Sunday, December 05, 2004

Does the Constitution Allow This?

The First Amendment says that "Congress shall make no law...abridging the freedom of speech, or of the press...." Great stuff. I buy it. But then there's this, from a story at

On the evening of Oct. 14, a young Marine spokesman near Fallouja appeared on CNN and made a dramatic announcement.

"Troops crossed the line of departure," 1st Lt. Lyle Gilbert declared, using a common military expression signaling the start of a major campaign. "It's going to be a long night." CNN, which had been alerted to expect a major news development, reported that the long-awaited offensive to retake the Iraqi city of Fallouja had begun.

In fact, the Fallouja offensive would not kick off for another three weeks. Gilbert's carefully worded announcement was an elaborate psychological operation — or "psy-op" — intended to dupe insurgents in Fallouja and allow U.S. commanders to see how guerrillas would react if they believed U.S. troops were entering the city, according to several Pentagon officials.

In the hours after the initial report, CNN's Pentagon reporters were able to determine that the Fallouja operation had not, in fact, begun.

"As the story developed, we quickly made it clear to our viewers exactly what was going on in and around Fallouja," CNN spokesman Matthew Furman said.

Officials at the Pentagon and other U.S. national security agencies said the CNN incident was not an isolated feint — the type used throughout history by armies to deceive their enemies — but part of a broad effort underway within the Bush administration to use information to its advantage in the war on terrorism....

Surely the viewers of CNN included our enemies, or persons friendly to them who passed along the information broadcast by CNN.

I know the arguments about undermining the credibility of the news media -- and the government -- by using the media to broadcast disinformation. But those are just arguments. The fact is that the U.S. is engaged in a legal war against a determined and ruthless enemy, and the use of disinformation is a time-honored tactic of warfare. Why not risk undermining the credibility of the media -- to the extent that the media have much credibility left -- if it helps to win the war?

Unless CNN's report and the news story I've quoted are part of a disinformation campaign, it seems that media may be undermining the war effort by revealing particular instances of disinformation and giving the enemy hints as to the shape of our disinformation campaign.

That leads to my question: Is there an interpretation of the Constitution that would make it illegal for the media to publish information that compromises military operations?

ADDENDUM: If there is a compelling governmental interest in the regulation of political speech (i.e., campaign-finance "reform") and a compelling governmental interest in allowing publicly funded universities to pursue "diversity" (a concept that I cannot find in the Constitution), why not a compelling governmental interest in the suppression of media reports that undermine the prosecution of a constitutional war?

I'm being provocative here because I hope to draw out my host and some of his readers on this issue.