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Thursday, Oct. 18, 2001

Even if the government's requests should not cause us intense concern, should we be concerned, at least, about the reasons the government is citing for its requests that the networks not show bin Laden videos?

The "coded messages" rationale for declining to broadcast the videos is potentially a very serious one. For U.S. networks to be used as a conduit to convey messages to bin Laden supporters to conduct another terrorist attack is terrible to contemplate. But the "coded messages" worry is unlikely to be addressed by cautioning the networks to be careful.

Given that the messages are claimed to be coded, it would seem that network editing is unlikely to pick them out. Moreover, some networks are claiming to use a test of newsworthiness, not of potential danger, to cull out which sections of video they will show. But the newsworthy messages — those that do not simply repeat prior bin Laden rhetoric — may be particularly likely to be coded messages, putting the editing guideline in direct tension with the government's goal.

Does this mean that the videos simply should not be shown at all? That probably won't work either. Absent a blanket censorship order, with which even foreign-based websites would have to comply, the text of bin Laden's messages will end up appearing on the Internet.

In turn, that text will very likely be accessible to al-Qaeda members. We already know that at least some members of al-Qaeda have frequented Internet cafes and exchanged encrypted Internet messages. They also, of course, have a strong incentive to locate any message from bin Laden, wherever it appears on the Internet.

What the "Coded Messages" Rationale Accomplishes

Despite these considerations, I am hesitant to express skepticism of the government's "coded messages" rationale. There is obviously much that I don't know that might change my mind if I knew it, and the stakes in terms of human life are so high.

Still, given that the war on terrorism has so far been a war of secrecy, it seems necessary to express an opinion based on limited information — since limited information is all we are likely to have. Secrecy should not silence us, but it should make us careful that we do not always know whereof we speak.

It is worthwhile to note that while the "coded messages" justification seems unlikely to accomplish the goal of disrupting communication between bin Laden and U.S. al Qaeda cells, there is a goal it is almost certain to accomplish. That goal is to provide a permanent method of informal government censorship of network broadcasts of bin Laden's messages — censorship that will only be intensified should there be further attacks.

Now that the "coded messages" justification has been invoked once, it can be re-invoked again and again by the government. After all, any bin Laden video might potentially contain coded messages, and since they are coded, we may never really know one way or the other if they were ever there.

Moreover, if terrorist attacks occur again on our soil, the government can now raise the suspicion that the attacks were prompted by coded messages in the videos already broadcast. That would, in turn, put further pressure on the networks to decline to broadcast future videos — or else be blamed for any future terrorism that occurs.

Before we allow this progression of events to happen, we should think seriously about the cost of failing to allow the public to be fully informed about its worst — and most directly threatening — enemy, Osama bin Laden.

Julie Hilden, a FindLaw columnist and a graduate of Yale Law School, is a freelance writer and the author of the memoir The Bad Daughter. She practiced First Amendment law as an associate at the Washington, D.C. firm of Williams & Connolly from 1996-99.

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