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 “unprivileged belligerent” is not entitled to the rights afforded by the Geneva Convention so 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 terrorists or spies could be masquerading as reporters, or warn against someone who works for jihadist websites or other publications, such as al-Qaida’s “Inspire” magazine, that can be used to encourage or recruit militants.
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.
“I’m troubled by the label ‘unprivileged belligerents,’ which seems particularly hostile,” said Kathleen Carroll, AP’s executive editor. “It sounds much too easy to slap that label on a journalist if you don’t like their work, a convenient tool for those who want to fight wars without any outside scrutiny.”
The history of war is replete with tension between military commanders and the journalists who cover them. War reporting is meant to train an independent eye on combat – its horrors as well as its heroics, as close as possible to the action without interference from commanders. That can place journalists, who sometimes rely on the military for their own security, at odds with officers who may see openness and access as potential threats to their troops’ security and to battlefield success.
The nature of the problem has evolved over time. In conflicts like World War II, in which each side fought under generally accepted rules like wearing uniforms, the U.S. military and the media worked out guidelines for coverage, which included official censorship. Today’s battlefields in Iraq and elsewhere are more complex and fluid, with front lines less well defined, greater ability for remote and instant communication, and combatants who are not always distinguishable from civilians.
A system of “embedding” journalists with U.S. military units was formalized during the 2003 U.S. invasion of Iraq, providing a measure of security for the journalists while imposing security restrictions and giving commanders control over the journalists’ movements. It’s unclear whether the Pentagon’s amended Law of War manual will change that relationship; Pentagon officials insist it should not.
Journalists working for The Associated Press and other news organizations have been detained or thrown out of embed arrangements for stories, video or photographs that the military found unflattering, even before the new manual was published on June 21. But the manual has raised concerns that commanders would feel even more free to find fault with reporting — or that other governments might use the U.S. rules to mistreat reporters working on their soil.
The Law of War manual pulls together all international laws on war applicable to the U.S. armed forces, and is designed as a reference guide for the military.
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.
“At a time when international leadership on human rights and press freedom is most needed, the Pentagon has produced a self-serving document that is unfortunately helping to lower the bar,” wrote Frank Smyth, senior adviser for journalist security at the Committee to Protect Journalists.
Associated Press writers Lolita C. Baldor and Robert Burns in Washington contributed to this report.
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