Pentagon revises war manual to emphasize protections for journalists

Sophie Murguia | Newsgathering | News | July 28, 2016

The Pentagon has updated its Law of War manual to clarify that journalists are generally protected as civilians under international law. The changes, announced last week, came after media groups expressed concern that some language in the original version could put reporters at risk of being considered spies or combatants.

The manual, first released in 2015, is the Department of Defense’s guide to international law as it applies to the U.S. military. The original manual drew criticism for saying that although journalists are usually civilians, they can sometimes be “unprivileged belligerents” — a category that includes guerrillas and spies.

Because unprivileged belligerents do not have the same legal protections as either combatants or civilians, some media organizations argued that the categorization could be used as an excuse to indefinitely detain journalists without charges.

The Defense Department said at the time that it never intended to suggest that ordinary journalists were “unprivileged belligerents.” Instead, the language was meant to refer to spies who pretended to be reporters or journalists who left their roles to become combatants.

Press freedom groups also objected to a section that said newsgathering “can be very similar to collecting intelligence or even spying” and recommended that journalists work “with the permission of relevant authorities.”

“As any conflict reporter knows, the idea of finding relevant authorities and seeking permission to report on a battlefield would be as unlikely as it would be unwise,” Frank Smyth, senior adviser for journalism security for the Committee to Protect Journalists, wrote on the CPJ website. “Who constitutes relevant authorities is often impossible to determine in shifting battle lines.”

Journalists also worried about a part of the manual that said governments “may need to censor journalists’ work or take other security measures so that journalists do not reveal sensitive information to the enemy.”

After the original manual’s release, the Department of Defense met with media groups, including CPJ and the Reporters Committee, to discuss their concerns. In a press release, Pentagon representatives said that journalists’ suggestions influenced the manual’s revision.

“The Department of Defense is a learning institution,” the Pentagon’s press secretary Peter Cook said. “We appreciate the willingness of journalists to constructively share their concerns with the department’s lawyers.”

In updating the manual, Pentagon lawyers removed much of the language that media groups found objectionable, including the portions that compared journalism to spying. The manual now emphasizes the importance of journalists’ role and clarifies that “journalism is regarded as a civilian activity.”

The revised manual is more careful to distinguish between civilian journalists and combatants who perform work that seems similar to journalism — for example, a soldier in a public affairs role or a member of a terrorist group spreading propaganda.

The manual’s authors note that “engaging in journalism would not be a basis to consider a person an unprivileged belligerent” but journalists’ status can change if they choose to directly involve themselves in conflicts as combatants. For instance, the manual says that journalists would not be protected as civilians if they communicated information for the purpose of directing an artillery strike against an enemy.

The Defense Department also removed the broadly worded reference to censorship, saying instead that governments can take steps to avoid revealing “sensitive military information” about topics such as unit locations and numbers of personnel.

“For example, military security ground rules may be developed for media personnel,” the manual says.

David Glazier, a Loyola Law School professor who studies the law of war, said the revisions reflect a change in language and tone rather than a change in legal content.

“To me, the problem with the initial version is that it highlighted very strongly upfront the possibility that journalists could be unprivileged belligerents,” he said. He said the original manual’s language might have increased risks for reporters by encouraging readers “to be particularly wary of journalists.”

Although the Pentagon has removed most of this language from the manual’s section on journalists, Glazier criticized another part of the manual that lists “false use of journalist credentials” as an example of a deception that governments could be allowed to use. Glazier worried that the language could encourage military commanders to consider impersonating reporters as a potential spying tactic, a practice that could pose risks for actual journalists.

“It unnecessarily invites suspicion that journalists may actually be spies or saboteurs,” Glazier said.

Courtney Radsch, CPJ’s advocacy director, hailed the manual’s revisions as an important step for protecting the rights of journalists.

“It really emphasized the fact that consultation with NGOs and with media organizations and journalists should be an essential part of any sort of policy document that has an impact on them,” Radsch said. “I think the Pentagon was pretty receptive to that, as evidenced by the changes.”