New Pentagon Law Targets Reporters
August 27, 2015
The Associated Press & Don North / Consortium News<
The Pentagon's new "Law of War" manual puts some journalists in the category of "unprivileged belligerents," meaning they can be tried by military tribunals as spies, a further sign of US government hostility toward reporting that undercuts Washington's goals. Under the new DOD guidelines, the military would have the power to imprison journalists as 'belligerents' and to hold them indefinitely without charges or trial.
New Defense Department Manual Allows for Detention of Journalists
The Associated Press & Al Jazeera America
(August 25, 2015) -- New Defense Department guidelines allow commanders to punish journalists and treat them as "unprivileged belligerents" if they believe journalists are sympathizing or cooperating with the enemy.
The Law of War manual, updated to apply for the first time to all branches of the military, contains a vaguely worded provision that military commanders could interpret broadly, experts in military law and journalism say. Commanders could ask journalists to leave military bases or detain journalists for any number of perceived offenses.
"In general, journalists are civilians," the 1,180 page manual says, but it adds that "journalists may be members of the armed forces, persons authorized to accompany the armed forces, or unprivileged belligerents."
A person deemed to be an "unprivileged belligerent" is not entitled to the rights afforded by the Geneva Convention. A commander could restrict from certain coverage areas or even hold indefinitely without charges any reporter considered an "unprivileged belligerent."
The manual adds, "Reporting on military operations can be very similar to collecting intelligence or even spying. A journalist who acts as a spy may be subject to security measures and punished if captured." It is not specific as to the punishment or under what circumstances a commander can decide to "punish" a journalist.
Defense Department officials said the reference to "unprivileged belligerents" was intended to point out that armed group members or spies could be masquerading as reporters. The designation was also made to warn against someone who works publications like Al-Qaeda's "Inspire" magazine that can be used to encourage or recruit adherents.
Another provision says that "relaying of information" could be construed as "taking a direct part in hostilities." Officials said that is intended to refer to passing information about ongoing operations, locations of troops or other classified data to an enemy.
Army Lt. Col. Joe Sowers, a Pentagon spokesman, said it was not the Defense Department's intent to allow an overzealous commander to block journalists or take action against those who write critical stories.
"The Department of Defense supports and respects the vital work that journalists perform," Sowers said. "Their work in gathering and reporting news is essential to a free society and the rule of law." His statement added that the manual is not policy and not "directive in nature."
But Ken Lee, an ex-Marine and military lawyer who specializes in "law of war" issues and is now in private practice, said it was worrisome that the detention of a journalist could come down to a commander's interpretation of the law.
If a reporter writes an unflattering story, "does this give a commander the impetus to say, now you're an unprivileged belligerent? I would hope not," Lee said.
Defense officials said the manual describes the law for informational purposes and is not an authorization for anyone to take any particular action regarding journalists. The manual also notes that journalists captured by the enemy are supposed to be given the rights of prisoners of war under the Geneva Convention.
Pentagon Manual Calls Some Reporters Spies
Don North / Consortium News
(August 19, 2015) -- Honest war correspondents and photographers who try to cover wars effectively are about to become suspect spies if a new Pentagon manual, "Law of War," is accepted by US military commanders. I can confirm from personal experience that reporting on wars is hard enough without being considered a suspicious character secretly working for the other side.
The 1,176-page manual, published on June 24, is the first comprehensive revision made to the Defense Department's law of war policy since 1956. One change in terminology directly targets journalists, saying "in general, journalists are civilians," but under some circumstances, journalists may be regarded as "unprivileged belligerents." [p. 173] That places reporters in the same ranks as Al Qaeda, since the term "unprivileged belligerents" replaces the Bush-era phrase "unlawful combatants."
"Reporting on military operations can be very similar to collecting intelligence or even spying," the manual says, calling on journalists to "act openly and with the permission of relevant authorities." The manual notes that governments "may need to censor journalists' work or take other security measures so that journalists do not reveal sensitive information to the enemy."
The manual's new language reflects a long-term growing hostility within the US military toward unencumbered reporting about battlefield operations as well as a deepening interest in "information warfare," the idea that control over what the public gets to hear and see is an important way of ensuring continued popular support for a conflict at home and undermining the enemy abroad.
But allowing this manual to stand as guidance for commanders, government lawyers and leaders of foreign nations would severely damage press freedoms, not only for Americans but internationally. It would drastically inhibit the news media ability to cover future wars honestly and keep the public informed, which is after all what both US government officials and journalists say they want.
Bitter Vietnam Memories
The new manual also reflects an historical trend. During the Vietnam War, a majority of US military officers believed the press should have been under more restraint. By the early years of the Reagan administration, it had become an article of faith among many conservatives that the press had helped lose that war by behaving more as disloyal fifth columnists than a respectable Fourth Estate.
So, the Pentagon began to strike back. During the short-lived Grenada invasion of 1983, press coverage was banned in the early phases of the conflict. Soon, the Pentagon began a more formal process of both constraining and co-opting journalists. In the first Gulf War, journalists were forced to work in restrictive "pools." In the Iraq War, reporters were "embedded" with military units while facing multiple limitations on what they could say and write.
Now, the Pentagon appears to be engaging in an attempt at intimidation or "prior restraint," essentially warning journalists that if they are deemed to have reported something that undermines the war effort, they could be deemed "unprivileged belligerents," presumably opening them to trial by military tribunals or to indefinite detention.
And, while that might seem to be an extreme interpretation, the manual's ominous wording comes at a time when the US government has escalated its denunciations of what it regards as "propaganda" from journalists at RT, a Russian network, and earlier of Al-Jazeera, an Arab-based network, both of which broadcast internationally, including inside the United States offering alternative perspectives and contrasting information from what is often reported in the mainstream US media.
This rhetoric labeling unwelcome journalism as "propaganda" hostile to US national security goals also comes at a time of global political turmoil that has seen a shocking number of journalists jailed, intimidated and murdered with impunity simply for doing their jobs.
Reporters Without Borders reported 61 journalists killed last year, with 59 percent dying while covering wars. The same study found media freedom in retreat across the globe, including in the United States, which ranked 49th among the 180 nations examined regarding the environment for press activities, the lowest standing since President Barack Obama took office.
The Reporters Without Borders report suggests that the Pentagon's new manual may be part of a worldwide trend in which governments see shaping the presentation of information as an important national security goal and skeptical journalism as an impediment.
"Many governments used control and manipulation of media coverage as a weapon of war in 2014, ranging from over-coverage to complete news blackout," the report stated. "It creates a hostile climate for journalists and has disastrous consequences for media pluralism."
In the United States, the hostility toward unwanted or unapproved reporting -- whether from RT, Al-Jazeera or WikiLeaks -- has merged with more classification of information and greater delays in releasing material sought through Freedom of Information channels.
Despite President Obama's pledge to make his administration one of the most transparent in history, press freedom watchdogs have continually slammed his administration as one of the least transparent and criticized its aggressive prosecution of leakers, including Army Pvt. Chelsea (formerly Bradley) Manning for releasing evidence of apparent war crimes in the Iraq and Afghan wars. Manning received a 35-year prison sentence and is currently facing possible solitary confinement for alleged prison infractions.
The Obama administration's obsession with secrecy even extended to the status of the new manual's views about war reporting. A spokesman for the National Security Council has declined to say whether the White House contributed to or signed off on the manual.
The manual does contain a disclaimer about its possible limits: "The views in this manual do not necessarily reflect the views of … the US government."
The manual was issued by the office of Stephen W. Preston, general counsel for the Pentagon and former chief attorney for the CIA. After six years overseeing the Obama administration's legal policy with respect to lethal drone attacks as well as the raid that killed Al Qaeda leader Osama bin Laden and the current war against the Islamic State, Preston resigned from the Pentagon in June following publication of the manual and has not been available for comment.
The manual has even drawn some criticism from the mainstream US media. On Aug. 10, a New York Times editorial declared: "Allowing this document to stand as guidance for commanders, government lawyers and officials of other nations would do severe damage to press freedoms."
The Times also dismissed the value of the manual's disclaimer about not necessarily reflecting the views of the US government: "That inane disclaimer won't stop commanders pointing to the manual when they find it convenient to silence the press. The White House should call on Secretary of Defense Ashton Carter to revise this section, which so clearly runs contrary to American law and principles."
Reporters Without Borders published an open letter to Secretary Carter calling on him to revise "dangerous language" of the Pentagon manual that suggests journalists can become "unprivileged belligerents," akin to spies or saboteurs.
The New York-based Committee to Protect Journalists in a critique of the manual writes, "By giving approval for the military to detain journalists on vague national security grounds, the manual is sending a disturbing message to dictatorships and democracies alike. The same accusations and threats to national security are routinely used to put journalists behind bars in nations like China, Ethiopia, Vietnam and Russia to name just a few."
Public attention to the new Pentagon manual came at an awkward time for US government officials. Secretary of State John Kerry was recently in Hanoi lecturing the Vietnamese to let up on oppressed journalists and release bloggers from jail.
In Iran, the US government has protested the trial of Washington Post reporter Jason Rezaian on spying charges and has marshaled international support behind demands for his release. United Nations human rights advocates called on Tehran to release Rezaian, declaring: "Journalists must be protected, not harassed, detained or prosecuted."
So, the new "law of war" manual suggests that we are seeing another case of American double standards, lecturing the world about principles that the US government chooses to ignore when its own perceived interests are seen as endangered.
The reality is that the US military has often taken questionable action against journalists, particularly Arab journalists working for US or third country agencies. AP photographer, Bilal Hussein, whose photo of insurgents firing on Marines in Fallujah in 2004 earned him a Pulitzer Prize, was detained by the US Marines and held two years without charges, evidence or explanation.
Al-Jazeera cameraman Sami al-Haj was detained in 2001 while covering a US offensive against the Taliban in Afghanistan. US military forces accused the Sudanese cameraman of being a financial courier for armed groups but never produced evidence to support the claims. Al-Haj was held for six years at the Guantanamo Bay prison.
Prior to releasing him, according to his lawyer, US military officials tried to compel al-Haj to spy on Al-Jazeera as a condition of his release.
In its 6,000-plus footnotes, the manual ignores these two cases. Instead it suggests its own perspective on how journalists covering conflicts should operate: "To avoid being mistaken for spies, journalists should act openly and with the permission of relevant authorities" -- advice that is both impractical and problematic.
For instance, how would the US military respond if "the permission of relevant authorities" came from a battlefield adversary? Would that be taken as prime facie evidence that the reporter was collaborating with the enemy?
Plus, in any war that I've covered from Vietnam to Iraq, I have never gone looking for "relevant authorities" in the fog of battle, as finding one would be as unlikely as it would be risky. Indeed, the more likely result if such a person was found would be for the reporter to be detained and prevented from doing his or her job rather than receiving some permission slip.
Such naive advice suggests the editors of this manual have had little experience in combat situations.
A False Comparison
When asked to give an example of when a reporter would be an "unprivileged belligerent," a senior Pentagon official pointed to the assassination of the Afghan rebel military commander Ahmad Shah Massoud in September 2001, but the two assassins were not real journalists; they were simply using that as a cover.
I was at Massoud's headquarters at the time and can confirm that the two assassins were Al Qaeda agents from Algeria posing as television journalists with explosives hidden in their camera. They could just as easily have posed as United Nations envoys or as mail couriers. They were not journalists.
Significantly, the manual does not list any current or former American war correspondents as consultants. Military legal experts from Britain, Canada, New Zealand and Australia are listed as having an input, as well as unspecified "distinguished scholars."
Whatever their vast knowledge, the manual's author -- as well as those scholars and other military legal experts -- apparently had little familiarity with, or regard for, the First Amendment to the US Constitution, which is supposed to guarantee freedom of the press.
Andrew Pearson, who was one of my colleagues at ABC News in Vietnam, observed: "When the Pentagon gets squeezed between stupid presidents and truth-telling journalists, the answer isn't jail for the journalist," though that seems to be the answer that the new manual favors.
"The Pentagon types don't learn that much out on the firing range about the Constitution, so somewhere along the way in our complicated 'democratic system,' there has to be protection for journalists against a Pentagon that thinks they're a dictatorship," Pearson added.
In an interview on NPR last Friday, a senior editor of the manual, Charles A. Allen, deputy general counsel for international affairs, could not respond to the question: "Can you give any examples of any cases of operations being jeopardized by journalists in say the last five wars?" Allen said he could not provide examples without referring to Pentagon files.
In fact, in Vietnam, Afghanistan and Iraq, I can remember only a very few infractions of the media rules by the thousands of journalists covering military operations.
A History of Distrust
Yet, it may be true that the tension between the military and the press will never cease, because both need each other but cannot grant the other what it really wants. The reporters want absolute freedom to print or film everything on the battlefield, while the military's mission is to fight and to win.
The generals would prefer the journalists to perform as organs of state propaganda to ensure popular support for the war or to undermine the enemy. But the journalist's purpose is to find and report the truth to the public, a mission not always compatible with successful warfare, which also relies on secrecy and deception.
As one World War II military censor in Washington described his view of appropriate media relations, "I wouldn't tell the press anything until the war is over, and then I'd tell them who won."
The US military's mistrust of the press goes back even further. As General William Tecumseh Sherman -- one of the Civil War's most aggressive and outspoken commanders -- declared: "I hate newspaper men. I regard them as spies, which in truth they are. If I killed them all, there would be news from hell before breakfast."
So, war correspondents struggle with the constant conflict between the public's right to know and the military zeal to keep things secret. One side fights for information and the other fights to deny or control it. The US military's legacy of suspicion and even hostility toward the media has been passed down through generations within military institutions like a family heirloom.
It is unlikely we will ever again find ourselves with the unfettered access to war that we had in Vietnam, my first experience as a war correspondent. At that time, the US government recognized the importance of journalists being allowed to do our jobs at our own risk. We were considered a necessary evil that had to be tolerated.
However, the Vietnam lesson for the US military was that images and the written word can inform the public with devastating effect and can lead to demands for accountability for war crimes as well as an erosion of popular support for the war. In other words, a well-informed public in a democracy might decide that the war was a bad idea and that it should be brought to an end short of victory.
War correspondents have short working lives and there is no tradition or means for passing on their knowledge and experience. However, the American news media must learn to represent themselves collectively with one voice on matters of access to information and censorship as represented in the Pentagon's "Law of War."
The news media should establish a working council of news representatives to meet with government and military officials to negotiate acceptable ground rules for the future. Number one on the agenda should be a rewrite of the Pentagon's "Law of War."
Don North is a veteran war correspondent who covered the Vietnam War and many other conflicts around the world. He is the author of a new book, Inappropriate Conduct, the story of a World War II correspondent whose career was crushed by the intrigue he uncovered.
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