Restrictions on Travel by Voice of America Correspondents ( 1999 )

Restrictions on Travel by Voice of America Correspondents
The Secretary o f State and Chiefs of Mission may restrict travel by Voice of America correspondents
in foreign countries in order to protect their safety, but only under conditions ensuring, to the
greatest extent possible, the independence of VOA correspondents.
September 10, 1999
M e m o r a n d u m O p in io n fo r t h e D e p u t y L e g a l A d v is e r
Departm ent of St a te
You have asked for our opinion whether the Secretary of State and Chiefs of
Mission may restrict, on grounds of safety, official travel in foreign countries by
Voice of America ( “ VOA” ) correspondents. We conclude that the Secretary of
State and Chiefs of Mission may impose such restrictions, but only under condi­
tions ensuring, to the greatest extent possible, the independence of VOA cor­
respondents.
I.
The VOA, which broadcasts radio programs to foreign audiences in English
and foreign languages, is part o f the International Broadcasting Bureau of the
United States Information Agency (“ USIA” ). See National Archives and Records
Administration, United States Government Manual 1998/99, at 696 (1998). It oper­
ates under the supervision of the Broadcasting Board of Governors (“ BBG” ),
which is also within the USIA and consists of eight members appointed by the
President with the Senate’s advice and consent, plus the USIA Director. 22 U.S.C.
§§ 6203(b) & 6204(a)(1) (1994). Under the “ VOA Charter,” as enacted into law,
VOA news broadcasts are to be “ consistently reliable and authoritative” and
“ accurate, objective, and comprehensive,” to “ present a balanced and comprehen­
sive projection of significant American thought and institutions,” and to “ present
the policies of the United States clearly and effectively, and . . . also present
responsible discussions and opinions on these policies.” Id. § 6202(c)(l)-(3)
(1994). Although VOA is part of the United States Government, Congress has
established some protection for its independence: “ The Director of the United
States Information Agency and the [BBG], in carrying out their functions, shall
respect the professional independence and integrity of the International Broad­
casting Bureau, its broadcasting services, and the grantees.” Id. § 6204(c)
(emphasis added). The creation o f the BBG offered an additional safeguard against
political control of broadcast content. As the President stated, the BBG “ will
ensure independence, coherence, quality and journalistic integrity” in services
such as VOA. Statement on International Broadcasting Programs, 1 Pub. Papers
o f W illiam J. Clinton 857-58 (1993).
192
Restrictions on Travel by Voice o f America Correspondents
Congress was specifically concerned about the extent to which the Department
of State might interfere with the VOA’s judgments about reporting. Although the
International Broadcasting Act declares that the Secretary of State, acting through
the Director of USIA, is to “ provide information and guidance on foreign policy
issues to the [BBG],” 22 U.S.C. §6205 (1994), the legislative history makes clear
that, in keeping with the need for independence, this is to be the exclusive channel
for such guidance, H.R. Conf. Rep. No. 103-482, at 202 (1994), reprinted in
1994 U.S.C.C.A.N. 398, 443, and the Secretary of State is not to be “ involved
in the management or day-to-day decision-making of the [USIA] or any of its
operations or programs such as international broadcasting or otherwise.” S. Rep.
No. 103-107, at 49 (1994).
A statute enacted earlier, the Diplomatic Security Act of 1986, directs the Sec­
retary of State to “ develop and implement” measures for the “ protection of all
United States Government personnel on official duty abroad (other than those per­
sonnel under the command of a United States area military commander).” 22
U.S.C. § 4802(a)(1)(A) (1994). Chiefs of Mission, who carry out the instructions
of the Secretary of State, have additional authority under the Foreign Service Act
of 1980: the Chief of Mission in a country has “ full responsibility for the direc­
tion, coordination, and supervision of all Government executive branch employees
in that country,” and each agency o f the executive branch with employees in
a foreign country “ shall insure that all [of its] employees in that country . . .
comply fully with all applicable directives of the chief of mission.” 22 U.S.C.
§§ 3927(a), (b) (1994). See 1 Foreign Affairs Manual 013, Exhibit 013.2 (Sept.
16, 1994) (text of President Clinton’s Letter to Chiefs of Mission) (“ I charge
you to exercise full responsibility for the direction, coordination, and supervision
of all executive branch offices and personnel in [country] . . . except for per­
sonnel under the command of a U.S. area military commander, under another
chief of mission in [country], or on the staff of an international organization.” );
see also 1 Foreign Affairs Manual 010 (Sept. 23, 1981) (letter of Instruction from
President Ronald Reagan to Ambassadors). Pursuant to these provisions, the
Department of State ordinarily requires that United States Government employees
seek its clearance before they enter a foreign country on official business
( “ country clearance” ).
The question here arises from the intersection of VOA’s independence, which
enables it to present broadcasts that are “ reliable and authoritative” and
“ accurate, objective, and comprehensive,” and the Secretary of State’s authority
to protect United States Government employees abroad. The State Department
takes the view that the Secretary of State and the Chiefs of Mission may impose
travel restrictions on VOA correspondents when necessary for their protection.
See Letter for Richard L. Shiffrin, Deputy Assistant Attorney General, Office of
Legal Counsel, from James H. Thessin, Deputy Legal Adviser, Department of
State (June 27, 1997) (“ First Thessin Letter” ); Letter for Dawn E. Johnsen,
193
Opinions of the Office o f Legal Counsel in Volume 23
Acting Assistant Attorney General, Office of Legal Counsel, from James H.
Thessin, Deputy Legal Adviser, Department of State (Oct. 20, 1997) ( “ Second
Thessin Letter” ). The BBG, on the other hand, believes that such restrictions
amount to unlawful interference with VOA’s independence. Letter for Dawn
Johnsen, Acting Assistant Attorney General, Office of Legal Counsel, from John
A. Lindburg, Legal Counsel, Broadcasting Board of Governors (July 31, 1997)
(“ First Lindburg Letter” ); Letter for Dawn Johnsen, Acting Assistant Attorney
General, Office of Legal Counsel, from John A. Lindburg, Legal Counsel, Broad­
casting Board of Governors (Sept. 19, 1997) ( “ Second Lindburg Letter” ).
It has long been recognized that, at least as a matter of policy, the Department
o f State should limit its control over travel by VOA correspondents. In 1978 the
State Department issued Guidelines and Operating Procedures for VOA’s Foreign
Correspondents. Guidelines and Operating Procedures fo r VOA’s Foreign Cor­
respondents (1978) (“ Guidelines” ). In addition to protecting the reportorial
independence of VOA correspondents, the Guidelines left the State Department
only a relatively narrow authority to restrict VOA correspondents’ travel. These
correspondents were not subject to “ country clearance” by the State Department.
Instead, the Guidelines declared that “ [t]he VOA correspondent has a general
obligation to inform the [State Department] of his/her presence in the country,
and of the general nature of his o r her assignment(s).” Id. at 3. Moreover, “ should
a story require travel in a war zone or other dangerous area, VOA correspondents
will consult in advance with VOA Washington and will keep the Embassy
informed of their plans.” Id.1
After Congress passed the Diplomatic Security Act in 1986, the State Depart­
ment apparently began to take the position that VOA correspondents, while not
required to obtain the usual “ country-clearance,” needed approval from the State
Department before entering “ war zones” or “ dangerous areas.” See Memo­
randum from James H. Thessin, Deputy Legal Adviser, Department of State, Re:
A pplicability o f Department o f State Travel Restrictions to Voice o f America Cor­
respondents at 3 n .l (June 27, 1997) (“ Attachment to First Thessin Letter” ). On
April 15, 1993, the VOA asked the State Department to “ lift the restriction placed
on [VOA] on sending correspondents to Afghanistan and similar locations of com­
bat or civil strife.” Letter for J. Brian Atwood, Under Secretary for Management,
Department of State, from Joseph B. Bruns, Acting Associate Director for Broad­
casting, VOA, at 2 (Apr. 15, 1993) (“ Bruns Letter” ). There appears to be a dis­
agreement between the BBG and the State Department whether this request, in
effect, acknowledged the lawfulness of the restrictions. First Lindburg Letter at
4. In any event, at the time, the State Department concluded that VOA correspond­
1 Under the Guidelines, just as VOA correspondents did not have to follow procedures otherwise applicable to
governm ent employees, they did not receive some benefits that might otherwise come with government service.
T he Guidelines provided that they were to travel on regular, not official or diplomatic, passports, to enter countries
with journalist visas, to be subject to all local laws applicable to foreign journalists; to have no access to classified
information; and to use commercial, rather th an United States Government, communications. Guidelines at 2.
194
Restrictions on Travel by Voice o f America Correspondents
ents would not “ be excepted from restrictions that apply to all [United States
Government] employees” and denied the request as a general matter, but
attempted to speed up case-by-case review of individual requests to travel into
Afghanistan by delegating approval authority to the United States Ambassador
to Pakistan. Letter for Joseph B. Bruns, Acting Associate Director, VOA, from
J. Brian Atwood, Under Secretary for Management, Department of State (May
10, 1993). The matter continues in dispute, particularly with regard to Afghanistan,
and you have asked us to review the legal authority for the State Department’s
restrictions.
After you made this request, Congress reorganized some agencies engaged in
the conduct of foreign relations, including the USIA. See Foreign Affairs Reform
and Restructuring Act of 1998, Pub. L. No. 105-277, tit. XIII, 112 Stat. 2681-
761, 2681-776 (1998) (“ Reform and Restructuring Act” ). The reorganization,
insofar as is relevant here, becomes effective no later than October 1, 1999. Id.§ 1301. At that time, the USIA will be abolished (except for the BBG and the
International Broadcasting Bureau, which will remain in existence), and its func­
tions will be transferred to the State Department. Id. §§1311-1312. Congress,
however, reaffirmed that the Secretary of State is to “ respect the professional
independence and integrity of the International Broadcasting Bureau, its broad­
casting services, and the grantees of the Board.” Id. § 1323(i) (to be codified
at 22 U.S.C. § 6204(d)).
II.
The question here is exceptionally close and difficult. On one hand, Congress
has provided for VOA’s “ professional independence” as a guarantee that VOA
will be a “ consistently reliable and authoritative source of news” and that its
broadcasts will be “ accurate, objective, and comprehensive.” On the other hand,
Congress granted the Department of State wide authority over the protection of
civilian employees of the United States while abroad. If potentially conflicting
statutes can co-exist, they should be read, “ ‘absent a clearly expressed congres­
sional intention to the contrary,’ ” in a manner that treats “ ‘each as effective.’ ”
Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer , 515 U.S. 528, 533 (1995)
(quoting Morton v. Mancari, 417 U.S. 535, 551 (1974)). To explain the basis
on which we believe that these statutes can be read together, we must first set
out and evaluate, at some length, the arguments in favor of the outcome sought
by each agency in this matter.2
2 We cannot resolve the issue by turning to the principle that, absent a clear intention to the contrary, a specific
statute controls a general one Crawford Fitting Co v. J T Gibbons, inc., 482 U S 437, 445 (1987) Although
the statutes on which the State Department relies are the more specific ones on the question of safety, they are
less specific on the question o f V O A ’s freedom to report the news.
195
Opinions o f the Office o f Legal Counsel in Volume 23
A.
There is no dispute that, in general, the Department o f State may restrict federal
employees’ official travel abroad. The Secretary of State’s authority comes from
her statutory mandate to develop programs for the ‘‘protection of all United States
Government personnel on official duty abroad (other than those personnel under
the command of a United States area military commander),” 22 U.S.C. § 4802(a),
and from the statute vesting the Chiefs of Mission, subject to the Secretary’s ulti­
mate control, with “ full responsibility for the direction, coordination, and super­
vision of all Government executive branch employees in that country (except for
employees under the command of a United States area military commander).”
Id. § 3927. Ordinarily, therefore, a government official in Pakistan, for example,
could not travel to Afghanistan on official business, if the State Department
prohibited the travel on security grounds.
The BBG argues, however, that “ both the U.S. International Broadcasting Act
of 1994 . . . and the so-called VOA charter . . . provide a reasonable basis for
exemption from the authority relied upon by the Department of State.” First
Lindburg Letter at 2. According to this argument, by requiring the Director of
USIA and the BBG to “ respect the professional independence and integrity” of
VOA, 22 U.S.C. § 6204(c), and by directing that VOA broadcasts be “ authori­
tative,” “ objective,” and “ balanced and comprehensive,” id. § 6202(c)(1), (2),
Congress placed beyond the control of the Secretary decisions about the travel
that VOA correspondents might undertake to gather the news.
The BBG contends that freedom from travel restrictions cannot be separated
from VOA’s independence in reporting:
It simply makes no sense to prohibit the Department of State from
interfering with the content of news, and yet allow interference with
the gathering of it. For this reason the Broadcasting Act requires
respect of the professional “ independence” as well as integrity of
the broadcasters.
First Lindberg Letter at 6. According to this argument, to be a “ consistently reli­
able and authoritative” and an “ accurate, objective, and comprehensive” source
of news, 22 U.S.C. § 6202(c)(1), the VOA must be able to dispatch its correspond­
ents to those locations where the news is being made. First Lindburg Letter at
4. A limitation on news gathering is, BBG contends, a limitation on what VOA
is able to report, as well as a detriment to its credibility as a news organization.
Id. at 10-11.
196
Restrictions on Travel by Voice o f America Correspondents
In our view, travel restrictions that are not applied to all United States citizens,
or even to all United States reporters,3 are an exercise of control potentially under­
cutting the “ professional independence” of the VOA and limiting its ability to
carry out its statutory duty to present “ authoritative” and “ comprehensive” news
broadcasts. Without a correspondent in a country, VOA could not even confirm
for itself, let alone ascertain, the local conditions. See e.g., Chalmers M. Roberts,
The Washington Post: The First 100 Years 373 (1977) (“ THE POST deserved
criticism for its delay in covering the Vietnam War. Not until m id-1964, long
after the New York Times, did the THE POST open a Saigon bureau.” ). Nor
could it obtain face-to-face interviews with local leaders or develop sources out­
side official channels. See e.g., A.M. Rosenthal, How It Felt to Be Kicked Out
o f Poland, in The Working Press 161,164 (Ruth Adler ed., 1970) (1966)
(describing protection of sources by reporter living in totalitarian country). To
give a specific example, it would have been hard to credit a broadcast news
organization that claimed to be reporting “ authoritative[ly]” and
“ comprehensive[ly]” on the unification of Germany if its correspondents did not
at least have the opportunity to speak to Germans outside official channels.
Travel restrictions limit the range of what VOA can report and thus may intrude
on its “ professional independence.” Its reports cannot be “ authoritative” if they
are second-hand and cannot be “ comprehensive” if they exclude on-the-ground
news gathering. The same statutory language that guarantees VOA’s freedom in
selecting the content of its broadcasts also protects its freedom in gathering the
news.4
“ Fresh news,” Justice Holmes wrote, “ is got only by enterprise and expense.”
International News Serv. v. A ssociated Press, 248 U.S. 215, 247 (1918) (separate
opinion) ( “ INS” ). As the Court recognized in INS, news organizations may be
free to rely on each other’s reports to point toward the stories that need to be
reported, but the means for gathering the news — the “ elaborate organization”
and the “ money, skill, and effort” that allow for “ novelty and freshness, the
regularity of the service, its reputed reliability and thoroughness, and its adapt­
ability to the public needs” — are a distinctive element essential to the individual
voice of each provider of news. Id. at 238. We believe that the VOA’s statutory
protection is best read to offer substantial protection to the kind of news gathering
at issue here, along with the ultimate content of the VOA’s broadcasts that this
news gathering does so much to shape.
3 We do not address the government’s ability to limit the access o f alt media during hostilities, for example,
c f The Nation Magazine v United States Dep t o f Defense, 762 F. Supp. 1558 (S D.N Y 1991) (raising claims
about limitations on access dunng Persian Gulf War), or the government’s authority to impose travel or other restric­
tions on United States citizens generally
4 Furthermore, when carrying out its duty to offer “ programming to meet needs which remain unserved by the
totality of media voices available to the people o f certain nations,” 22 U.S.C. §6202(b)(4) (1994), the VOA nec­
essarily will be the only news organization reporting fully within those nations on the subjects of its stones In
such circumstances, it is all the more important for the VOA to be able to offer first-hand coverage
197
Opinions o f the Office o f Legal Counsel in Volume 23
This interpretation is consistent with the view that President Carter took in
transmitting to Congress Reorganization Plan No. 2 in 1977, which he said aimed
at “ [k]eeping the . . . news gathering and reporting functions [of VOA] inde­
pendent and objective.” S. Rep. No. 95-606, at 81 (1977) (emphasis added). It
is also consistent with the legislative history of recent amendments that will
abolish the USIA. There, too, Congress took the view that the statutory safeguard
of “ professional independence” extends to news gathering as well as reporting.
Recognizing that the Secretary o f State would take over functions of the Director
of USIA, Congress replaced the reference to the Director with one to the Secretary
in the provision directing “ respect [for] the professional independence and integ­
rity” of the broadcasting services like the VOA. Reform and Restructuring Act,
§ 1323(i) (to be codified at 22 U.S.C. § 6204(d)). The relevant committee report
states:
Although the [BBG] will be a federal agency, the work per­
formed by the international broadcasting entities under it can hardly
be described as a typical government function. Cynics may deride
their work as “ propaganda,” but in fact the broadcasters are
journalists, reporting the news of the United States and the world
to foreign audiences. The news gathering and reporting functions
o f the broadcasters must continue to be independent and objective.
H.R. Conf. Rep. No. 105-432, at 127 (1998) (emphasis added).5 Whatever weight
this committee report deserves,6 it is consistent with the conclusion that news
gathering, as well as reporting, is entitled to protection.
Even if news gathering is entitled to protection, however, there are strong argu­
ments for the State Department’s authority to impose at least some limitations
on travel by VOA correspondents. Because the Diplomatic Security Act requires
the Secretary to “ develop and implement” measures for the “ protection of all
United States Government personnel on official duty abroad (other than those per­
sonnel under the command o f a United States area military commander),” 22
U.S.C. § 4802(a)(1)(A), the Secretary’s inability to exercise any control over travel
by VOA correspondents would conflict with the statutory assignment of responsi­
5 This committee report addressed H.R. 1757, rather than H.R 4328, the bill actually enacted; but the Chairman
of the com m ittee with jurisdiction over H R. 1757, in “ apprising the House and the public concerning the legislative
history” o f the relevant “ Division” in H R . 4328, noted that “ Division G consists — with but minor changes —
of Divisions A and B o f the Conference Report on H.R 1757 o f the 105th Congress, House Report 105-432 ”
144 Cong Rec. HI 1,667 (daily ed. Oct 20, 1998) (statement o f Rep Gilman).
6 Insofar as the committee report deals w ith the existing law (“ must continue to be independent and objective” ),
it might be dismissed as a statement about the action o f an earlier Congress See Consumer Product Safety Comm 'n
v. G TE Sytvama, Inc , 447 U.S 102, 117-18 & n.13 (1980). Insofar as it deals with a new statute possibly intended
only to maintain existing law, the legislative history might also be dismissed as an attempt to go beyond a legislative,
and to assume an interpretive, function See Pierce v. Underwood, 487 U S. 552, 566-67 (1988). Still, the committee
report may carry some degree o f authority, since Congress did not just reenact but amended the earlier language
and since the language echoed President C arter’s words.
198
Restrictions on Travel by Voice o f America Correspondents
bility for the safety of all federal employees abroad with the sole exception of
those under military command. The authority to “ develop and implement” meas­
ures for the protection of VOA correspondents must entail an authority to impose
effective measures, including when the State Department believes that the only
effective measure is a travel restriction.
The State Department’s authority is reinforced by the letter of instructions that
the President sends to all Chiefs of Mission. This letter directs Chiefs of Mission
to “ protect all U.S. Government personnel on official duty abroad (other than
those personnel under the command of a U.S. military commander).” 1 Foreign
Affairs Manual 013, Exhibit 013.2, at 3. Moreover, shortly after enactment of
the Foreign Service Act of 1980, President Reagan issued letters of instruction
stating that the Secretary of State “ has the responsibility . . . to the fullest extent
provided by law, for the overall policy direction, coordination, and supervision
of the United States Government activities overseas.” 1 Foreign Affairs Manual
010, at 3. Congress endorsed this assignment of responsibilities in the Diplomatic
Security Act of 1986. See Second Thessin Letter at 2; 1 Foreign Affairs Manual
010. While we understand all of these directions to incorporate the concept that
President Reagan’s letter made explicit — that the State Department has the
authority “ to the fullest extent provided by law” and thus subject to legal con­
straints that may be imposed by the statutory grant of VOA’s “ independence”
in presenting “ authoritative” and “ comprehensive” broadcasts — the letter of
instructions calls for an interpretation that gives substantial effect to the State
Department’s broad control over all United States personnel abroad.7
Furthermore, although the International Broadcasting Act protects VOA’s
“ independence,” the statute plainly does not use that term in the same sense
in which it would apply to news organizations not affiliated with the United States
Government. VOA’s activities, for example, must “ be consistent with the broad
foreign policy objectives of the United States,” may not “ duplicate the activities
of private United States broadcasters” or of “ government supported broadcasting
entities o f other democratic nations,” and must present “ programming to meet
[the] needs which remain unserved by the totality of media voices available to
the people of certain nations.” 22 U.S.C. §§ 6202(a)(1), (3), (4) & (b)(4). Private
broadcasters would be under no such limits in choosing stories. Thus, VOA’s
“ independence,” far from being absolute, does not match the independence of
news organizations in the United States.
7 In the year before passage of the International Broadcasting Act, VOA acknowledged that “ [rjules established
in the Department [of State] several years ago require any VOA correspondent to obtain cabled permission
from the Bureau o f South Asian Affairs for . . travel” to Afghanistan and asked the State Department to ‘‘lift
the restriction” as to lhat country and similar scenes of conflict. Bruns Letter at 1' 2 (emphasis added) Thus, the
VOA arguably conceded the State Department’s authority. Attachment to First Thessin Letter at 3 n .l. We are reluc­
tant to read the letter as a concession, however, because it does not address the legal basis for the travel restrictions.
Indeed, the letter could be no more than a statement o f fact about the State Department’s rules, rather than a conces­
sion about the validity of those restrictions.
199
Opinions o f the Office o f Legal Counsel in Volume 23
Finally, the International Broadcasting Act, which provides for the VOA’s
“ professional independence and integrity” and which, as amended, now sets out
the VOA charter, states that
[t]he provisions of, and authorities contained in or transferred
pursuant to, this chapter are not intended to repeal, limit, or other­
wise derogate from the authorities or functions . . . available to
. . . the Secretary o f State under law, reorganization plan, or other­
wise, unless such provision hereof—
(A) specifically refers to the provision of law or authority
existing on the effective date o f this chapter, so affected; or
(B) is in direct conflict with such law or authority existing on
the effective date o f this chapter.
22 U.S.C. § 6209(f)(7) (1994) (emphasis added).8 This provision “ ensure[s] that
no legal authorities available to . . . t he Secretary of State on the date of enact­
ment of the Act are inadvertently repealed, modified, or otherwise adversely
affected.” S. Rep. No. 103-107, at 53, reprinted in 1994 U.S.C.C.A.N. at 360.
By stating that the Secretary’s authorities are preserved except in cases of direct
conflict, the statute indicates that the State Department may impose incidental
and indirect burdens on VOA’s activities. Only a direct intrusion on VOA’s
“ professional independence” is ruled out.
B.
Our task is to give effect to both the VOA’s “ independence” and the State
Department’s authority for the safety of “ all” civilian employees of the United
States Government while abroad. I f we were to conclude that the State Department
could never forbid VOA correspondents from entering dangerous areas, we would
deny effect to the State Department’s authority. At the same time, unless the exer­
cise of that authority is tightly constrained, the statutory mandate “ to respect the
professional independence and integrity” of the VOA will not be observed. We
conclude, therefore, that the Department of State may restrict travel by VOA cor­
respondents on grounds of safety, but only if in doing so it “ respect[s] the
[VOA’s] professional independence and integrity” to the greatest extent possible.
We believe that we can identify standards to give practical application to this
conclusion.
The State Department may act only in order to protect VOA’s correspondents
from physical danger. Because decisions about sending a correspondent to the
8This provision is repealed as o f October 1, 1999. Pub. L. No. 105-277, § 1323(1)(2), 112 Stat. 2681-780 (1998).
200
Restrictions on Travel by Voice o f America Correspondents
place where a story is unfolding can profoundly affect a news organization’s
capacity to cover the story “ authoritative[ly]” and “ comprehensive[ly],” the
VOA’s “ independence” means that the State Department may not make any judg­
ments about the importance of a story or the need for a VOA correspondent to
be in a particular location to cover it.
This principle suggests a strong presumption that the State Department may
not bar VOA correspondents from entering an area to which any other United
States Government employees may travel, absent a threat specifically directed
against the VOA correspondents.9 Any other rule would require the State Depart­
ment to balance the danger to VOA correspondents against the value o f their
reporting. Such case-by-case balancing would intrude upon the core of VOA’s
editorial control over its broadcasts, by allowing the Department o f State to make
its own editorial judgments about the importance of particular stories or particular
information. It would insert the Department of State directly into news decisions.
The presumption against barring VOA correspondents from areas to which any
other employees may go could be overcome only for the most compelling reasons.
For example, if the only United States Government employees who enter a country
are accompanied by bodyguards (a precaution that could not be extended to VOA
correspondents), there likely would be a substantial reason for distinguishing
between the employees permitted to enter and VOA correspondents. But the
presumption could not be set aside without some such compelling ground.
Our conclusion, therefore, recognizes the State Department’s authority for the
safety of all civilian employees of the government while abroad, but acknowledges
that the authority may not be exercised where it would directly conflict with
VOA’s “ independence,” as that term is used in the statute. The State Department
may not substitute itself for the VOA in making news judgments. By treating
VOA correspondents (as to travel restrictions) on an equal footing with the most
favorably treated employees of the government, absent some very compelling rea­
son for doing otherwise, the State Department will ensure that it is not invading
VOA’s reportorial independence.
RANDOLPH D. MOSS
Acting Assistant Attorney General
Office o f Legal Counsel
9 Because the State Department lacks authority to develop or implement measures to protect the safety o f “ per­
sonnel under the command o f a United States area military commander,” 22 U S C § 4802(a)(1)(A), and because
the military has a unique mission, the entry of United States military personnel under military command would
not typically give rise to this presumption
201