The Pentagon has adopted a “law of war manual” [PDF], which enables commanders to treat journalists as “unprivileged belligerents.” It suggests that correspondents who report some information about combat operations may be taking “direct part in hostilities,” a disturbing argument for justifying the killing of reporters in war zones. There also is a part of the manual that encourages journalists to submit to censorship of news reports that might aid enemies.
On July 31, the Committee to Protect Journalists published an analysis on the Pentagon’s weak justifications for treating journalists as spies. The New York Times Editorial Board also condemned the guidelines in an August 10 editorial.
To add to the CPJ’s analysis and the Times editorial, the guidelines essentially codify a United States government mindset which led to President Barack Obama’s administration personally requesting Yemen President Ali Abdullah Saleh keep a journalist, Abdulelah Haider Shaye, jailed.
There also is the issue of the military prosecution of Chelsea Manning, who provided just over a half million documents to WikiLeaks. The military charged her with “aiding the enemy,” and a line can be drawn from how the military prosecuted her to the guidelines in this manual.
The manual claims, “Reporting on military operations can be very similar to collecting intelligence or even spying.” It instructs journalists to “avoid being mistaken for spies” by acting openly and “with the permission of relevant authorities.” Supposedly, this can be done by presenting “identification documents” given to “authorized war correspondents” (though it is unclear how one might do this when if they are about to be wrongfully targeted in a drone strike).
“States may need to censor journalists’ work or take other security measures so that journalists do not reveal sensitive information to the enemy,” the manual claims. “Under the law of war, there is no special right for journalists to enter a state’s territory without its consent or to access areas of military operations without the consent of the state conducting those operations.”
Widney Brown, Amnesty International senior director for international law and policy, explained the government’s theory in Manning’s case that “making information available on the internet—whether through Wikileaks, in a personal blog posting, or on the website of The New York Times — can amount to ‘aiding the enemy.'”
Although Manning was acquitted of the “aiding the enemy” charge, military prosecutors spent hours during the court-martial alleging Manning had aided al-Qaida and other terrorist groups without ever having to prove that Manning was sympathetic toward terrorists. The fact that terrorists, particularly Osama bin Laden, could download classified US documents from WikiLeaks and read them was seen as aiding terrorism. In this equation, that made WikiLeaks and aider and abettor of terrorism as well.
What if a journalist wants to publish a story about soldiers who are not getting the proper equipment to protect them in a province of Iraq? What if the journalist speaks to sources on the ground and uncovers a story of corruption? Is that story revealing details about the lack of equipment going to lead to the journalist being treated as an “unprivileged belligerent” or someone who is no better than “enemies”?
Journalist Glenn Greenwald reported in September 2012 the US military investigated a US air force systems analyst, who supported WikiLeaks and Manning, for “communicating with the enemy.” WikiLeaks was labeled an “anti-US or anti-military group” in documents from the investigation.
The US government has engaged in an unprecedented crackdown on whistleblowers and individuals who have leaked classified information. Government agencies have fine-tuned polygraph exams to spot individuals, who may potentially leak or talk to reporters about their job. The Justice Department has issued broad subpoenas to sweep up the records of hundreds of journalists at media organizations, such as the Associated Press, when investigating leaks. There have been senators and congressmen from the Republican Party calling for journalists who publish leaks to be arrested. Underpinning contempt for freedom of the press is the belief in the need for more information control.
In the Afghanistan and Iraq Wars, the Pentagon managed to convince numerous journalists to embed with military forces. This enabled the Pentagon to influence journalists to write narratives of military occupation and warfare germane to the Pentagon’s agenda. Yet, what if journalists are more reluctant to embed and reproduce the story the Pentagon wants told?
What if a journalist wants to not only interview US commanders but also commanders of forces, which the US military may be fighting? And what if a journalist wants to talk to these commanders to present a fuller picture of an ongoing war, including why an enemy force may be gaining strength in spite of claims by the US that a coalition is winning?
It seems the answer may be that such a journalist could end up like Abdulelah Haider Shaye.
Shaye reported on what happened in the attack on al-Majalah, which killed dozens of women and children in December 2009. His lawyer, Abdulrahman Barman, told me in an interview in 2012, “Abdulelah was beaten up and kidnapped [in June 2010] by the national security agency and he was asked to shut up and be silent and not to talk about these kind of issues.”
Journalist Jeremy Scahill reported in his book, “Dirty Wars,” after he was released, he went on television to describe what happened. US government officials privately told “major US media outlets that were working with Shaye that they should discontinue their relationships with him.” The government alleged he was “using his paychecks to support [al-Qaida].”
Shaye was kidnapped by national security agency people. He was beaten, dragged, and held for thirty-five days incommunicado while activists protested his detention in front of intelligence services and judicial system buildings. Then, Shaye was held in solitary confinement for a period, denied access to his lawyer, and subjected to psychological torture and abuse and appeared in a cage before a special tribunal on September 22, 2010.
The judge read the charges he faced, which included “being the ‘media man’ for al-Qaida, recruiting new operatives for the group and providing al-Qaida with photos of Yemeni bases and foreign embassies for potential targeting.”
According to Scahill, when Shaye heard the charges, he reacted, “When they hid murderers of children and women in Abyan, when I revealed the locations and camps of nomads and civilians in Abyan, Shabwah and Arhab when they were going to be hit by cruise missiles, it was on that day they decided to arrest me … You notice in the court how they have turned all of my journalistic contributions into accusations. All of my journalist constributions and quotations to international reporters and news channels have been turned into accusations.”
And, as he was dragged off by security, he shouted, “Yemen, this is a place where, when a young journalist becomes successful, he is viewed with suspicion.”
In January 2011, he was convicted and sentenced to five years in prison and two years of house arrest in his hometown. Shaye went on hunger strike in November of that year. President Saleh planned to release Shaye, but Obama called Saleh and requested that Shaye be kept in prison.
US Ambassador to Sanaa Gerald Feierstein claimed, “Haidar Shaye is in jail because he was facilitating [al-Qaida] and its planning for attacks on Americans and therefore we have a very direct interest in his case and his imprisonment,” despite the fact that no evidence confirming this allegation had ever been presented.
Kat Craig of Reprieve described the effect of Shaye’s imprisonment on Yemeni journalists:
Yemeni journalists have repeatedly expressed their lingering fear over America’s meddling in Shaye’s case. Many became afraid to report on air strikes. One Yemeni journalist, like Shaye a specialist on [al-Qaida], renamed himself an “analyst of Islamic groups” and refused to do TV interviews especially with Al Jazeera after what happened to Shaye.
Shaye was finally released in July 2013 but was prohibited from leaving Sanaa.
While this may be an extreme example, the guidelines in the Pentagon’s law of war manual further enable this kind of proxy detention of journalists that has already taken place in US wars.
The manual may also make it more permissible for military officers to subject a journalist to harsh interrogation. For example, Al Jazeera journalist Salah Hassan was tortured at Abu Ghraib.
Journalists who work for outlets like Al Jazeera, which the government has historically deemed as propaganda, could find themselves being targeted even more. President George W. Bush reportedly considered bombing the Qatar-based organization. Al Jazeera journalist Sami al-Haj was detained and brought to Guantanamo Bay prison in 2002. Al-Haj was imprisoned until 2008. US military forces fired upon a building that was clearly marked a media center and killed Tareq Ayyoub, an Al Jazeera journalist. The attack also injured Zouhair Nadhim, an Al Jazeera cameraman.
When were they given the opportunity to show credentials and prove they were journalists?
Recall, Manning disclosed a video of an Apache helicopter attack in Baghdad, which shows the bloodlust of soldiers proud to have killed two Reuters journalists. The journalists did not have a chance to provide their ID before they were attacked.
The CPJ analysis points out that a UN report to the International Criminal Tribunal for the former Yugoslavia is cited. Specifically, this section:
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.
Who differentiates and how does one differentiate between inciting crimes and disseminating propaganda to generate support for the war effort? It would seem such journalism could be easily confused, and one would not know they crossed over into inciting crime until they were blown to pieces by a Hellfire missile.
Overall, this is deeply troubling for all journalists. It gives the Pentagon a license to target and kill, detain and arrest journalists, or at best revoke credentials of journalists determined to be illegitimate. It opens up journalists to a whole host of risks, which undoubtedly discourage journalists from engaging in reporting in war zones. And it may even encourage other governments to follow suit and treat journalists like the Pentagon, which means there will be an escalation in the number of journalists killed while covering wars.