WASHINGTON -- If the Persian Gulf war does not end swiftly, the American press could get the first ruling in history on its right to go directly to the front lines of war to get stories.
In a legal battle that is beginning to unfold in a skyscraper courthouse in New York City's Foley Square, far from the actual scenes of real or potential combat in the Middle East, press organizations are insisting they have a constitutional right to gather the news as it happens in combat.
The Pentagon, reflecting the military tradition that commanders have to be in control in the midst of war, are strenuously resisting the idea that the Constitution itself gives journalists a choice about what they can do at or close to the scenes of battle.
Both sides are relying heavily upon many pages of American history, but it's a history that tells only a confused tale.
The judge who faces the task of sorting out the dispute over history and over press rights is Leonard B. Sand, a U.S. district judge with a reputation for making bold decisions. He indicated at a hearing last week that he was taking the constitutional dispute very seriously.
However, he may not reach a final ruling for several weeks, and -- depending upon how swiftly the war moves toward a close -- that could be too late.
One time before, after the press was shut out of the opening shots in the U.S. invasion of Grenada in 1983, the press had gone to court to win a constitutional right of access to scenes of battle involving U.S. forces. That military operation ended before the judges could reach a decision.
In New York, two cases are moving forward in the new attempt to establish a basic constitutional right of access to war zones for reporters and television crews. One is a lawsuit by a French news agency, Agence France-Presse, and another is a more sweeping legal challenge by several magazines, three small newspapers and other news organizations plus five individual writers.
Major newspapers and TV networks have stayed out of the cast, apparently because of doubts their lawyers have about whether the press could win. Judge Sand has already started considering the French news agency case but is not due to hold a hearing on the broader case until March 7.
The press has covered many of America's wars -- some from up close -- but it has been kept at a distance, or banned altogether, from some other military actions, and so it is far from clear that the press has history all on its side.
Under rules now in effect for the Persian Gulf war, reporters get battle-scene news only by traveling in a "pool" with a military escort, and their stories must pass through military censors. Any reporter found in a combat zone unescorted will be taken, involuntarily, to the rear, the Pentagon has said.
That has led to the new skirmish over press rights in the Mideast war -- a legal dispute that ultimately may depend upon interpreting the confused history of American war correspondence.
There, Judge Sand and his law clerks are spending at least part of their time reviewing the role of the war correspondent in every American war going back to the one that led to the founding of the nation, the Revolutionary War.
In a real way, the constitutional issue they are pondering may come down to a question just this simple: Since a U.S. newspaper reporter was allowed to fly along when America dropped an atomic bomb on Nagasaki, Japan, in World War II, does that mean a reporter or TV crew has a right to be at the Kuwaiti border the moment that a ground war breaks out in the conflict with Iraq?
The Pentagon says that history should not be interpreted to support that kind of constitutional conclusion because, it says, the press has never had unrestricted rights to be present at the scene of battle. The Pentagon notes, as part of its review of history, that when the first atomic bomb was dropped -- on Hiroshima, three days before the Nagasaki atomic raid -- no journalist went along to witness it.
The news organizations, however, are arguing just the opposite, and they, too, are relying on history. It is "a drastic departure" from the past, that group is contending in Judge Sand's court, for the U.S. military to be limiting press access as it now is in the Persian Gulf conflict.
"The press," the group's lawyers conclude, "has reported firsthand virtually every military operation involving American forces since the Civil War."
The group does concede that, when U.S. troops invaded Grenada in 1983 and Panama in late 1989, the press was "blacked out" when the initial assaults began. But those incidents, too, were a break with the longer tradition of the "openness" of war to the American press, it contends.
There appear to be few lawyers, even lawyers who represent major news organizations, willing to predict that the judge will rule that the press does have a constitutional right to be present in the combat zone, or that the military may not censor the stories that reporters do gather about military operations.
But even those lawyers appear unwilling to predict, with any confidence, that the press group's lawsuit is a forlorn effort sure to be lost. The Supreme Court, experts on press law have noted, has said -- in several decisions dating to 1980 -- that the Constitution's free press clause does give the press some right to cover government activity, a right subject to enforcement in court.
That right, however, turns heavily upon history, those lawyers note. The court has said that a right of press access exists only if the government activity is of a kind that, in the nation's traditions, was open to the public. Criminal trials in court have been open throughout American history, for example, so the press has a right to observe those proceedings, the court has said.
But the somewhat confused and often contradictory history of press access in wartime to combat zones or scenes of aerial war may not yield as clear-cut an answer, according to media law specialists.
Still, even if the press' version of history turns out to be more convincing to Judge Sand than the Pentagon's, the press still may not get unrestricted access to cover the Mideast war. Besides saying that a press right of access exists only when history shows that the activity was always open to reporters, the Supreme Court also has said that press access is to be guaranteed only when the press' coverage would help that government activity in some way.
The Pentagon is satisfied that it can convince Judge Sand that the military is in the best position to judge when press coverage will help, or hinder, operations, in the Middle East or in any other field of combat.
Just as fervently, the press groups challenging the Pentagon restrictions are claiming that they can convince Judge Sand that only the press knows what news of war should be reported to the people back home.
And yet, even if the press wins on that issue, too, the question of the military's power to censor what is gathered would then loom as a separate, difficult issue, according to press law experts. The Supreme Court has issued rulings, dating to 1931, that might be read either way, the experts say.
Judge Sand, they add, would have to interpret that history, too.