It’s ‘Zero’ hour for watchdogs, media

Political wrangling over film likely to chill future interactions, disclosure

As the filmmakers behind “Zero Dark Thirty” launch into an Oscar-season publicity blitz, they are stressing how nonpolitical their pic about the hunt for Osama bin Laden is. President Obama, for instance, appears only in a brief news clip.

The reason is that even before the first frame of film was shot, they’d stepped in to a partisan thicket: Republicans asserted that the Obama administration bent over backwards to help director Kathryn Bigelow and screenwriter Mark Boal — and may have provided classified material — to trumpet one of the White House’s signature successes.

Boal, in an interview this week with ABC News’ Martha Raddatz, said, “I certainly did a lot of homework, but I never asked for classified material, and to my knowledge, I never received any.”

The conservative watchdog org Judicial Watch, having filed a Freedom of Information Act request, obtained a trove of emails and other documents related to the interaction that the filmmakers had with the Department of Defense and the CIA. Their release didn’t exactly shake the corridors of power, but Judicial Watch is pressing forward with its case and continues to seek the partial names of four CIA operatives the government arranged for the filmmakers to interview as they researched the script, as well as the full name and rank of a Navy SEAL they say the Department of Defense provided to Boal.

“As the government has stated, it routinely provides information to filmmakers who request it for the purpose of ensuring artists who wish to portray government functions and historical events accurately may do so,” Judicial Watch said in a Nov. 12 brief with the U.S. District Court in D.C. “While that may normally be a perfectly harmless endeavor, when the government goes from simple information sharing to selectively providing non-public information to some filmmakers while refusing to release it generally, this once-harmless activity crosses a line of appearance.”

The org claims that by releasing the partial or full names to the filmmakers, the government is waiving an exemption from FOIA.

Attorneys for the Defense Department and the CIA, however, say that the CIA operatives, all of whom played a role in planning the raid, only provided their full first names, not last names or pseudonyms, during their interviews. In a brief filed in September, the DoD and the CIA said that they “disclosed the names to the filmmakers, not the general public, and only for the limited purpose of facilitating the filmmakers’ meeting with the individuals. … The CIA and DoD did not authorize the filmmakers to make names they shared with them public, to publicly associate the individuals with the CIA or DoD, or to expose those individuals’ identity in any publicly released film, and there was no reason for the CIA or DoD to have believed that any of this would have happened.”

Attorneys for the agencies contend that the government has “reasonably withheld” the names from disclosure “pursuant to well-established FOIA exemptions.” They point to a court decision last year in which the FBI allowed civil rights groups to view chapters of an operations guide, and even take notes, during a two-hour meeting at FBI headquarters. But the U.S. District Court ruled that the FBI did not fully waive its right to withhold chapters from release.

Mark Caramanica, freedom of information director at the Reporters Committee for the Freedom of the Press, said that the “Zero Dark Thirty” case suggests that the agencies are being “hypocritically selective,” particularly with a project that puts the administration in a good light, and wonders just how much information would have been released had they not been compelled to do so.

“If the names are truly a national security secret, they shouldn’t be disclosing them to anybody,” Caramanica said. “They shouldn’t be picking and choosing based on who has rights and who doesn’t.”

There’s the other view, still rooted in press freedom, that journalists, authors and filmmakers depend on access to anonymous sources, at times arranged by public-affairs staffs, and with varying levels of cooperation. In fact, among the emails that were released to Judicial Watch was an email exchange between CIA spokeswoman Marie Harf and Defense Department spokesman George E. Little, in which Harf shows some affinity for the Boal-Bigelow project over another being pursued by Ron Howard. “I know we don’t ‘pick favorites’ but it makes sense to get behind the winning horse,” Harf wrote.

The concern, however, didn’t appear to be which project would offer the more favorable treatment but rather which was more likely to go forward and, presumably, be worthy of more time. In other words, that sort of consideration is part of the regular vetting process.

Greenberg Glusker partner Ricardo P. Cestero, who has a specialty in First Amendment cases, said that while the government provided to Judicial Watch the information that it gave to the filmmakers, when it comes to the names at issue, “There is nothing in the law I am aware of that would compel the government to make those people available to others.”

Ultimately, this case may result in more skittishness when it comes to military-media cooperation, even after the backstory over “Zero Dark Thirty” fades from view.

In response to Rep. Peter King (R-N.Y.), the chairman of the Homeland Security Committee who has been pressing questions regarding the filmmakers’ access, the inspector general at the Department of Defense said in September that the department is reviewing “policies and procedures” concerning interaction between the Defense Department and the media when it pertains to classified or “sensitive” information or programs.