Excerpt from: The Guardian
War reporters like the late James Foley could, under a new document circulated by the US Defense Department, be held liable for ‘engaging in hostilities’ – ambiguous language that worries many in the press.
Alan Yuhas in New York
Tuesday 11 August 2015 18.04 EDT Last modified on Wednesday 12 August 2015 18.09 EDT
An international press freedom group has called on US defense secretary Ash Carter to revise “dangerous” language of a new Pentagon manual that says journalists can become “unprivileged belligerents” akin to spies or saboteurs.
Reporters Without Borders (RWB) published an open letter to Carter on Tuesday in response to the Department of Defense’s first Law of War Manual, which has provoked outrage among journalists for saying war reporters may be held liable for “engaging in hostilities” or “spying, sabotage and similar acts behind enemy lines”.
“This terminology leaves too much room for interpretation, putting journalists in a dangerous position,” Reporters Without Borders secretary-general Christophe Deloire wrote in the letter.
“Likening journalistic activity to spying is just the kind of ammunition certain repressive countries like Iran, Syria and China would seek out to support their practices of censorship and criminalization of journalists.”
“It’s very threatening,” Vanessa Gezari, managing editor at Columbia Journalism Review who has reported extensively on the war in Afghanistan, told the Guardian. “I believe it contradicts at least the spirit of customary battlefield relationships, if not the letter.”
“The relationship between journalists and combatants has always been complicated,” she said. “The way the language about spying is placed in there is alarming to me in that it says, ‘journalism is a lot like spying’ and then it leaves that to people to make up their own mind. It gets at the commonalities but not the differences.”
“It’s really quite disturbing,” Frank Smyth, senior adviser for journalist security at the Committee to Protect Journalists (CPJ), said. Both RWB and the CPJ estimate that the majority of journalists killed in 2014 died in war zones.
“It’s speculative, it’s ambiguous, it’s arbitrary,” said Mickey Osterreicher, general counsel for the National Press Photographers Association. “I don’t think it’s helpful at all.”
The editorial board at The New York Times echoed the criticism, deeming some of the manual’s arguments “ludicrous”.
The 1,180-page document only vaguely describes when a journalist might be held liable without protections of either a soldier or a civilian. “In general, journalists are civilians,” the manual reads, but “like other civilians, civilian journalists who engage in hostilities against a State, may be punished by that State after a fair trial”.
The manual then says that simple “relaying of information” may constitute such an act.
Army Lt Col Joe Sowers, a spokesman for the Department of Defense, said that such information relaying could include “acting as an artillery spotter” or as “a guide or lookout for combatants”.
The phrase “unprivileged belligerents” appears to derive from “unlawful combatants”, a legal term used by the George W Bush administration to describe some prisoners taken on the battlefield. Sowers said the difference between terms is “largely a stylistic one”.
“Reporting on military operations can be very similar to collecting intelligence or even spying,” the manual continues. “A journalist who acts as a spy may be subject to security measures and punished if captured.”
Smyth criticized the manual in particular for its many referential footnotes, which he says “ignore the most basic cases” involving press freedoms and journalists.
One such footnote quotes a 2000 review on the Nato bombing of Yugoslavia: “Whether the media constitutes a legitimate target group is a debatable issue.
“If the media is used to incite crimes, as in Rwanda, then it is a legitimate target. If it is merely disseminating propaganda to generate support for the war effort, it is not a legitimate target.”
The manual suggests journalists avoid spying accusations by gaining permission to report from “relevant authorities”, but does not provide guidelines about chaotic conflict zones such as central Mexico, Syria and northern Iraq, and eastern Ukraine, where factions have attacked and captured accredited journalists.
“Anyone who’s been in a conflict zone knows that’s not how conflict zones work,” said Smyth, who was himself captured and accused of spying by Iraq during the Gulf war.
The Pentagon also implies that reporters should submit all their relevant work for review and possible censorship, “so that journalists do not reveal sensitive information to the enemy”.
Osterreicher and Smyth agreed that the language was overly broad, and said that the military and press have delayed reporting or kept major stories under wraps on request. “We’re not saying there should be no limits to reporting,” Smyth said. “Journalists have a responsibility to the public and safety.”
“There’s always been that tension between reporting on things that the military might not want reported,” Osterreicher said. “The military may complain that the reporting is too much but that’s the inherent nature of journalism. It’s gadfly of the government itself, and our forefathers recognized that.”
Sowers said that the Pentagon “supports and respects the protections afforded to journalists under the law of war”.
The manual “does not create new policy, nor is it directive in nature”, he said, framing it as “a resource on the laws of war primarily for the DoD legal community”.
He also disputed critics’ characterization that the manual affords military commanders any special discretion, saying that the manual “is not an authorization for any person to take any particular action related to journalists or anyone else”.
The manual includes a disclaimer about its limits. “The views in this manual do not necessarily reflect the views of those departments or the US government as a whole,” the authors write in the preface.
The disclaimer did little to allay Deloire’s fears. “Even if the authors of the manual have themselves disclaimed its legal value,” he wrote, “the nearly 2,000-page document still has the potential to influence the interpretation and application of the law to US military forces.”
The manual was issued by the office of Stephen Preston, then general counsel for the Pentagon and the former chief attorney for the CIA. Preston resigned in June after six years overseeing the Obama administration’s legal policy with respect to drones, the raid on Osama bin Laden and the war against Isis in Iraq.
The document’s authors also note that they received commentary and advice from the UK, Australia, New Zealand and Canada – the allies known with the US as the Five Eyes for the close coordination of their security agencies.
During the Bush administration’s war in Iraq the US military detained several Iraqi journalists, some of whom worked for established international news organizations like the AP, Reuters and AFP. All were released without charges, though Pulitzer-winning photographer Bilal Hussein was held for two years.
Of more concern than US military action, critics of the manual say, is that authoritarian regimes – including not just countries like Russia but also US allies such as Egypt and economic bedfellows such as China – will use the manual as a justification to crack down further on journalists.
Sowers said the Defense Department does not believe such regimes will use the manual, “and that was certainly not our intent”, although at least one Kremlin-owned news organization has reported on it. Sowers added that the Pentagon welcomes the criticism.