FEIN: War is a public affair

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By Bruce Fein

COMMENTARY:

At present, the Pentagon prohibits news coverage of coffins arriving at Dover Air Force Base from Iraq and Afghanistan. The military knows that pictures are worth a thousand words.

They are key elements of political debate - especially in matters of war and peace. Think of Nick Ut's 1972 photo of 9-year-old Kim Phuc in South Vietnam, running naked down a highway after her village was bombarded with napalm, or Pablo Picasso's Spanish Civil War painting "Guernica."

News coverage of coffins of dead American soldiers returning from Iraq or Afghanistan should be part of public discourse over whether those twin wars should be continued - which is not self-evident. The Constitution authorizes a "common defense" to "secure the blessings of liberty to ourselves and our posterity." It nowhere hints that sacrificing Americans in a quest to extend the blessings of liberty to Iraqis, Afghans, or other foreigners would be a legitimate constitutional enterprise. Neither is "defense" a synonym for offensive warfare in anticipation of a possible attack. That would end any constitutional limits on war, and squander the lives of soldiers as senselessly as the British Charge of the Light Brigade during the Crimean War.

Abraham Lincoln elaborated: "Allow the president to invade a neighboring nation whenever he shall deem it necessary to repel an invasion ... and you allow him to make war at pleasure.... If today he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him, 'I see no probability of the British invading us'; but he will say to you, 'Be silent: I see it, if you don't.' "

As regards military tactics, the idea that Iraq or Afghanistan would launch an attack the United States if U.S. and NATO troops were withdrawn - even if their governments were replaced by Islamic extremists - is fatuous. What is more plausible is that they might harbor international terrorist groups, like al Qaeda. But other countries already give aid and comfort to international terrorists without provoking U.S. military intervention, for example, Iran, Syria or North Korea.

If the latter countries are insufficiently threatening to justify war, why does Iraq or Afghanistan satisfy a war threshold? In any event, the public needs more not less information about the Iraq and Afghan wars to decide whether they should be prolonged. News photos of coffins returning from the two wars would further that objective.

Accordingly, Democratic President Barack Obama should endorse North Carolina Republican Rep. Walter Jones' bill to lift the Pentagon's current prohibition. He should not await a Pentagon internal review. A 2003 national poll by the New York Times and CBS found that by a 62-27 percent margin, respondents believed photographs of the military honor guard receiving coffins at Dover, Del., should be permitted.

Maintaining the news ban to protect family privacy is unconvincing. The coffins do not bear the names of the deceased. They do not lend themselves to commercial exploitation. Moreover, the time has long since passed when war might have been considered a private affair like Achilles battling Hector in Homer's "Illiad."

As Clausewitz wrote in "On War," "War is nothing more than the continuation of [international] politics by other means." Even with an all-volunteer armed forces, the Iraq and Afghan wars affect the entire nation. Hundreds of billions have already been spent on the twin wars, which has aggravated the nation's economic plight. Moreover, arguably the wars have made Americans less safe by provoking widespread resentments abroad by the intentional or unintentional killing of civilians and triggering instinctive human hostility towards an occupying power. A recent BBC and ABC News survey revealed that although 90 percent of Afghanis oppose the Taliban, less than 50 percent hold favorable views of the United States, a vertical plunge from a year ago, and that 25 percent believe attacks on U.S. troops can be justified.

In sum, all Americans have a stake in making the decisions whether to continue the Iraq and Afghan wars turn on the most complete information and balancing of risks and benefits. No private individual should be permitted to throw a spanner into the democratic process by shielding a military coffin from news coverage.

In Richmond Newspapers Inc. v. Virginia (1980), the United States Supreme Court recognized a First Amendment right of public access to trials. Writing for a plurality, Chief Justice Warren Burger explained that the Amendment guarantees freedom to communicate about the functioning of government; and, "it would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted." The chief justice overlooked war.

Bruce Fein is a constitutional lawyer with Bruce Fein & Associates, Inc. and author of "Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy."