Pentagon Pundit Scandal Broke the Law

The Pentagon military analyst program unveiled in last week's exposé by David Barstow in the New York Times was not just unethical but illegal. It violates, for starters, specific restrictions that Congress has been placing in its annual appropriation bills every year since 1951. According to those restrictions, "No part of any appropriation contained in this or any other Act shall be used for publicity or propaganda purposes within the United States not heretofore authorized by the Congress."

As explained in a March 21, 2005 report by the Congressional Research Service, "publicity or propaganda" is defined by the U.S. Government Accountability Office (GAO) to mean either (1) self-aggrandizement by public officials, (2) purely partisan activity, or (3) "covert propaganda." By covert propaganda, GAO means information which originates from the government but is unattributed and made to appear as though it came from a third party.

These concerns about "covert propaganda" were also the basis for the GAO's strong standard for determining when government-funded video news releases are illegal:

The failure of an agency to identify itself as the source of a prepackaged news story misleads the viewing public by encouraging the viewing audience to believe that the broadcasting news organization developed the information. The prepackaged news stories are purposefully designed to be indistinguishable from news segments broadcast to the public. When the television viewing public does not know that the stories they watched on television news programs about the government were in fact prepared by the government, the stories are, in this sense, no longer purely factual -- the essential fact of attribution is missing.

In a related analysis, the GAO explained that "The publicity or propaganda restriction helps to mark the boundary between an agency making information available to the public and agencies creating news reports unbeknownst to the receiving audience."

In case anyone disagrees with the GAO on this point, here's what the White House's own Office of Legal Council had to say, in a memorandum written in 2005 following the controversy over the Armstrong Williams scandal (when it was discovered that the Bush administration had actually paid him to publicly endorse its No Child Left Behind Law):

Over the years, GAO has interpreted "publicity or propaganda" restrictions to preclude use of appropriated funds for, among other things, so-called "covert propaganda." ... Consistent with that view, OLC determined in 1988 that a statutory prohibition on using appropriated funds for "publicity or propaganda" precluded undisclosed agency funding of advocacy by third-party groups. We stated that "covert attempts to mold opinion through the undisclosed use of third parties" would run afoul of restrictions on using appropriated funds for "propaganda." (emphasis added)

The key passage here is the phrase, "covert attempts to mold opinion through the undisclosed use of third parties." As the Times report documented in detail, the Pentagon's military analyst program did exactly that.

1. It was covert. As Barstow's piece states, the 75 retired military officers who were recruited by Donald Rumsfeld and given talking points to deliver on Fox, CNN, ABC, NBC, CBS and MSNBC were given extraordinary access to White House and Pentagon officials. However, "The access came with a condition. Participants were instructed not to quote their briefers directly or otherwise describe their contacts with the Pentagon."
2. It was an attempt to mold opinion. According to the Pentagon's own internal documents (which can be downloaded and viewed from the New York Times website), the military analysts were considered "message force multipliers" or "surrogates" who would deliver administration "themes and messages" to millions of Americans "in the form of their own opinions." According to one participating military analyst, it was "psyops on steroids."
3. It was done "through the undisclosed use of third parties." In their television appearances, the military analysts did not disclose their ties to the White House, let alone that they were its surrogates. The military analysts were used as puppets for the Pentagon. In the words of Robert S. Bevelacqua, a retired Green Beret and for Fox News military analyst, "It was them saying, 'We need to stick our hands up your back and move your mouth for you."

Additional evidence of the illegality of the Pentagon pundits operation can be found in the February 1, 1988 memorandum mentioned above by the White House Office of Legal Council. That memorandum, titled "Legal Constraints on Lobbying Efforts in Support of Contra Aid and Ratification of the INF Treaty," was written for the Reagan administration by the well-known conservative lawyer Charles Cooper (then head of the OLC), explaining the limits of what the White House was allowed to do in its campaign to win support for the Contra War in Nicaragua. Cooper (clearly not some liberal naysayer with an anti-war ax to grind), wrote that the Reagan Administration "can make available to private groups, upon request, printed materials that explain and justify the Administration's position on Contra aid. These materials must be items that were created in the normal course of business and not specifically produced for use by these private groups." Cooper continues:

It would be unwise, however, for the Administration to solicit the media to print articles by or interviews with anyone not serving in the government. And, of course, the Administration cannot assist in the preparation of any articles or statements by private sector supporters, other than through the provision of informational materials as described in the preceding paragraph.

In the case of the current Pentagon pundit scandal, however, the Pentagon clearly was assisting in the preparation both of articles and statements by private sector supporters. It did not simply provide "informational materials" that had been "created in the normal course of business." Rather, it sat down with the retired military analysts, worked closely with them on drafting talking points, and in some cases scripted language for them to write in written commentaries, and deployed them as message amplifiers and surrogates without disclosure.

The target is you

A tantalizing window into Donald Rumsfeld's motives for creating the military analysts program can be find in a transcript that the Times obtained of one of his meetings with them. In it, he complains that he has been warned that his "information operations" are "illegal or immoral":

This is the first war that's ever been run in the 21sth Century in a time of 24-hour news and bloggers and internets and emails and digital cameras and Sony cams and God knows all this stuff. ... We're not very skillful at it in terms of the media part of the new realities we're living in. Every time we try to do something someone says it's illegal or immoral, there's nothing the press would rather do than write about the press, we all know that. They fall in love with it. So every time someone tries to do some information operations for some public diplomacy or something, they say oh my goodness, it's multiple audiences and if you're talking to them, they're hearing you here as well and therefore that's propagandizing or something.

This comment shows that Rumsfeld knows about the law against information operations that propagandize U.S. audiences. Although it is illegal to target propaganda at the America people, the law does not forbid propaganda -- even covert propaganda -- aimed at foreign audiences. Rumsfeld has been warned, however, that in today's world with "bloggers and internets and emails," even information operations overseas reach "multiple audiences" including U.S. citizens who are "hearing you here as well and therefore that's propagandizing." The irony, of course, is that Rumsfeld made these comments in a meeting with military analysts whom he had recruited specifically for information operations targeting U.S. audiences. If Rumsfeld knew that there were legal concerns even about operations targeted at foreign audiences, he certainly knew that it was illegal to target the American public. Yet he went ahead and did it anyway, and in another part of the transcript, he explained why. In fighting the war on terror, Rumsfeld said, the "center of gravity's here in Washington and in the United States."

The term "center of gravity" in this context refers to a concept in military theory. According to the U.S. Department of Defense, it means "those characteristics, capabilities, or locations from which a military force derives its freedom of action, physical strength, or will to fight." What Rumsfeld is saying, therefore, is that the most important battle in his war is not the struggle to control Iraq or defeat foreign terrorists. The most important battle, he's saying, is the fight to control the hearts and minds of the American people. And that's why he's willing to break the law to do it.

What is to be done?

Of course, the mere fact that a practice is illegal does not mean that anyone is going to be punished for breaking the law. For that to happen, someone with the power to act needs to enforce the law, which is why Congress needs to hold hearings and create enforcement mechanisms that will ensure compliance in the future. Currently, no such mechanisms exist. As the Congressional Research Service noted in its 2005 report, "No federal entity is required to monitor agency compliance with the publicity and propaganda statutes. At present, the federal government has what has been termed 'fire alarm oversight' of agency expenditures on communications. Scrutiny typically occurs when a Member of Congress is alerted by the media or some other source that an agency’s spending on communications may be cause for concern. A Member then sends a written request to the Government Accountability Office asking for a legal opinion on the activities in question."

Congress should certainly seek such a legal opinion from the GAO and the White House Office of Legal Council regarding the Pentagon's military analyst program, but this time it shouldn't stop at simply seeking an opinion. When the GAO has rendered such legal opinions previously, the government agencies caught violating the law have announced that they would comply in the future. No one was punished, however, and in practice they knew that they could continue doing what they want. That is what happened after the Reagan administration was caught using third-party surrogates to promote the Contra war in Nicaragua in the 1980s (which is how Charles Cooper ended up writing the memo I quoted above). It's what happened after the Armstrong Williams scandal broke in 2004. And without something more than mere publication of a GAO opinion, it's probably all that will happen as a result of this latest Pentagon pundits scandal.

It doesn't have to be this way. If the U.S. Congress had the will to take action, it could create real mechanisms for enforcing the law and ensuring compliance. This is important for reasons that go beyond the issue of whether anyone supports or opposes the current war in Iraq. So long as government agencies are allowed to continue getting away with covert domestic propaganda, the public is left unable to know whether the opinions of "independent" analysts are truly independent. During the Vietnam War, official Pentagon statements became so mistrusted that the term "credibility gap" was coined to describe the distance between official statements and public perceptions. The government's use of "surrogates" posing as independent experts extends the credibility gap not just to public officials but also to seemingly independent, private citizens and the news media. Until accountability exists to prevent abuses like Pentagon analyst program from continuing with impunity, the public will have to assume that anyone who appears on camera espousing views sympathetic to the White House (or, for that matter, to other government agencies) has been secretly trained, recruited and given financial incentives to do so.