of Military Operations: The Right of Access, Grenada, and "Off-the-Record Wars," 73 Geo. L.J. 931, 943 (1985).

n43. Id. at 948.

n44. Flynt v. Weinberger, 588 F. Supp. 57, 58 (D.D.C. 1984). The claims raised in Flynt were nearly identical to those raised seven years later in Nation. The court in Flynt, however, found the issue of a First Amendment right of access to military operations moot because by that time all military restrictions on access to Grenada had been lifted. The judge refused to find that the issue fell under the exception to the mootness doctrine as "capable of repetition yet evading review," an exception which first originated in Southern Pac. Terminal v. I.C.C., 219 U.S. 498, 514-15 (1911). In Nation, 762 F. Supp. at 1562, the court resolved the problem of mootness in favor of the press by holding that the issue did fall under this exception, but nonetheless refused to rule on the merits. For a full discussion of Nation, see infra Part II.B.

n45. Flynt, 588 F. Supp. at 58.

n46. The Sidle Panel report recommended that:

(1) The Pentagon conduct planning for news coverage at the same time as it does operational planning.

(2) If pooling of reporters is necessary to ensure early access to an operation, plans should be made for the largest possible pooling procedure to be in place for the minimum time possible.

(3) The Secretary of Defense should study whether to create a pre-established list of accredited correspondents in case of a military operation for which a pool is required.
(4) The basic tenet governing media access to military operations should be voluntary compliance by the media with security guidelines or ground rules established by the military.

(5) Public affairs planning for military operation should include sufficient equipment and qualified military personnel to help correspondents cover the operation.

(6) Communications facilities should be made available to the media as soon as feasible, but these communications must not interfere with combat and combat support operations.

(7) Intra- and inter-theater transportation should be made available to the media.

(8) Media-military understanding should be promoted by meetings and educational programs. (emphasis added).

Chairman of the Joint Chiefs of Staff Media Military Relations Panel, Final Report (Aug. 23, 1984) [hereinafter Sidle Report], cited in Jacobs, supra note 35, at 945. See also, Mark C. Rahdert, The First Amendment and Media Rights During Wartime: Some Thoughts After Operation Desert Storm, 36 Vill. L. Rev. 1513, 1549-50 n.113 (1991).

n47. See Jacobs, supra note 35, at 685.

n48. Id.

n49. Id. A subsequent Pentagon investigation revealed that Secretary of Defense Cheney deliberately delayed the press pool to prevent correspondents from reaching Panama City. See U.S. Dep't of Defense, Review of Panama Pool Deployment (Mar. 1990) [hereinafter Hoffman Report].

n50. See Jacobs, supra note 35, at 685.

n51. See generally Dilip Hiro, Desert Shield to Desert Storm: The Second Gulf War (1992); J.C. Aggarwal, Gulf Crisis: Pre-War and Post-War Scenario (1991), for a discussion of military involvement in the Persian Gulf.

n52. See Reporters Comm. for Freedom of the Press, The Bush Administration and the News Media 32-33 (1992), reprinted in Smith, supra note 24, at n.51.

n53. U.S. Dep't of Defense, Guidelines for News Media (Jan. 14, 1991), reprinted in Nation Magazine v. United States Dep't of Defense, 762 F. Supp. 1558, app. C (S.D.N.Y. 1991); U.S. Dep't of Defense, CENTCOM Pool Membership and Operating Procedures (Jan. 30, 1991) [hereinafter CENTCOM], reprinted in Nation, 762 F. Supp. at app. D. These guidelines provided for the creation of CENTCOM media pools for access to the "forward" areas of hostilities. Membership in the CENTCOM media pools was conditioned upon the agreement that media personnel pool their products and submit to "review before release to determine [whether] they contain sensitive information about military plans, capabilities, operations, or vulnerabilities ... that would jeopardize the outcome of an operation or the safety of the U.S. or coalition forces." Nation, 762 F. Supp. at 1577. This form of pre-publication review - ostensibly based on legitimate national security concerns - worked to censor unflattering and critical depictions of the American war efforts. Moreover, the review system often delayed reporting such that the information lost much of its newsworthiness. See Jacobs, supra note 35, at 687.

n54. Gannett Foundation, The Media at War: The Press and the Persian Gulf Conflict 20 (1991) [hereinafter Media at War].

n55. Jacobs, supra note 35, at 687.

n56. Id.

n57. Nation, 762 F. Supp. at 1560.

n58. See Nation, 762 F. Supp. 1558; J.B. Pictures, Inc. v. United States Dep't of Defense, 927 F.2d 1257 (D.C. Cir. 1991). While the focus of this Note is a First Amendment right of access to military operations, discussion necessarily requires some understanding of the presumption of invalidity of prior restraints, and the government burden to overcome this presumption. See infra notes 106-21 and accompanying text for a discussion of this issue. Though the system of pre-publication review did not officially act as a prior restraint because news organizations were free to publish information in opposition to the review board's recommendation, the mandatory pre-publication review did impose a time delay that often made the information obsolete. See Jacobs, supra note 35, at 687. Restricted access, however, proved to be a more effective means of censorship because the press was unable to even obtain much of the information surrounding the war efforts. Because restricting access can be a powerful method to restrict the dissemination of information, the issue of whether there is a press right of access to military operations raises separate and important First Amendment concerns, in addition to the use of prior restraints.
n59. Nation, 762 F. Supp. at 1560.

n60. Id. at 1567.

n61. Id. at 1566.

n62. Id. at 1567. While Judge Sand's holding that the issue does not present a political question provides a strong argument that congressional legislation of a press right of access would not violate separation of powers, it is possible that a higher court may rule that access to the battlefields does implicate one of the President's core Commander-in-Chief powers. In light of this Note's proposed legislation, the possibility of such a ruling necessitates an exploration of this issue. For such a discussion, see infra notes 206-21 and accompanying text.

n63. Id. at 1569. The judge in Nation determined that the issue of press First Amendment rights during military operations fell under the exception to the mootness doctrine because the challenged action was "too short in duration to be fully litigated" and "there was a "reasonable expectation' that the party bringing the action would be "subjected to the same action again,'" even if the future military guidelines were not identical. Id. at 1568. By resolving the issue of mootness, the judge accepted the argument rejected by the district court judge in Flynt v. Weinberger, 762 F.2d 134, 135 (D.C. Cir. 1985), vacating as moot, 588 F. Supp. 57 (D.D.C. 1984).

n64. 408 U.S. 665 (1972).

n65. Nation, 762 F. Supp. at 1572.

n66. Id. at 1570.

n67. Id. at 1575 (quoting Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 584 (1947)).

n68. In Nation, Judge Sand refused to rule on the merits of the claim because the injunctive relief sought was moot, and the constitutional claim was not narrowly presented. 762 F. Supp. at 1572. This Note, however, advances the argument that because the issue of a right of access to military operations implicates strong national security concerns, the courts are reluctant to balance the competing concerns and thus resolve the issue absent legislation. See infra notes 161-73 and accompanying text for discussion of this argument.

n69. See infra notes 106-21, 126-60 and accompanying text for a discussion of legitimate government interests that may restrict First Amendment rights.

n70. Sedition Act of 1798, 1 Stat. 596; Espionage Act of 1917, 40 Stat. 217.

n71. Matthew Jacobs, in his analysis of press censorship during the Persian Gulf War, equated the military's use of prepublication review to use of prior restraints because even though review was "voluntary," and release ultimately allowed if the press correspondent so insisted, the delay caused by the system of review "deprived stories of their news value," and resulted in the "equivalent of printing no story at all." Jacobs, supra note 35, at 695-98.

n72. For a discussion of the military's increased use of restricting access as a means of limiting the press' war coverage, see supra Part II of this Note.

n73. As Chief Justice Burger said in his dissent in New York Times Co. v. United States: "The First Amendment right itself is not an absolute, as Justice Holmes so long ago pointed out in his aphorism concerning the right to shout "fire' in a crowded theater if there was no fire." 403 U.S. 713, 749 (1971) (Burger, C.J., dissenting). Under the doctrine of prior restraints, however, the Court has indicated that such censorship represents the most serious infringement on First Amendment rights because it acts as an "immediate and irreversible sanction." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976). The Supreme Court, thus, adopted an extremely restrictive view of prior restraints in Near v. Minnesota ex rel. Olson, when it struck down a Minnesota statute that allowed for temporary injunctions against "lewd ... lascivious ... malicious, scandalous and defamatory" publications. 283 U.S. 697, 702 (1931). The Court held that prior restraints are presumptively unconstitutional, with a heavy burden on the government to justify such prepublication censorship. Id. at 713-16. Despite the apparent clarity of the doctrine, this clarity disappears when applied to press coverage of military operations. See infra notes 106-21 and accompanying text for a discussion of the use of prior restraints in the interest of national security.

n74. See Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931) (striking down a statute that allowed temporary injunctions against "lewd" and "lascivious" publications because the government had failed to show a compelling justification for prepublication censorship). But see Schenck v. United States, 249 U.S. 47 (1919) (upholding criminal convictions for seditious libel as a post-publication remedy, despite its deterrent effect on speech).

n75. See infra note 77 for a list of cases in which the Supreme Court has found a First Amendment right of access.

n76. Branzburg v. Hayes, 408 U.S. 665, 681 (1972) (holding, nonetheless, that requiring newsmen to appear and testify before a grand jury regarding confidential sources did not significantly impair the press' ability to gather news information).

n77. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 (1980) ("absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public"); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) (majority of the Court invalidated a Massachusetts statute which required the exclusion of the press and the general public from the courtroom during the testimony of a minor who had allegedly been the victim of a sex offense). See also Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (holding Richmond Newspapers applicable to voir dire examination of prospective jurors in a criminal trial). But see Gannett Co. v. DePasquale, 443 U.S. 368 (1979) (rejecting an attack on an order barring the public, including the press, from a pretrial hearing on suppression of evidence in a murder case); Houchins v. KQED, Inc., 438 U.S. 1, 16 (1978) (concluding that "[until] the political branches decree otherwise, [the press has] no right of special access to the [jail] different from or greater than that accorded the public generally.") (Burger, C.J.) (emphasis added). See also Saxbe v. Washington Post Co., 417 U.S. 843 (1974) (upholding a federal prohibition of press interviews of individually designated prisoners, and holding that the constitution does not impose upon the government "the affirmative duty to make available to journalists sources of information not available to members of the public generally ...."); Pell v. Procunier, 417 U.S. 817, 834 (1974) (upholding a California rule prohibiting press interviews with specific individual inmates).

n78. 448 U.S. 555 (1980).

n79. Id. at 581.

n80. Globe Newspapers v. Superior Court, 457 U.S. 596 (1982).

n81. Id. at 605.

n82. Id. at 606.

n83. Id. at 607.

n84. Id. at 605.

n85. Id. at 607-10.

n86. Conceivably, one could argue that the press' right of access to military operations is even more important than a right of access to criminal proceedings, and should, therefore, be measured by a lesser standard. This argument, however, would only satisfy the initial inquiry - the question of whether there exists a right of access to military operations. See Globe, 457 U.S. at 605-06. Given the government's argument that national security concerns represent a "compelling governmental interest," access to military operations could still be denied. See Globe, 457 U.S. at 607. See also infra notes 126-60 and accompanying text for a discussion of the argument that national security concerns represent a compelling governmental interest.

n87. Id. at 606-07.

n88. See supra Parts II.A-B for a discussion of the historical right of access to military operations enjoyed by the press beginning with the American Revolution and continuing up through the Vietnam War.

n89. See, e.g., Nation Magazine v. United States, 762 F. Supp. 1558 (S.D.N.Y 1991); Flynt v. Weinberger, 588 F. Supp. 57 (D.D.C. 1984).

n90. Based on the test in Globe, 457 U.S. at 605-07, the government need not advance a compelling governmental interest to deny access until the plaintiffs have established that a right of access exists.

n91. See supra notes 92 and accompanying text for a discussion of the government's denial of access to military operations in Grenada, Libya, and Panama, as well as the use of press pools and pre-publication review during the Persian Gulf War.

n92. See supra 13-41 and accompanying text for a discussion of the historical use of government censorship during war.

n93. See, e.g. New York Times, Co. v. United States, 403 U.S. 713 (1971).

n94. See infra notes 106-21 and accompanying text.

n95. Globe, 457 U.S. at 605.

n96. The third element of the test regarding a First Amendment right of access as defined in Globe, 457 U.S. at 607.

n97. See id. at 606 (defining the second element necessary to find a right of access).

n98. See infra note 125 for a discussion of why the issue of a right of access does not necessarily implicate the public forum doctrine.

n99. See, e.g., Branzburg v. Hayes, 408 U.S. 665, 681 (1972).

n100. Nation Magazine v. United States, 762 F. Supp. 1558, 1572 (S.D.N.Y. 1991) (citing New York Times, 403 U.S. at 728 (Stewart, J., concurring) ("Without an informed and free press, there ... [cannot] be an enlightened people.").

n101. Id. (emphasis added).

n102. Nation, 762 F. Supp. at 1572.
n103. The third part of the test established by the Court in Globe. 457 U.S. at 607.

n104. See infra notes 161-73 and accompanying text for a discussion of the courts' reluctance to rule on matters that implicate national security concerns.
n105. See infra note 171 and accompanying text.

n106. 249 U.S. 47, 52 (1919). Interestingly, however, in an opinion delivered the same year the Supreme Court said that the war power is subject to "applicable constitutional limitations". Hamilton v. Kentucky Distilleries & Warehouse, 251 U.S. 146, 156 (1919).

n107. Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931).

n108. See infra note 110.

n109. The primary contention between the military and the press is the severity of these limitations, and who is to "police them." See Media at War, supra note 54, at 8. See also Gottschalk, supra note 17, at 52 (arguing that "the media and the public must also be aware that our national interests may at some future time again require the use of media censorship "consistent with security' by military and civilian authorities.").

n110. The "national security" exception allows the government to prohibit publication of information which will cause "irreparable damage to our nation or people." New York Times, 403 U.S. at 730 (Stewart, J., concurring).

n111. See id. at 713, 717 (refusing to uphold the government's restraint on the publication of papers "revealing the workings of the government that led to the Vietnam War").

n112. Id. at 726-27 (Brennan, J., concurring).

n113. Id. at 717. The Court, with a vote of 6-3, held that the government had failed to meet its heavy burden of proof to justify prior restraint of these documents, despite its assertion of national security. This case, however, was far from clear, generating nine separate opinions.

n114. Id.

n115. See infra notes 118-21, 149-53 and accompanying text for a discussion of some of the views.

n116. Id. at 718 (Black, J., concurring).

n117. Id.

n118. Id. at 719 (Black, J., concurring).

n119. Id. at 728 (Stewart, J., concurring).

n120. Id. at 730 (Stewart, J., concurring).

n121. Justice Douglas, in his concurrence, viewed as relevant the fact that the Congress had not formally declared war. In his view, such an omission greatly limited the Executive's authority to wage war. While not deciding the issue in the context of a formally declared war, Justice Douglas implied that because "the power to wage war is "the power to wage war successfully,'" Id. at 722 (quoting Hirabayashi v. United States, 320 U.S. 81, 93 (1943)), had Congress declared war, the Government's assertion of national security interests might have prevailed.

n122. Jacobs, supra note 35, at 693. Presumably, the interests in logistics, surprise, and morale are implicated whenever the United States' government engages in military operations. These interests, however, may not be the only possible areas of concern that could justify censorship of the press. Nonetheless, if a right of access is established, the government would be required to advance some interest and demonstrate that the interest is compelling, and that the restrictions on access are narrowly tailored, to justify censorship of the press.

n123. The Supreme Court has explicitly held in the past that the government may prevent the disclosure of information, even if the government could not prevent the publication of that same information were it already in the possession of the press. Professor Mark Rahdert argues that the Court accepted this view in Snepp v. United States, 444 U.S. 507 (1980), when the Court upheld the power of the government to penalize a former CIA agent after he publicly disclosed classified information. Such information was not in the public domain, and the government had the right to prevent "access" to such information. Rahdert, supra note 46, at 1538. See also Florida Star v. B.J.F., 491 U.S. 524, 541 (1989) (holding that although the government may refuse to disclose a rape victim's identity, it may not subject the press to liability for publishing the name of a victim that was inadvertently released).

n124. See infra notes 206-21 and accompanying text.

n125. In Nation Magazine v. United States Dep't of Defense, Judge Sand endorsed the view that "the activities of the press [could be] subject to reasonable time, place and manner restrictions under the doctrine of a limited public forum," 762 F. Supp. 1558, 1573 (S.D.N.Y. 1991), imposing upon the government the "obligation to insure that "access not be denied arbitrarily or for less than compelling reasons.'" Id. (quoting Sherrill v. Knight, 569 F.2d 124, 129 (D.C. Cir. 1977)). In such a situation, a plaintiff, like The Nation Magazine, could argue against discriminatory pooling policies without litigating the issue of a constitutional right of access to military operations. Under this theory, the courts will be unlikely to find the use of pool systems and military escorts, which provide the press with some access, unconstitutional infringements of the press' First Amendment rights. The limited public forum doctrine, however, presumes that the government grants some access to military operations. The doctrine will not ensure an actual right of access, if the government decides not to grant any access. See supra Part II.C.1, discussing the total denial of access to the military operations in Grenada, Libya, and Panama. See also Greer v. Spock, 424 U.S. 828 (1976) (where the Court upheld a ban on access to military bases, under the public forum doctrine, because as applied the ban was evenhanded and non-discriminatory). By contrast, a right of access to military operations, found independent of the public forum doctrine, could ensure against total denial of access by the government.

n126. See supra notes 106-21 and accompanying text.

n127. The Court held in Hamilton v. Kentucky Distilleries and Warehouse that war powers are still subject to "applicable constitutional limitations." 251 U.S. 146, 156 (1919). As Professor Henkin expressed it, "nothing in the Constitution suggests that the rights of individuals in respect of Foreign Affairs are different from what they are in relation to other exercises of government power." Louis Henkin, Foreign Affairs, in 2 Encyclopedia of the American Constitution 747, 754 (Leonard W. Levy et al. eds., 1987).

n128. See, e.g., Henkin, supra note 127, at 754.

n129. Whether First Amendment rights apply in the context of covert, as opposed to overt, military operations is beyond the scope of this Note. While both types of operations implicate national security concerns, covert operations, by their very nature, demand a heightened sensitivity to the issue of news coverage.

n130. Such action would fall under Justice Jackson's category one, in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, where the President's power is at a zenith when exercised in conjunction with Legislative authority. 343 U.S. 579, 635-36 (1952) (Jackson, J., concurring).

n131. Frank Luther Mott, Jefferson and the Press 8 (1943).

n132. Such is the fear expressed by Erwin Knoll. Erwin Knoll, National Security: The Ultimate Threat to the First Amendment, 66 Minn. L. Rev. 161 (1981).

n133. See Mott, supra note 131, at 5 (quoting a passage of a letter from Thomas Jefferson to Edward Carrington).

n134. Thomas Jefferson suggested that the First Amendment read: "The people shall not be deprived of their right to speak, to write, or otherwise to publish anything but false facts affecting injuriously the life, liberty, or reputation of others, or affecting the peace of the confederacy with other nations." (emphasis added). See Id. It is unclear whether the term "false facts" modifies all the subsequent provisions in this draft including "peace of the confederacy with other nations," despite the fact that this last provision is a separate clause. Nonetheless, even accepting this version of the semantics, this draft expresses the view that national security may justify limitations of free press.
n135. 299 U.S. 304 (1936).

n136. Id. at 319.

n137. As the Court stated in Curtiss-Wright, "... the very delicate, plenary and exclusive power of the President as the sole organ of the Federal government in the field of international relations - a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution." (emphasis added). Id. at 320.

n138. 343 U.S. 579 (1952).

n139. Id. at 587-88.

n140. Id. at 602 (Frankfurter, J., concurring); id. at 639 (Jackson, J., concurring).

n141. Congress "spoke" by deliberately omitting a provision in the Taft-Hartley Act that would have granted the President power to seize the steel mills in "cases of emergency." Id. at 587.

n142. "The power of Congress to adopt such public policies as these proclaimed by the order is beyond question." Id. at 588.

n143. The First Amendment reads as a general prohibition, stating that, "Congress shall make no law ... abridging the freedom of speech, or of the press," U.S. Const. amend. I, with no explicit exception.

n144. Hirabayashi v. United States, 320 U.S. 81, 93 (1943).

n145. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 602 (Frankfurt, J., concurring); id. at 645 (Jackson, J., concurring).

n146. See supra notes 106-21 and accompanying text for a discussion of the Schenck and New York Times cases.

n147. See supra note 53 for a discussion of the press restrictions imposed by the Department of Defense during the Gulf War.

n148. See supra notes 70-87 and accompanying text for a discussion about the initial burden on the press to demonstrate a First Amendment right of access.

n149. New York Times, Co. v. United States, 403 U.S. 713, 728-30 (1971) (Stewart, J., concurring).

n150. Id. at 728 (Stewart, J., concurring).

n151. This argument presumes a role for Congress in the area of access to military operations. See infra notes 206-21 and accompanying text for a discussion of whether access to military operations is textually committed to the President under his Commander-in-Chief power.

n152. New York Times, 403 U.S. at 732 (White, J., concurring). Justice White argued that although the Espionage Act of 1917 (upheld in Schenck v. United States, 249 U.S. 47 (1919)), authorized criminal penalties for publication of information in violation of the enumerated restrictions in the Act, it did not authorize actual restraint on publication. Id. at 732. When Congress passed the act, however, it expressly eliminated "from the bill a provision that would have given the President broad powers in time of war to proscribe,...the publication of various categories of information related to the national defense." Id. at 734 (emphasis added). Thus, Congress refused to grant the President unfettered discretion in determining what information could be penalized.

n153. Id. at 740.

n154. See Near, 283 U.S. at 702.

n155. See supra notes 106-21 and accompanying text.

n156. See supra notes 122-25 and accompanying text.

n157. See, for example, supra note 53 and accompanying text for a discussion of the restrictions imposed on the press during the Gulf War. But see supra note 1 and accompanying text noting the government's decision to not impose restrictions on press access to military operations in Bosnia. Both policies, however, represent unilateral executive decisions implemented through the Department of Defense.

n158. For a discussion of the history of press censorship in times of war, see supra Part II. See also Knoll, supra note 132; Fred W. Friendly, When War Comes, Whither the First Amendment?, 33 Ariz. L. Rev. 273 (1991).

n159. Nation Magazine v. United States, 762 F. Supp. 1558, 1572 (S.D.N.Y. 1991).

n160. Arthur M. Schlesinger, Jr., The Imperial Presidency, ix (1973) (quoting a statement of James Madison).

n161. For a general discussion of the Nation case, see supra part II.B.

n162. Nation, 762 F. Supp. at 1575.

n163. See generally Media at War, supra note 54; Note, 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 (1992); Smith, supra note 24.

n164. See supra Part II for a discussion of the history of press access to military operations. See also Globe Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S. 596, 605-06 (1982), for a discussion of the criteria necessary to find a First Amendment right of access.

n165. Globe, 457 U.S. at 606.

n166. Nation, 762 F. Supp. at 1575. Professor Koh states that "even when the courts have not relied on nonjusticiability doctrines tied to the nature, ripeness, or mootness of the question presented, they have invoked the identity of the plaintiff, the defendant, the cause of action, and the requested relief as grounds for dismissing the case." Harold Hongju Koh, The National Security Constitution: Sharing Power after the Iran-Contra Affair 147 (1990) (emphasis added).

n167. In Nation, the district judge stated that "prudence dictates that we leave the definition of the exact parameters of press access to military operations abroad for a later date ...." 762 F. Supp. at 1572.

n168. Flynt v. Weinberger, 588 F. Supp. 57, 60 (D.D.C. 1984).

n169. Marbury v. Madison, 5 U.S. 137, 164-66 (1803).

n170. New York Times, 403 U.S. at 763 (Blackmun, J., dissenting).

n171. See Koh, supra note 166. Prof. Koh states that "even when the courts have not relied on nonjusticiability doctrines tied to the nature, ripeness, or mootness of the question presented, they have invoked the identity of the plaintiff, the defendant, the cause of action, and the requested relief as grounds for dismissing the case." (emphasis added). Id. at 147.

n172. See, e.g., United States v. Progressive, Inc., 467 F. Supp. 990 (W.D. Wis. 1979), appeal dismissed, 610 F.2d 819 (7th Cir. 1979) (where the court, faced with the increased risks and complex issues of atomic energy, deferred to the government's argument for the need to restrain publication of information about how to make an atomic bomb, despite evidence that the information was already in the public domain).

n173. In New York Times, where the burden rested on the government to demonstrate a compelling justification for the prior restraint of the press, a majority of the Court could not say with certainty that the interests advanced by the government raised legitimate national security concerns. See supra notes 113-21, 149-53. Moreover, the information sought to be published regarded events that had already occurred. With respect to a not yet established right of access, however, the presumption is de facto reversed. See supra notes 70-87 and accompanying text. A Court faced with claim of injunctive relief by members of the press denied access to an on-going military operation will be hesitant to find that the national security concerns advanced by the government are not compelling. Despite the fact that the government's need to demonstrate a compelling governmental interest only arises after the press has clearly demonstrated a right of access under the test set out in Globe Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S. 596, 605-07 (1982), the underlying national security concerns may prevent the courts from ever reaching the merits of a right of access to military operations claim.

n174. See, e.g., Flynt v. Weinberger, 588 F. Supp. 57 (D.D.C. 1984) (dismissing the plaintiff's claim of a right of access to military operations, upon a finding that the issue was moot); Snepp v. United States, 444 U.S. 507 (1980) (upholding the power of the government to penalize a former agent of the CIA for publicly disclosing classified information); Hirabayashi v. United States, 320 U.S. 81, 93 (1943) (upholding the exclusion of Japanese-Americans from the West Coast as a constitutional exercise of the Executive and Legislature's combined War Powers, and holding that "it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs."); Chicago & Southern Airlines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948) (Foreign affairs is a realm in which the Court has recognized that "it would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the executive taken on information properly held secret."); Alfred Dunhill of London v. the Republic of Cuba, 425 U.S. 682, 699 (1976) ("Courts should not [assume an antagonistic jurisdiction] as to embarrass the executive arm in its conduct of foreign affairs.").

n175. See, e.g., In re Yamashita, 327 U.S. 1 (1946) (upholding the jurisdiction and authority of a military commission to convict and sentence a prisoner of war for a violation of the law of war).

n176. This theory gains support from Justice Jackson's widely accepted concurrence in Youngstown Sheet & Tube Co. v. Sawyer, where, despite finding President Truman's steel mill seizure unconstitutional, he stated that "we should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander-in-Chief. I should indulge the widest latitude to interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society." 343 U.S. 579, 645 (1952) (Jackson, J., concurring).

n177. While the district court in Nation Magazine v. United State Dep't of Defense, 762 F. Supp. 1558 (S.D.N.Y. 1991), found the issue of press access justiciable, the appellate courts could determine that the issue of a right of access to military operations, though implicating individual First Amendment rights, raises a political question because the issue in the context of war (1) involves resolution of questions committed to a coordinate branch of government - the Executive; (2) demands that the court move beyond areas of judicial expertise in evaluating national security concerns (3) raises prudential considerations that counsel against judicial intervention. See Baker v. Carr, 369 U.S. 186, 211 (1962). See also infra notes 206-21 and accompanying text for a discussion of why access to a battlefield does not fall within one of the President's core Commander-in-Chief powers, thus, implicating no separation of powers concerns with respect to congressional legislation.

n178. Jacobs, supra note 35, at 725.

n179. Heins A. Linde, Courts and Censorship, 66 Minn. L. Rev. 171, 200 (1981).

n180. Id.

n181. See supra notes 106-60 and accompanying text for a discussion of national security and its impact on First Amendment rights.

n182. In the suits filed following the Persian Gulf war - Nation Magazine v. United States Dep't of Defense, 762 F. Supp. 1558 (S.D.N.Y. 1991), and J.B. Pictures, Inc. v. United States Dep't of Defense, 927 F.2d 1257 (D.C. Cir. 1991) - and in the suit filed after Grenada - Flynt v. Weinberger, 588 F. Supp. 57 (D.D.C. 1984) - no major media organizations were involved. See Media at War, supra note 54, at 20-21. Arguably, the larger media organizations were less disadvantaged by the military press pools, and less often denied access. Nonetheless, all the media organizations suffer when the military imposes total blackouts, or delays release of news stories through prepublication review.

n183. For a discussion of the history of press restrictions during war, see supra Part II.

n184. See supra note 182.

n185. See supra note 77.

n186. See supra Part III for discussion on a right of access to military operations.

n187. Jacobs, supra note 35, at 725.

n188. See supra note 125 discussing the government's right to impose "time, place, and manner" restrictions to a right of access.

n189. See, e.g., Smith, supra note 24, at 335.

n190. See supra notes 42-69 and accompanying text for a discussion of government censorship during these military operations.

n191. In Nation Magazine v. United States Dep't of Defense, the plaintiffs, Nation Magazine and Agence-Presse-France, raised a claim that the press pooling policy imposed by the government discriminated against smaller, less established press organizations. 762 F. Supp. 1558, 1567 (S.D.N.Y. 1991). Under the CENTCOM operating procedures, preference during the Gulf War was given to "media that principally serve the American public and that have a long-term presence covering Department of Defense military operations." CENTCOM, supra note 53, at 8-10.

n192. Civil Liberties and the National Security State, 1983: Hearings on H.R. 384 Before the Subcomm. on Courts, Civil Liberties and the Admin. of Justice of the Comm. on the Judiciary, 98th Cong. (1983).

n193. H.R. Res. 384, 98th Cong. (1983).

n194. See supra note 46 (summarizing the recommendations put forth by the Sidle Panel).

n195. See supra notes 48-57 and accompanying text.

n196. Press Freedom and the Gulf War, 137 Cong. Rec. H760-02 (daily ed. Jan. 29, 1991); Thoughts Regarding the Issue of Journalistic Restrictions in the Persian Gulf War, 137 Cong. Rec. H805-01 (daily ed. Jan. 30, 1991); Further Reflections on the Persian Gulf, 137 Cong. Rec. H1956-01 (daily ed. March 21, 1991).

n197. 137 Cong. Rec. H760-02 (statement of Rep. Owens) (reviewing the change in the open policy during the Gulf war to restrict press access for interviews "to those whom the Defense Department public relations officials designate").

n198. Id. at H763 (statement of Rep. Edwards).

n199. Id. at H764 (statement of Rep. Edwards).

n200. Id.

n201. Id. at H768 (statement of Rep. Stokes).

n202. Nation Magazine v. United States Dep't of Defense, 762 F. Supp. 1558, 1572 (S.D.N.Y. 1991).

n203. The demands of free speech in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interests, within the confines of the judicial process. ... Full responsibility for the choice [however] cannot be given to the courts. ... History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic, and social pressures. Primary responsibility for adjusting the interests which compete in the situation before us of necessity belongs to Congress. Dennis v. United States, 341 U.S. 494, 524-25 (1951) (Frankfurter, J., concurring) (emphasis added).

n204. 137 Cong. Rec. H760-02, H768 (statement of Rep. Owens).

n205. Id. (Rep. Owens discussing H.R. Con. Res. 38, 102nd Cong. (1991)).

n206. "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the Several States, when called into the actual service of the United States ...." U.S. Const. art. II, 2.
n207. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

n208. Nation Magazine v. United States Dep't of Defense, 762 F. Supp. 1558, 1566 (S.D.N.Y. 1991). If the issue of a press right of access were to implicate military activities, "separation of powers principles [would] assign [them] to the legislative and executive branches of the government." Id. (emphasis added).
n209. Congress has the authority:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies,... ; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions. U.S. Const. art. I, 8, cls. 11-15.

n210. John Hart Ely, War and Responsibility 5 (1993).

n211. Id. (emphasis added).

n212. But see Dellums v. Bush, 752 F. Supp. 1141, 1145 (1990) (where the court dismissed the challenge against the president on ripeness grounds, but in dicta opined that congressional authorization would be needed before the president could engage the country in military hostilities). See also Bob Woodward, The Commanders 356-57 (1991).

n213. This argument presumes that the President's Commander-in-Chief powers to control the armed forces does not alter even when Congress has not authorized military involvement.

n214. See Ely, supra note 210, at 25.

n215. See Korematsu v. United States, 323 U.S. 214 (1944). While the actual holding of this case - the exclusion of individuals of Japanese heritage during the Second World War - has rightly been discredited as a appalling act by the United States government, the source of authority the Court relied upon to uphold the exclusion remains valid. As the Court held, it is "in accordance with congressional authority to the military to say who should, and who should not, remain in the threatened [West Coast War] area." Id. at 221 (emphasis added).

n216. Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1, 86 (1993). See also U.S. Const. art. II., 2, cl. 1.

n217. Id. at 10. See also supra notes 138-42 and accompanying text for a discussion of Youngstown.

n218. See, e.g., Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 122 (1867) (rejecting the government's argument that the military tribunal's jurisdiction was complete under the "laws and usages of war," and holding that "one of the plainest constitutional provisions was ... infringed when Milligan was tried by a court not ordained and established by Congress, and not composed of judges appointed during good behavior").

n219. Nation Magazine v. United States Dep't of Defense, 762 F. Supp. 1558, 1568 (S.D.N.Y. 1991). See also Flynt v. Weinberger, 588 F. Supp. 57, 59 (D.D.C. 1984) (holding that while the issue of a right of access to military operations was moot, and not within the "capable of repetition, yet evading review" exception, it did not raise a non-justiciable political question).

n220. Id. at 1567 (citing Chappel v. Wallace, 462 U.S. 296, 300 (1983) (holding that the political question doctrine barred Article III courts from entertaining a suit to recover damages by enlisted military personnel against a superior officer); Parker v. Levy, 417 U.S. 733, 749-56 (1974) (political question doctrine barred court consideration of legality of more encompassing regulations defining criminal conduct and restricting First Amendment rights in the military); Gilligan v. Morgan, 413 U.S. 1, 5-12 (1973) (political question doctrine barred review where granting remedy would require review and continuing surveillance of training of National Guard); Orloff v. Willoughby, 354 U.S. 83, 90 (1953) (commissioning of officers in the Army is a matter of discretion within the province of the President over which the courts have no control)).

n221. Nation, 762 F. Supp. at 1567.

n222. S. 1566, 95th Cong. (1977).

n223. Foreign Intelligence Surveillance Act of 1977: Hearings on S. 1566 before Subcom. on Criminal Laws and Procedures of the Comm. on the Judiciary (Senator Kennedy speaking). S. 1566 was a proposed bill to amend title 18 of the United States Code.

n224. Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1801-1811 [hereinafter FISA].

n225. FISA 1804-1805. The Act, however, allowed for electronic surveillance up to one year in the absence of a court order, provided the Attorney General certified under oath the necessity of such surveillance. 50 U.S.C. 1802(a)(1).

n226. See id.

n227. FISA 1804(a).

n228. Section 1803(a) of FISA designates the appointment of seven federal circuit judges to comprise the district level judges for the Foreign Intelligence Surveillance Court [FISC]. This court has jurisdiction to hear applications for and grant orders approving electronic surveillance. Section 1803(b) further designates the appointment of three judges to comprise a court of review for the denial of any applications made under FISA. The Supreme Court of the United States remains the final arbiter under the writ of certiorari.

n229. Foreign Intelligence Surveillance Act of 1978: Hearings on S. 1566 Before the Senate Subcomm. on Intelligence and the Rights of Americans of the Senate Select Comm. on Intelligence, 95th Cong. 288 (1978) [hereinafter Hearing on S. 1566].

n230. Id. at 93 (Senator Wallop quoting Zweibon v. Mitchell, 516 F.2d 594, 644 n.138 (D.C. Cir. 1975)).

n231. For a summary of the Sidle Panel recommendations, see supra note 46. While these recommendations were the result of joint efforts by members of the press and the military, they proved non-binding upon the military in subsequent military operations. See supra notes 48-57 and accompanying text for a discussion of press censorship during military operations in Libya, Panama, and the Persian Gulf War.

n232. See supra note 230 and accompanying text.

n233. See supra note 53 and accompanying text.

n234. See supra note 1.