Stardate 20010921.1718 (On Screen): It is not often that I find an article on FindLaw that I consider so blatantly mistaken. Julie Hilden evaluates the kinds of limits that American citizens should and should not willing to accept on civil liberties during the upcoming war, and misses horribly at least twice.
First, she uses a false conundrum to justify eliminating Fifth Amendment rights against self-incrimination. The logic goes like this: one prosecutor she spoke to said that he'd provide discovery to criminal defendants (i.e. let them know what evidence was going to be presented against them) if they'd depose;and since she thinks that discovery is important then we just need to revoke the Fifth Amendment and then everything will be peachy. But the two issues are not really linked this way just because she quoted one prosecutor grumbling about it.
Less obvious but no less wrong is her contention that the US public has a right to accurate press coverage of military operations. She wants reporters to have the right to demand to be attached to any military unit they want and to report anything they wish about it. I can see it now (or then): "So, Dan, we're out here along the border with Iraq preparing a surprise attack which they tell me will start tomorrow morning at 6:00." "Thanks, Ben, for that report. Is there any indication yet that the Iraqis know where you are?" "Dan, we haven't seen any sign of them." "OK, next on CBS news..." and then the Gulf War "Left Hook" fails when the Iraqi leadership learns about the "sneak attack" on American television. Yeah, right.
The military 
must have the ability to operate in secrecy because anything which is reported back to US citizens is instantly known to its enemy. The First Amendment protects the right of free press; it does not grant a right for reporters to look at anything they damned well feel like. There is no constitutional right of access for the press and there never has been. I am astounded that Ms. Hilden could make such a fundamental mistake; ordinarily I have found her writing to be reasonably clear-headed. Of course, she's never been involved in a war and quite evidently doesn't know anything about how they're run. (discuss)
Update: In actual fact, during the Gulf War Dan Rather actually did nearly give away the game on live television. He was complaing about limits on press access and then popped up with "I know where thus-and-so units actually are; why won't they let me cover them?" Which instantly raised the question "Oh, is the location of those units secret? Interesting. I wonder why? Must be because they moved them. I wonder where they moved them to?" Had the Iraqi leadership been awake, it might have figured out Schwarzkopf's plan of attack from that slip of the tongue and thousands of American servicemen might have been killed, becaue Dan Rather decided to have a tantrum on the air. I lost all respect for Rather that day and have never gotten any back.
