© 2019 by Nate Granzow

Traitor. Spy. Reporter? DoD's Law of War Manual Dangerously Ambiguous

September 12, 2015

We love our 1st Amendment. If not for our guaranteed freedom of speech, untold amounts of classic literature, groundbreaking journalism, and public protest leading to social change could have been suppressed. But despite how inextricably linked that right is to our culture and way of life, it's been under attack from the moment it was conceived. President John Adams, despite being one of the founders who signed and helped draft our beloved Constitution, was one of the first to threaten it. He signed into law the Alien and Sedition Acts, a series of bills that restricted free speech during times of war under the pretext of improving national security. It's pretty clear now that it was really intended to silence political opposition to the Federalist government. Dick move, John.

 

Although Thomas Jefferson let the legislation expire under his presidency, the same principle reappeared a century later in the form of the Sedition Act of 1918, which "forbade the use of disloyal, profane, scurrilous, or abusive language about the United States government, its flag, or its armed forces, or that caused others to view the American government or its institutions with contempt." That's a pretty vague rulebook, and one can easily see where it presents opportunities—like McCarthy's Red Scares—for baseless accusations to fester, political opponents to be slandered, and those neighbors you never liked hauled off under allegations of treason.

 

Given these precedents, I think it's reasonable for the Committee to Protect Journalists (CPJ) to become a little defensive upon reading the rather loosely worded Law of War Manual recently released by the U.S. Department of Defense. According to the CPJ, "The results [of the manual] are not encouraging for journalists who, the documents state, may be treated as 'unprivileged belligerents.' This broad and poorly defined category gives U.S. military commanders across all services the purported right to at least detain journalists without charge, and without any apparent need to show evidence or bring a suspect to trial." In other words, the Pentagon, with their rather careless wording, has potentially lumped journalists in with spies, saboteurs, and guerrillas. 

 

The manual reads, "In general, journalists are civilians. However, journalists may be members of the armed forces, persons authorized to accompany the armed forces, or unprivileged belligerents." In layman's terms, according to the DoD, journalists can be civilian journalists, embedded journalists, soldiers, or enemy fighters.

 

To me, this line is the biggest hang-up of the entire document. First, I can think of only a couple of publications that employ active-duty soldiers to write for them, and those writers aren't going around war zones unarmed, waving a press badge. When they're on the battlefield, they're not reporting, they're fighting. They are combatants, soldiers who may write about their experiences later. Most refuse the title of journalist in any capacity. If they get captured by the enemy, they're going to be treated as captured soldiers, not reporters (although the distinction these days is becoming more and more nebulous, as reporters and soldiers alike are being brutally put to death). So the bit about journalists being members of the armed forces? I don't see it.

 

Then, that last bit about the possibility of journalists being unprivileged belligerents? Also problematic. If a journalist is aiding and abetting the enemy, they're no longer journalists, they're enemy combatants. To indicate that they can be both actually endangers journalists as a whole and casts doubt on the entire profession. 

 

Drop those two descriptions, and you're left with only reporters who are civilians. So why would the DoD try to establish some distinction of journalists as a unique class? They're non-combatants. Under the same protected class as medical professionals. Conversely, if they're combatants, they're not journalists. See how easy that was?

 

Another footnote in the manual that is of particular concern is the following: "As an initial matter, it is an established law of war norm, which is reflected in Article 79 of Additional Protocol I to the Geneva Conventions, that ‘journalists’ are generally to be protected as ‘civilians.’ Although the United States is not a party to Additional Protocol I, it supports and respects this important principle.” That's great that they acknowledge this rather crucial fact, but it does seem peculiar that they feel it necessary to make note that the United States is not party to the protocol. That, again, sounds like a loophole. An opportunity for exploitation. "We'd like everyone in our service to respect the generally protected status of journalists, but we don't really have to."

 

So already, I'm seeing where the CPJ may have reason to be alarmed. The DoD has inadvertently (we hope) made a journalist's job of reporting the truth more difficult. If an article tells the truth but portrays our armed forces in a negative light, is it any less truthful? Is that journalist going to be lumped in with enemy belligerents for making such a story known?

 

Then I read this: "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." First, the manual makes note that reporting in a war zone can be similar to spying, then it says that a journalist caught spying can be punished accordingly. That, to me, sounds unusually suggestive. They indicate a strong similarity between crucially disparate fields—journalism and spycraft—which can only negatively impact the way journalists are perceived, and by extension, treated, on the battlefield.

 

Some might think this entire thing is being blown out of proportion. I mean, this article is focused on a couple of sentences and ambiguous word choices. That's it. However, generalizations and vague concepts mean loopholes when it comes to rulebooks. To say that journalists may be unprivileged belligerents—the same title assigned to spies—permits those unfriendly to the media to ignore the conventional notion that journalists are impartial observers to conflict and instead treat them as though they're a member of a hostile force. That means that not only do journalists today have to worry about losing their head to a crazed jihadi, they now have to worry about their treatment at the hands of their countrymen.

 

All of this confusion could have been avoided by simply stating, "If a civilian (journalists included) actively aids the enemy by way of spying on their behalf, passing along critical information to them that could be used to provide advantage to the enemy, or actively fighting on behalf of an enemy force, they are no longer considered civilians, but enemy belligerents." Boom. Done.

 

(Featured image courtesy of slate.com)

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