In the recent issue of the Columbia Journalism Review, David McCraw recounts the lawsuit behind The New York Times's story on retired military officers working as TV war analysts. McCraw and reporter David Barstow filed suit to get the Department of Defense to respond to an FOIA request for data from the Pentagon on the "dozens of retired military officers who had been deployed by Defense to sell the war in Iraq." He also describes how he used reporting to shape the litigation strategy.
Six years and a day after 9/11, I filed a complaint in federal court asking a federal judge to do what New York Times reporter David Barstow and I had failed to do in countless phone calls and letters for nearly a year and a half: get the Department of Defense to respond fully to David’s freedom-of-information request. The request was gargantuan—basically, David wanted every piece of paper the Pentagon had about dozens of retired military officers who had been deployed by Defense to sell the war in Iraq—and our hopes were modest. Freedom of Information Act cases often move slowly, and Defense had little interest in shining any light on how the retired officers—now rechristened “analysts” on TV—had been given special access to Pentagon briefings even as some of them pitched business for military contractors. There was also this: Our judge was a former government prosecutor, freshly appointed to the bench by President Bush.
Nothing quite prepared us for what followed. Over the next six months, Judge Richard J. Sullivan’s orders drove the release of thousands of pages of documents, and when the Pentagon stalled, he took no prisoners. The last time we appeared in his courtroom, he made himself clear: “The Executive Branch doesn’t get to just thumb its nose at a separate branch of government.”