New U.S. Law of War Manual has media up in arms

A new Department of Defense manual on the law of war has some in the media concerned it gives license to military commanders to detain journalists as “unprivileged belligerents” for any number of perceived offenses.

“In general, journalists are civilians,” according to the Law of War Manual, which pulls together all international laws on war applicable to the U.S. armed forces and is designed as a reference guide for the military. But the document goes on to add 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” under the international law of war is not entitled to the rights afforded by the Geneva Conventions to lawful combatants and could be detained by the military and prosecuted under U.S. law.

“Reporting on military operations can be very similar to collecting intelligence or even spying,” the manual adds. “A journalist who acts as a spy may be subject to security measures and punished if captured.”

Several media organizations object to the manual’s wording.

“I’m troubled by the label ‘unprivileged belligerents,’ which seems particularly hostile,” said Kathleen Carroll, the Associated Press’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 New York Times editorial board on Aug. 10 called ludicrous the argument that some reporting activities could be construed as hostile.

“That vaguely-worded standard could be abused by military officers to censor or even target journalists,” the Times warned.

But many military lawyers and other experts in the law of war believe the concerns expressed byAP and Times editors are overblown.

“The law of war manual is not some wacky, anti-journalist manual,” said Charles Stimson, manager of the National Security Law Program at the Heritage Foundation and a former military trial judge in the U.S. Navy, where he holds the rank of captain. “It’s a snapshot of the law of war internationally, as it exists today and … as it has existed for a long time with respect to enemies.”

Stimson said there is a natural tension between the media and the military, but the military has gone to great lengths—through programs such as embedding journalists with military units—to allow the media to report on things to which they would not previously have been granted access. Any conflicts between military operational security and what a reporter finds newsworthy can be worked out, he said.

“I cannot blame the military for saying, look you’ve crossed the line here, that wasn’t the agreement,” Stimson added. “And I can’t blame the journalist for saying, no I thought that was the agreement and this is newsworthy even though you don’t think it’s newsworthy. There’s always going to be a natural tension there.”

Detaining a journalist as an “unprivileged belligerent” would only occur under circumstances in which the military believed a journalist might be gathering material under false pretenses and providing that to an enemy, Stimson said. Such a determination would be made at the highest levels of the military or even the White House itself.

Commanders in the field might even find their careers in jeopardy if they decided to detain a journalist as an “unprivileged belligerent.”

“[If a] reporter reports something that’s unflattering and you decide to use the nuclear option, call them an unprivileged enemy belligerent—which is not going to happen—then your career is over,” Stimson predicted. “You might even get court martialed, by the way.”

The Associated Press contributed to this story.