This Court has recognized an exception to the mootness doctrine where “collateral consequences” flow from the challenged action. Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968). The Eighth and Federal Circuits have held that injury to reputation alone cannot meet the “collateral consequences” exception. The First, Second, Third, Sixth, Seventh, Ninth, and Eleventh Circuits, along with a number of state courts of last resort, have held that reputation alone can meet the “collateral consequences” exception. The D.C. Circuit and the Fifth Circuit follow a third approach, where repu¬ta-tional harm alone is sufficient if it is a “direct effect” of the otherwise moot action, but not if it is a “lingering effect” of the action.
The questions presented are:
Journalist and Petitioner
1089 Commonwealth Avenue,
Boston, MA 02215
Thank you for discussing your case with us. We are you turning the tables on you here, because you are a journalist and are used to asking the questions. Can you tell us about your background?
I was hired at the Ft. Worth Star-Telegram, the next year we won the Pulitzer Prize. (I had little to do with that.) I went on to freelance with the Dallas Morning News and substitute-taught school, kindergarten through high school. There is little difference between the two. Later, I worked with the Rocky Mountain News in Denver. They went out of business. (I had nothing to do with that.) Journalism is a prosperous business for the top 1%. If you are a TV talking head, or a Beltway reporter from an Ivy League school, or a “Fox Girl” with a high IQ and great legs, you can make decent money on the job. I was none of them. Still, I wanted to make some money in life. So, I went into construction and started a business. I did well. And I met my great wife, who retired from the Immigration & Naturalization Service. And soon I joined her in financial freedom and we moved to Wisconsin. Here I briefly hosted a talk-radio show, doing live broadcasts from Iraq and Afghanistan; and wrote a regular editorial column in our twin-county newspaper for several years. My proudest assignment was embedding with the Wisconsin Army National Guard in Iraq for the 2007 “Bush Surge.” Tears well up just thinking of it. You can see these heroic people on the tribute video: www.theandersonreport.com.
In 2010, you applied to be an embed journalist with the U.S. Army in Afghanistan. What are the terms under which you are permitted to report in this combat theater?
In January, I applied for an embed-journalist accommodation in Afghanistan. It was granted and the Army directed me, as all, to review and sign the International Security Assistance Force (ISAF), the Media Accommodation and Ground Rules Agreement (MGR). I did. Unfortunately, they do not provide any customary review or basic training to assist reporters with the MGR. This absence invites trouble. The MGR are a set of specific rules and regulations, do’s and don’ts, for embed journalists in covering news events. The military also signs a copy of the MGR with the journalists, creating an agreement that encourages and guarantees freedom of the press.
Does this agreement permit you to report things that might be controversial?
Yes, it states, "These ground rules recognize the right of the media to cover military operations and are in no way intended to prevent release of derogatory, embarrassing, negative or uncomplimentary information.” (MGR, P.1) The Rules are fair and unrestricted. Of course, timely troop movements and the posting of identifiable images of dead or wounded troops, before family notification, are prohibited. But mostly, any news is supposed fair game and the military is often helpful getting you to where the story is. That is until all hell breaks loose.
What happened when you reported on a problematic situation in Afghanistan?
In my case the Rules were contorted and the Constitution slid out of sight. In my Complaint I argued Army command violated sections of the Media Ground Rules and the Constitution, by interfering with news gathering and attempting to block the publication of a legitimate news story. The Rules are explicit, the military is not allowed to interfere or prevent news coverage. Here are just a few examples of the Army’s attempts to stop the news:
1. Immediately after I videoed the ambulance off-loading of the dead and wounded, Col. William “Bill” Burleson, commander 10th Mountain Division, confronted me at the scene. In an intimidating manner, he insisted I not publish the story. He said it would upset family members back home, and it would not bode well for base morale. And I understood that military careers would be placed in question if they were linked to a controversy. (Also, at no time did Col. Burleson request to see the video footage.)
2. Col. Paul Calbos, senior commander, called me to his office. There he let me have it. “Wayne, you’re outside your charter. You’re chasing a non-story here,” he said. “Forget this. This is not 1968. This is not 1968!” The historical 1968 reference was to the My Lai Massacre, during the Vietnam War where hundreds of civilians were sexually abused, tortured and killed by American soldiers. The horror of this prompted outrage around the world and increased U.S. calls to get out of Vietnam.
3. Late one night, a two-man team was sent to my work-tent area with instructions for me to stop the story. Lt. Col. Thomas Matsel (now colonel) and Maj. Scott Hutmacher, both 10th Mountain Division, public affairs office, arrived and told me to get “back on track,” said Lt. Col. Matsel.
The directive to get “back on track” meant for me to stop my reporting and resume the good public-relations work on the Minnesota guard. This midnight attempt was a direct violation. (Note, at no time did this team request to see the video footage.)
You were not in Afghanistan for long before you came across a sensational, controversial story. Tell us about what happened and how you reported on it.
It was a pleasant day. All quiet on the western front in Afghanistan. On Camp Mike Spann people were getting ready to have lunch. And I was coming back to my quarters from the base store. Like Nat King Cole sang, “I was walking along, minding my business” when suddenly a squad of men ran passed me full speed to their gun trucks parked by the front gate. These are the first responders, trucks modified with .50 caliber machine guns ready for instant combat. My eyes widened, my heart started pounding and I whispered: “Oh, shit.” Just as fast, an Afghan ambulance roared through the front gate and around the corner in front of me. A medical team from the hospital rushed to the ambulance. It was a real life-and-death MASH scene. My hands were shaking. But I had the instinct to reach for my video camera in my cargo pants. I immediately started filming the ambulance offloading of the dead and wounded. I was 30 feet away in a non-interfering area. (see video: http://www.startribune.com/watch-the-video-that-ended-a-war-correspondent-s-career/330733181/)
For a week, I gathered facts about this tragedy from both U.S. and Afghan sources. At a high-level meeting on adjoining Camp Shaheen, Lt. Col. Mohammed Naem, a trusted media officer, gave his side of the story. He said it was an American civilian weapon’s trainer that started an argument with Afghan soldiers. Furthermore, this argument escalated with racial slurs. Lt. Col. Naem also said it was a U.S. soldier that first started the shooting at people. And in the end, the Americans unjustly killed Sgt. Mohammad Jafer Noorzy, the suspected-Taliban infiltrator.
Afghan command invited me to interview their wounded in the hospital and take statements. The Army would not permit that. U.S. command denied the Afghan’s interpretation of events and offered their side of the story. They were mentoring Afghan recruits at the weapon’s site, when Sgt. Mohammad Jafer Noorzy seized some rifles and opened fire on personnel. He was killed by U.S. soldiers. A preliminary investigation uncovered convincing evidence Sgt. Noorzy was connected or influenced by the Taliban. My story was published in The Washington Times. http://www.washingtontimes.com/news/2010/jul/29/contractors-afghan-recruits-in-deadly-training-dis/?page=all Months later, my reporting was substantiated in a U.S. investigation into the shooting incident, which I obtained in a Freedom of Information Act report.
What was the reaction of the U.S. Army to your story?
The reaction was virulent. “You wrote this f---ing shit?!” I was called in by military command, and there a husky U.S. soldier, who refused to give his name and rank, confronted me and screamed his review of my story, which ironically was protected by the First Amendment. He went on to spew more threats and vituperations, with no objections of “conduct unbecoming” from the officers present. I was escorted out by Capt. Jodi Whitt, public affairs office, who notified me of my immediate embed termination. Capt. Whitt said the ruling was final. There would be no taking a moment to calm down, take a deep breath and hear both sides of the situation. The Army would not allow a trial, due process or any opportunity to offer a defense.
The nature of my reporting was not a matter of national security. Nor did it interfere with the war-making policy or ability of the U.S. military or the Executive Branch, under Article I, Section 8, Clause 11 of the constitution. So, there was no reason to stop my story. And kicking out reporters creates a news embargo. This is dangerous. I was escorted to Kabul. There the Army’s response was a tad more understanding but still to toe the line. Command’s fidelity to old friends up north and the Old Guard in general was first and foremost. Doing their job in ascertaining the truth, the whole truth and nothing but the truth was never in the cards. I was given a 15-minute hearing standing outside and alongside a busy airport terminal. Col. Hans Bush presented the charges against me. I’d just traveled for 24 hours and was groggy and shaken. The charge: “[P]osting video of wounded personnel.” How odd? Because “posting video of wounded personnel” is not a violation. Posting of video or photos of personnel wounded is permitted, just as long as you don’t “identify” the personnel. A small but big difference.
In my video you can see three persons on stretchers. But you cannot make a positive ID of their face, gender, race, rank or branch of service. This makes the news publication permitted. This is why I was not charged with posting anyone’s identity, because I did not. The charge of “posting video of wounded personnel” is erroneous. I later asked Col. Bush if he wanted to amend the charge and correctly state a proper charge. He did not answer. Also at outdoor get together, Col. Bush presented three large photographs, which were computer-captured screen shots off the Internet. The pictures showed three individuals on medical stretchers. Col. Bush claimed the images were Army soldiers. But actually, two were civilian contractors.
First, the photos appeared enlarged. The military has the best enhancement technology, where they can read a license plate from space. Altering the images would significantly change the nature of the photos, creating spoliation of the evidence. Col. Bush did not identify which individual on the stretcher was a soldier. This is an important point, as only soldiers are covered under the MGR—not civilians. Col. Bush never identified which one was a soldier in the three pictures. The “indentify” rule only applies to military personnel, not to civilians. So why did Col. Bush introduce confusing evidence of civilian personnel? This is a mystery steeped in suspicion. At best it was a mishandled presentation of evidence, which left me dazed and confused as to which photo was valid, which photo was being used against me and which was not. It’s like the old shell game. Guess which one?
Col. Bush never asked or saw the exculpatory video that command alleged showed the identity of the service person. This video was the main piece of the Army's accusation. Yet they never saw or requested to see it. And in this, they were able to arrive at a guilty verdict on the spot. It was a moment in Alice in Wonderland. My hearing was played with a rigged deck. And I lost before the first bet.
Were there any formal procedures the Army used to investigate your possible expulsion from Afghanistan? Were there any due process safeguards?
The Army has an army of investigators at hand, who are highly-trained professionals. But not one lifted a finger to look into the accusations laid against me. It was a fait accompli. As for due process? They were well aware of it. But I doubt it ever crossed their minds.
When you came to the United States, you filed suit against the Defense Department and Secretary of the Army, among others. What were the claims in your complaint?
Upon returning home to Wisconsin, I administratively appealed my embed termination. U.S. Army Col. Gregory Julian, chief, public affairs Supreme Headquarters Allied Powers Europe and Allied Command Operations with NATO, adjudicated the appeal. I cited my First Amendment constitutional rights and protections as an American journalist working abroad in an area under the custody and control of the U.S. Army. (Hamdi, Boumediene, Vance) I also claimed due-process rights denied. (Fifth Amendment, Goldberg, Hamdi)
Col. Julian ruled the U.S. Constitution, Supreme Court rulings and Federal Law are “not relevant” in an area under the control, custody and care of the U.S. Army operation in Afghanistan. Furthermore, he ruled the right to legal counsel and a meaningful hearing are “too exhaustive” to endure in a journalist’s termination case. (Note: Col. Julian never saw the video, either.) Upon hearing the military’s interpretation of the constitution, my congressman protested. Rep. Sean Duffy, 7th District in Wisconsin, wrote Col. Julian (and NATO) requesting the MGR be “revised” to include “reasonable protections” for reporters and to recognize basic due-process rights and establish that these rights are adhered to in embed-termination disputes.
The Reporters Committee for Freedom of the Press also objected to the treatment a working embed journalist was afforded and expressed concern that he was not “given adequate notice and a meaningful opportunity to be heard” before his status was revoked. Col. Julian declined both the Congressman’s and Committee’s reasonable requests.
How were they decided upon in the District Court?
The D.C. Court dismissed with prejudice my Complaint. Judge John Bates would not even allow me leave to amend my pro se Complaint. I was told he was a “government man” and it proved true. Even if the court had no jurisdiction over the Army, I asked Judge Bates to simply issue a declaratory judgment, something non binding but affirming, that the disregard of the First Amendment and denial of Due Process was not in accordance with the spirit of the Constitution. Even this was too much and declined even this amount of justice.
Your Federal Circuit Appeal drew a 2-1 opinion affirming. The dissent was from well-known jurist Judge Srinivasan of the Federal Circuit. Why did he dissent?
Judge Srinivasan dissented in part. He recognized that when I was talking about my First Amendment violation, using the words “First Amendment” that is what I meant. This logic escaped the majority. And just because I did not use the word “retaliation” in my complaint doesn’t mean the Army’s actions of payback were not retaliation. This logic too escaped the majority. The Supreme Court in Johnson v. City of Shelby made clear that just because you don’t use a specific word in your pleading, the entire reality of what happened can be voided. Reality counts, not just specific words. Judge Srinivasan said my case should go back to the trial court for rehearing. I agree. That’s all I ever asked, is to have my day in court.
If you had to go back to Afghanistan again, would you do anything differently?
Yes and no. Yes, I would do my duty and run the story again. It was an important story of life and death. No compromise there. And even if you could not ID personnel in a photo or video, I would use facial-recognition software to scramble the images of personnel. I did not have that software in 2010.
What should your case tell us about the quality of news/information the American public is receiving about foreign wars?
The American public will get the gist of what is happening in our wars from the media. The military does not interfere with that, and there are good American officers who want the public to know. But I experienced dealing with certain media, sometimes the details of the story will not get out. For example, in my case I contacted a major TV news channel in Kabul and told them I had the story. They said they got their information from an Army press release and didn’t need live reporting. I was shocked! This journalism is both dangerous and sloppy.
We hope you had a positive Supreme Court filing experience.
The Supreme Court Press was a God send via Google. I jumped on the Internet and there you were. I knew nothing about printing and submitting a Supreme Court brief. But Geary, editor, took my hand and lovingly guided me through the dense, legal forest. He answered all of my novice questions, gave positive feedback and friendly encouragement. All of us, in my case, could not be more happy to have run into the Supreme Court Press!