In the days prior to the commencement of the war against Iraq, U.S. officials announced the rules for embedding journalists with the American troops during the attacks. The measure represented a significant departure from the more restricted access to all U.S. military actions since the Vietnam War. However, there is growing concern for the safety of the journalists that are covering the war in Baghdad. Several reports have denounced that the Iraqi government has forced journalists to stay at the Al-Rashid hotel to utilize the journalists as human shields, and all journalists for the television networks CNN and Fox News have been expelled from Baghdad.
The effect of the war has caused American officials to tighten measures intended to secure secrecy of government information through the new Homeland Security Law whereas media groups have advocated for more access to the point of promoting a bill called Restoration of Freedom of Information Act. The government's electronic surveillance of e-mail of individuals has also been a concern for defenders of privacy and of due process for the growing number of emergency searches.
Regarding homeland security, two American television networks, concerned that a war with Iraq was imminent, removed their reporters from Baghdad in early March. NBC News decided to pull its six-member television crew after comments from the Bush administration indicating that a military conflict could begin within days, network spokeswoman Allison Gollust told The New York Times.
There were 450 foreign journalists in Baghdad and it seemed that the number has dwindled to 300. The Bush administration advised journalists to leave Baghdad, but NBC and ABC would be the first major television networks to remove staff voluntarily from the Iraqi capital. The Fox News Channel was expelled from the city last month by the Iraqi government. NBC would likely still be able to get coverage from Baghdad from Peter Arnett, the former CNN correspondent who now reports for MSNBC, NBC's sister cable network. CNNs four journalists were expelled March 21.
In the week of March 12th, The Washington Post reported that "The embedding program follows media complaints that reporters were kept too far from the warfront in recent military actions. Pentagon officials, in their guidance paper, said the effort is being made because we need to tell the factual story -- good or bad -- before others seed the media with disinformation and distortions, as they most certainly will continue to do,'" the Post reports.
Editor & Publisher's Joe Strupp reports that few, if any, editors have complained about embedding rules for war correspondents that allow for "security review" and flagging of "sensitive" information. But many editors say they will watch how the rules are enforced. "They are written in such a way that they could help people report the story or be used to hurt the reporting," said
Colin McMahon, foreign editor of the Chicago Tribune, which has five embedded reporters out of 15 overall in the region.
Meanwhile, Newsweek senior editor Jonathan Alter says that most of the ground rules that embedded reporters must seem reasonable, like not carrying a sidearm, not using flash photography at night and not reporting the unit's exact position. Unlike the Gulf War in 1991, he says, this time there will be no censorship of stories and TV scripts. The truth is, it's just not practical anymore. Wireless communications has killed military censorship for good.
Washington Post ombudsman Michael Getler says the real test of the Pentagon's plan to embed more than 500 journalists with troops will come in combat if things go wrong. "On paper," Getler says, "the new guidance seems to be a step forward -- in terms of access and timely transmission of reporting -- from the restrictive policies and tactics the Pentagon has employed in every conflict since Vietnam.
Despite a new attitude from Attorney General John Ashcroft toward access, in March a government-wide audit of federal responses to Freedom of Information Act requests showed most agencies (17 out of 33) just forwarded copies of the requested information to FOI Act officers without changing regulations, guidance or training materials; and one summarized the prevailing feeling as "more thunder than lightning." The Ashcroft memorandum replaced a Janet Reno FOI policy which called for release of information, even if an exemption might fit, unless foreseeable harm would occur. Ashcroft assured agencies that the Justice department would defend almost any "solid basis" for denial.
Worried about leaks, the military is starting to clamp down on e-mail communications between stationed troops and their loved ones at home. E-mail access, generally open and greatly appreciated by service men and women, will likely be restricted and/or monitored, according to a New York Times report. Military leaders are particularly concerned that classified information, such as the location of troops, could be disclosed inadvertently through digital photographs and Web cameras.
Sen. Patrick Leahy (D-Vt.) introduced in March, the "Restoration of Freedom of Information Act" to combat requirements for secrecy in legislation establishing the Department of Homeland Security, which Congress passed in November.
The widely criticized secrecy provisions of the new Homeland Security law criminalize disclosure of "critical infrastructure" information voluntarily submitted to the government by businesses, and grant businesses which share that information with the government immunity from liability for wrongdoing that the information may reveal.
Dubbed the "Restore FOIA" bill, the new proposal would still provide businesses with assurance that actual communications about the vulnerability of critical infrastructures would be protected, but it would narrow significantly the range of secrecy protected by law and curb the criminal penalties for disclosure.
The new bill would not criminalize disclosure of critical infrastructure information or preempt any whistleblower protections as does the current law, which could punish whistleblowers by a fine and up to one year in jail if their disclosures concerned the critical infrastructure. It does not prohibit use of the information in civil court cases to hold companies accountable for wrongdoing or to protect the public.
The United States' Federal Bureau of Investigation (FBI) has come under criticism in January from the Organization for Security and Co-operation's (OSCE) Media Freedom Representative for investigating library records, newspaper subscriptions and bookstore receipts under the pretext of anti-terrorism.
In a statement to the Permanent Council, the OSCE's decision-making body, Freimut Duve said governmental prerogatives under the USA Patriot Act are "being used in a way that might intimidate citizens from exercising their right to freedom of expression." He asked for clarification from the U.S. government and said he was also examining anti-terrorism legislation passed by European countries.
The U.S. deputy chief representative at the OSCE Douglas Davidson said nothing in the Patriot Act or the way it is enforced would allow the government to limit access to materials protected under the U.S. constitution's First Amendment.
However, media organizations say journalists should be concerned about certain provisions of the law, which grants broad new powers to government agents to investigate terrorism. Under the Patriot Act, the FBI can seek a secret court order to access books, papers, records and documents from anyone on the grounds of their suspected involvement with international terrorism or "clandestine intelligence activities,".
Their concern is, if a reporter contacts a foreign individual or political group suspected of being an "agent of a foreign power" under the Foreign Intelligence Surveillance Act, their communications could be monitored.
Florida state senators were to be briefed privately on March 7th, about a state database that tracks suspected terrorists, marking "the first time in nearly four decades that the public has been barred from attending a Senate committee meeting," according to a report in The Miami Herald. Although Florida has one of the country's strongest freedom of information laws, its record on access has increasingly become a casualty of the War on Terror.
Media groups were concerned about the government's electronic surveillance according to a Los Angeles Times story: "Atty. Gen. John Ashcroft told the Senate Judiciary Committee on Tuesday he has authorized more than 170 such emergency searches since the Sept. 11 attacks -- more than triple the 47 emergency searches that have been authorized by other attorneys general in the last 20 years."
Recently, the American Civil Liberties Union has petitioned the U.S. Supreme Court on behalf of North Jersey Media Group and the New Jersey Law Journal to overturn a decision from the U.S. Court of Appeals (3rd Cir.) upholding the closure of detainee INS deportation hearings. A similar case reaching the opposite conclusion may also reach the court.
The Center for Public Integrity, which broke the story in February, said the United States government has secretly drafted amendments to the USA Patriot Act that would fundamentally jeopardize civil liberties afforded American citizens by the Constitution yet it had been virtually ignored by mainstream media, reported the U.S. media watchdog Fairness and Accuracy in Reporting (FAIR).
Drafted by US Attorney General John Ashcroft's staff, the Domestic Security Enhancement Act of 2003 (Patriot Act II) would weaken the Freedom of Information Act by restricting public access to information about accused terrorists being detained. The proposal has not yet been officially introduced.
There were several issues that occurred during the last six months in the defense of the newsgathering process. Gary Gaynor, a photographer for the Tucson Citizen, was arrested March 5 during a protest on the University of Arizona campus. Government authorities on March 13, 2003 intercepted a package mailed between two Associated Press reporters last September and, without a warrant and without notifying the reporters, seized the contents, according to an AP report. The package contained a copy of an unclassified FBI report from 1995 that had since become a public record, the AP said.
AP reporter Jim Gomez in Manila sent the document to John Solomon in Washington in connection with stories the two reporters were investigating on terrorism. The AP said the FBI document in the package contained information that had been previously disclosed in two court proceedings. The report contained copies of evidence gathered in the terrorism cases of Abdul Hakim Murad and Ramzi Yousef. Murad and Yousef were sentenced to life in prison for plotting to blow up 12 airliners bound for the United States. Yousef was also convicted of planning the 1993 World Trade Center Bombing.
In March, Judge Jane Marum Roush denied a request made by 16 media organizations to allow recording and telecast of sniper suspect John Lee Malvo's criminal trial in Fairfax County Circuit Court Monday. Roush also denied a request for still photographs, a request granted by the judge in the case of John Allen Muhammad, the second sniper suspect who is being tried in Prince William County, Va.
While Roush did not explain why she denied the request for camera coverage, according to media law attorney Kathleen Kirby, Roush's questions led Kirby to believe that the judge was concerned that electronic or still photographs would taint the jury pool.
The U.S. Supreme Court refused in February to review a New Jersey Supreme Court decision that upheld a trial court judge's order barring journalists from interviewing discharged jurors after the jury failed to reach a verdict in the first trial of a rabbi charged with arranging his wife's murder.
The Philadelphia Inquirer petitioned the Court to review the case, which it argued was "an expansive prior restraint on the press." Rabbi Fred Nuelander was convicted in a second trial in 2002. "The order barred the press from contacting or attempting to interview discharged jurors for any reason, regarding any subject, and even if the juror initiated such contact," the Inquirer wrote in its petition to the Court.
Former Catholic priest Donald Wren Kimball was convicted in February of felony assault, felony vandalism and misdemeanor battery by a Sonoma County jury for shoving a news photographer's camera into her face while she was covering his trial at the Sonoma County, Calif. courthouse. Though he has yet to be sentenced, Kimball faces three to six years for the assault.
While on trial for child molestation in April 2002, Kimball shoved San Francisco Chronicle photographer Penni Gladstone's camera into her face, breaking her glasses, and snatched a digital camera out of her hand before throwing it toward (Santa Rosa) Press Democrat reporter Clark Mason. Gladstone, 49, suffered cuts and bruises under her right eye.
At oral arguments held in February, four news organizations requested that U.S. Magistrate Judge James K. Bredar provide access to the juvenile court records of 17-year-old accused sniper suspect John Lee Malvo now that he is being prosecuted as an adult.
This is not the first time the media has come to Bredar for access to these juvenile court records. In November, Bredar refused access to Malvo's case while it was pending in federal juvenile court in the District of Maryland.
"The public interest in this proceeding is paramount, as the Defendant has been accused of terrorizing our community," the media organizations argued in their motion. "The proceedings before this Court implicated the public safety, the administration of our criminal justice system, and the public's desire for retribution and deterrence."
As the news organizations explained, any arguments that existed to seal Malvo's juvenile court records no longer exist.
In January, the U.S. Court of Appeals in Boston (1st Cir.) invalidated Puerto Rico's criminal libel statute, finding that the statute, which was adopted in 1974, failed to comport with basic First Amendment requirements. The case was brought by Jesus Mangual, a reporter for the newspaper El Vocero de Puerto Rico, who feared prosecution for articles he had published about government corruption. Mangual's suit requested that the court declare Puerto Rico's criminal libel law unconstitutional and take measures to protect Puerto Rican journalists' right to free speech.
The United States Congress is considering a bill calling for the creation of a special office to combat Internet censorship in authoritarian regimes around the world, report International Journalists' Network (IJNet) and the Far Eastern Economic Review (FEER).
However, several Internet advocates, including the Electronic Frontier Foundation, worry that some of the new software available may not be effective enough in protecting the identity of users from Chinese authorities, among others.
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