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Another Reason For Donald Rumsfeld to Resign:
Nondisclosure of Crucial Information Harms the First Amendment

Friday, May. 14, 2004

As photos and accounts of abuse of Iraqi prisoners have dominated headlines, a subsidiary issue has also arisen -- one with important implications for First Amendment values.

Apparently, much of this information was available in January. Yet we are hearing about it only in May -- and even now, the military has reportedly attempted to further the delay of its release. (For all we know, had this information not leaked to the press, we would still have been ignorant of it during November's election.)

That's not just bad policy or bad public relations on the part of the Defense Department -- it's a threat to the First Amendment. For while security reasons allow the military to enjoy a great deal of deference from courts in the First Amendment arena, it is still the military's responsibility to honor the Amendment.

For without courts to police them, members of the military -- and especially the Secretary of Defense -- must constantly weigh national security concerns against First Amendment values. These values include, specifically, an emphasis on fostering a fully informed "marketplace of ideas," in which the press is free to investigate, and the public has timely access to important information.

In the withholding of photographs regarding the abuse of Iraqi prisoners, it's apparent that First Amendment values were entirely neglected. Indeed, press investigation -- as well as public information access -- was actively impeded with a deceptive press release, and a later request that the information not be aired.

This disregard of the First Amendment offers another reason that Rumsfeld should resign.

A Deceptive Press Release Effectively Stymies Investigation

Reportedly, Secretary of Defense Donald Rumsfeld was aware of the prisoner abuse reports as early as January of this year. But the January 16 press release on the issue that he has cited, which mentioned "an investigation of 'reported incidents of detainee abuse,'" failed to at all reflect the gravity and specifics of the incidents.

In itself, this cryptic mention, devoid of detail, interfered with First Amendment values -- in that it completely failed to sound the alarm to the press that intense coverage was appropriate and necessary. When the military has control of the relevant information, the press is forced (absent leaks) to depend on the military's judgment as to whether the information is significant.

Yet the sentence quoted above could easily have referred to a few minor, isolated incidents of line-crossing, as opposed to the terrible abuses that have now been revealed. And those who read the press release may well have assumed that it did indeed refer to only a few incidents; otherwise, wouldn't the press release have given the matter greater attention?

Obviously, independent investigation by the press was still possible -- but less and less so in an increasingly dangerous Iraq. And granted, seasoned members of the press ought to be able to read between the lines -- to see, in some cases, when the military is downplaying information that is actually very important. ( Moreover, the Red Cross can also be faulted for nondisclosure; it says it held onto the information that it had because it felt that progress was being made.)

But these possibilities still do not take away the military's responsibility to issue accurate, complete statements to the press.

The Government Itself Should Have Released the Photos and Disclosed the Abuse

More recently, General Richard E. Myers -- presumably with Secretary Rumsfeld's blessing -- reportedly tried to convinced "60 Minutes II" not to disclose the photos of abuse, on the ground that disclosure would put troops in danger. (Now, again, the disclosure of more photos -- the ones Congress, but not the public, has now seen -- is being delayed for the same reason.)

Doubtless, these photos have greatly angered Iraqis against our troops. But the events the photos document were bound to be disclosed sometime - given that some prisoners have been released from Abu Ghraib prison, or at least transferred elsewhere, and given that photos of the abuses were taken.

Given that disclosure was inevitable, an intentional release by the government of the photos seems far preferable to the leak that actually occurred. After all, the cover-up of the photos, too, has enraged the Arab world -- perhaps just as much as the photos themselves. And now, we cannot avail ourselves of what would have been the best way to repair credibility -- the government's own, direct release of the photos, or at least its endorsement of CBS's release, with an accompanying apology.

Now, with our credibility irrevocably damaged, our troops are truly in danger. The government should have led, not followed, the press on this matter. Yet instead, it actually tried to impede the press by citing security-based justifications that, in retrospect, do not seem supportable.

Overuse of National Security Justifications Impedes the Freedom of the Press

When national security justifications are used to justify the nondisclosure of basic information, First Amendment values can be in danger. Free speech is worthless if you don't know what all the facts are -- or if you don't even know that there is something important you should be talking about in the first place.

Yet, throughout his tenure as Secretary of Defense, Rumsfeld has appeared to overuse national security justifications as a reason not to answer press questions. (And I say "appeared" only because of the paradox of trying to report on nondisclosure: One can only have strong suspicions.) In so doing, he has seemingly forgotten the First Amendment ideals of an informed press, and a public that is free to investigate, debate -- and in November, cast informed votes.

Rumsfeld has always treated reporters like a nuisance -- not a valuable part of our democracy. (Though ironically, he worries far less about national security when he expects coverage to be favorable -- for instance, when "embedded" reporters were allowed to cover the Iraq War.)

But when war is waged in America's name, we have a right to know the facts. And it is the media that can communicate them to us. They, therefore, deserve the respect that Rumsfeld has repeatedly denied them, and they -- and we -- deserve the maximum access to information possible.

No Legal Remedy for Overuse of National Security Justifications

The overuse of national security justifications, and similar rationales is a legal issue -- but one for which there is typically no legal remedy.

Courts typically grant the military broad deference when it comes to First Amendment issues. And while the Freedom of Information Act (FOIA) allows access to many government documents, it contains a national security exception that can be invoked broadly.

Moreover, when FOIA's "national security" exception is invoked, the party seeking documents must go to court to try to convince the judge to release the documents anyway. The judge then can look at the documents "in camera" -- that is, secretly. But as the plaintiff's attorney is not granted access to the documents, and thus is handicapped in the ability to argue why the national security exception should not apply, it is not surprising courts virtually always deny release of the documents.

In addition, as Anita Ramasastry has discussed in an earlier column, the FISA court, which deals with even more sensitive material, operates with even greater secrecy -- and offers even less chance that a judge will overrule a decision not to disclose information.

The result of this kind of dynamic is that First Amendment harms can occur for which there is no judicial remedy. Inevitably, material is wrongfully kept secret even when there is no legitimate national security reason..

Conscientious Officials Are Our Only First Amendment Hope

The only solution? Unless we overhaul our secrecy laws -- which is unlikely, especially in the current "war on terrorism" climate -- the officials who make the disclosure decisions must be conscientious, and keep the First Amendment rights of the press and public in mind.

Without meaningful court review, these officials often are the only First Amendment gatekeepers we have. That means that our Secretary of Defense is not only a military strategist, but also a guardian of constitutional rights, and that includes the First Amendment.

Donald Rumsfeld has proved himself to be unworthy of this task. For this reason -- as well as because of the horrific abuse that happened under his watch -- he should resign.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes MP3 and text downloads of the novel's first chapter.

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