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Ombudsman blog archive


A threat to press and academic freedom

UPDATE: The Pentagon has alerted me to a brief Associated Press article sent out late Tuesday afternoon reporting that the 7,000-page Pentagon Papers will now be declassified – four decades after they entered the public domain. That is welcome and long overdue news. But until the process is complete, it does not alter the concerns expressed in this column, which has been revised to reflect the development.

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Stars and Stripes’ promised right to gather and present information “without news management or censorship” is being imperiled by the government anew, this time with a suffocating policy that intrudes not only on the newsroom but on classrooms nationwide.

In December, as part of a White House effort to tighten data security after the WikiLeaks disclosures, federal agencies and the military issued advisories on the handling of classified information. The Pentagon entity that incorporates Stars and Stripes, Defense Media Activity, did so on Dec. 10.

But after this column pointed out conflicts with the guarantees of editorial independence and press freedoms in Stars and Stripes’ charter, Department of Defense Directive 5122.11, the DMA withdrew it.

Now, the Pentagon has issued new restrictions more troubling in some respects than those they replaced.

The DoD should have tailored a policy to Stars and Stripes’ unique standing as a government-owned news organization that is nonetheless guaranteed the right to operate free of official influence or interference. Instead, the Pentagon took a one-size-fits-all approach and applied department-wide guidelines to the newspaper.

And those go beyond the concerns raised by WikiLeaks, effectively threatening punitive action against anyone who is in or aspires to federal service and lacks clearance to “access classified information” in the public domain in any form.

That would include even historical documents like the 40-year-old Pentagon Papers.

Leaked in 1971, controversially entered into the Congressional Record that same year and the focus of an epic freedom of the press court case, the Pentagon Papers, an official history of the Vietnam War, remain classified “top secret,” except for four sections the State Department declassified in 2003. However, the Associated Press reported late Tuesday that the government has now decided to declassify the remainder.

That makes sense. Anyone can buy them from Amazon.com. They also sit on the bookshelves of public and institutional libraries, are used in university courses and, according to reporting by one of my journalism students at St. John’s University, Nell O’Connor, are available in the military service academies’ libraries and the Library of Congress.

It’s just that no one was supposed to read them, if the Pentagon’s latest advisory is to be taken as written.

“Unauthorized disclosures of classified documents (whether in print, on a blog, or on websites) do not alter the documents’ classified status,” it states.

“DoD contractors or employees shall not access classified information unless they have received a favorable determination of eligibility for access by an appropriate authority; signed an approved nondisclosure agreement; demonstrated a need to know the information; and received training on the proper safeguarding of classified information and on the criminal, civil and administrative sanctions that may be imposed on an individual who fails to protect classified information from unauthorized disclosure.”

While the advisory was clearly sparked by WikiLeaks and elsewhere emphasizes concern over unsecured government or personal computers accessing and storing leaked information, its language and effect are far more sweeping.

John Prados, a senior research fellow at George Washington University’s National Security Archive and a recognized authority on Vietnam and national security issues, warned on his blog Dec. 14 that if the government’s new WikiLeaks-inspired “standard holds true, government employees should not be allowed to read (or reference, or cite) the Pentagon Papers either.”

Unaware of Prados' post at the time, I asked the Defense Department about the Pentagon Papers' classified status Dec. 21 and was directed to the GWU Archive, which has sought declassification for years.

Last week, I asked Army Cadet Command, which oversees ROTC programs, what a cadet should do if assigned a reading from the Pentagon Papers. I was told that that scenario had not been discussed but that a student might ask the campus ROTC commander to intervene with the professor in search of an alternative.

At the Pentagon, a senior press spokesman, Col. Dave Lapan, said last week that he was “not going to get into hypothetical scenarios,” but that “I would hope that service members and DoD employees wouldn't be given academic assignments requiring them to break the law.”

“Military students or those in the categories you describe are prohibited from accessing classified materials from unclassified government computers; this would include classified portions of the Pentagon Papers,” he wrote me. “There are ways to write about the Pentagon Papers without using government computers to access the classified portions.”

But the advisory does not confine itself to “government computers.” Lapan did not reply to a follow-up query sent Friday seeking clarification.

Prof. Robert Tomes, a St. John’s University colleague who teaches a course on the Vietnam War, said he had never before contemplated the possibility of a Pentagon Papers assignment putting someone’s government career at risk (or worse) – “but I guess I have to now.”

How so? Officials say government employment can require a security clearance. And in the vetting, applicants may be asked if they have ever accessed classified material without authorization. A yes, arising from something as innocuous as a class reading from the Pentagon Papers, could jeopardize that clearance and the job that depends on it. But a no could constitute perjury.

This takes an even stranger turn when one considers that the policy may also be applied retroactively to information that entered the public domain legally but that the government later “reclassified.”

That’s right, “reclassified.” GWU researcher Matthew Aim has reported that in 1999 the government began classifying records that it had previously declassified and made public, such as a 1948 CIA director’s memo complaining about bad publicity. (Reclassification was affirmed in a 2009 presidential executive order.)

Tomes, the St. John’s history professor, said this also included Korean War records that researchers had obtained copies of while they were officially declassified and legally in the public domain, and where they effectively remain despite “reclassification.”

I’m not saying men in black will begin descending on campuses to peer over the shoulders of professors, researchers, military students or current and future public servants trying to advance their educations or career prospects.

But it is wrong to try to fix a flawed system for protecting legitimate national secrets by coercing individuals into averting their eyes from public information – in effect, enforcing ignorance – and creating a dilemma in which they must choose between education, regulation or perjury.

In the short term, the Pentagon needs to keep its word that Stars and Stripes journalists may operate, as their peers in the private sector do, free of “news management or censorship.” They need to be made free again to consult original source material in the public domain, whether it comes from WikiLeaks, the Pentagon Papers or Timbuktu, and to publish any information its editors deem newsworthy once it is public.

Although I am told the publisher and senior editors will not comment publicly, my position is strongly supported by three retired longtime Stars and Stripes news executives – former Editor and Publisher Tom Kelsch, former Editor and Ombudsman Dave Mazzarella, and former Executive Editor Robb Grindstaff.

Moreover, the government at large needs to revisit a security initiative that, though well intentioned, nonetheless threatens not only press freedom at Stars and Stripes but academic freedom on campuses nationwide and the right to know of Americans everywhere.

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Ernie Gates

Stars and Stripes ombudsman

As a journalist for more than three decades, Ernie Gates has been a reporter, editor and news executive, including 10 years leading the enterprising print and digital newsroom of Tribune Co.’s Daily Press in Hampton Roads, Va.

News for and about service members, families and veterans has always been a key focus in Hampton Roads, where every branch of the armed services has a significant presence.

As vice president and editor, Ernie was responsible for all news, business, features and sports coverage and oversaw the editorial page. He also wrote the daily Feedback column, responding to readers’ questions and comments about coverage, news judgment, journalism ethics, taste and other issues. Representing the paper as a public speaker, he focused on News Values and Credibility.

He is a past president of the Virginia Press Association and a past chairman of Virginia Associated Press Newspapers. 

Since leaving the Daily Press in 2010, Ernie has stayed active in public affairs. He is a member of the Advisory Board of the Lewis B. Puller Jr. Veterans Benefits Clinic at the William & Mary Law School.  He is also serves on the Coalition Partners Advisory Panel of the Virginia Coalition for Open Government.

Ernie and his wife, Betsy, live in Williamsburg, Va. They have three adult children.

Ernie Gates can be reached at ombudsman@stripes.osd.mil or (202) 761-0587.

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The ombudsman

Congress created the post in the early 1990’s to ensure that Stars and Stripes journalists operate with editorial independence and that Stars and Stripes readers receive a free flow of news and information without taint of censorship or propaganda.

The ombudsman serves as an autonomous watchdog of Stars and Stripes’ First Amendment rights. Anyone who fears those rights are imperiled should alert the ombudsman.

The ombudsman is also the readers’ representative to the newsroom. Readers who think a journalistic issue or event was misrepresented or ignored or who feel complaints were not properly addressed by Stripes reporters or editors should contact the ombudsman.