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Department of Defense Laws of War Manual Leaves Journalists in the Line of Fire

Matt Robbins and Bryan Denton met in Marjah, Afghanistan, in 2010. It was mid-February, and the U.S.-led offensive to drive the Taliban from a stronghold in the country’s south had just begun.

Neither remembers the exact day the then 19-year-old marine from Alabama caught a glimpse of the towering 6-foot-6, 27-year-old freelance photographer from California. But the two recall almost word for word what Robbins first said to Denton.

“You aren’t taking pictures of dead bodies, are you? Because I am liable to fucking shoot you if you do.”

Robbins, backed by a military mission, was in Afghanistan driving current events. Denton, owing his presence to the public’s belief in a fourth estate, was documenting it.

The two men, now 25 and 32, have since stayed in touch. Robbins, whose broad shoulders are a testament to his time with his infantry battalion, is now a photojournalism student at the University of Montana. Denton works primarily with The New York Times and has offered career advice to the aspiring photographer.

The irony of Robbins’ initial words is not lost on either of them.

The marine-turned-journalist says he was young at the time and was still processing his worldviews.

“I didn’t understand how journalism played such a big role. I thought in black and white. They are trying to kill us and civilians are here taking pictures,” Robbins said about his mindset as a soldier on the frontline. Though he still offers fairly conservative views on media access to the battlefield, he now thinks there is a place for journalists in combat zones.

While cooler heads prevail in times of peace, the question remains what rules, precisely, should govern the tension between the military and the press when they meet on the battlefield.

Journalists and press freedom advocates are currently demanding that the U.S. Department of Defense (DoD) rescind or at least rewrite guidelines regarding journalists outlined in the June 2015 release of the first ever DoD-wide Law of War Manual.

The press corps is unnerved by the manual’s guidelines that spell out the potential for journalists to be classified as “unprivileged belligerents,” defined as “persons engaging in spying, sabotage, and similar acts behind enemy lines or private persons engaging in hostilities.” The guidelines also remove “rights afforded to enemy combatants.” Reporting on military operations can be “very similar to collecting intelligence or even spying,” the manual’s authors go on to say.

Journalists are mentioned on no more than nine pages in the almost 1,200-page document, but the pithy text is enough for the media to decry the manual as a dangerous affront to the profession.

“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,” wrote Frank Smyth, a senior adviser for the New York-based Committee to Protect Journalists (CPJ), in a scathing analysis of the manual.

Reporters fear the wording puts them on ambiguous footing.

“I worry the military is trying to remove their responsibility,” said Jackie Spinner, a former reporter for The Washington Post who covered the wars in Afghanistan and Iraq. “It’s too easy for them to say ‘that wasn’t really a journalist—that was a spy.’ Who is a spy and what does that mean?”

Others are afraid that the rule adds a degree of aggression to an already dangerous situation.

“In some ways it feels like open season on journalists right now,” said Holly Pickett, a University of Montana graduate and photojournalist based in Istanbul who has covered several war-torn countries with U.S. military presence, including Iraq and Afghanistan.

“What’s troubling to me is that’s how dictatorships and other governments do see journalists, as belligerents and fair game as far as being a target. That’s what’s troubling, puts us in the same category and gives other governments justification that journalists are spies and helping one side or another.”

The publication of the Pentagon’s Laws of War coincided with what advocacy groups characterize as a worldwide deterioration of the freedom of information. Two-thirds of the 180 countries surveyed for Reporters Without Borders’ 2015 World Press Freedom Index performed worse than in the previous year. The United States dropped three places to 49th place.

The Pentagon has fielded several press inquiries regarding journalists’ concerns since the manual’s release. It consistently responded that the manual has been misinterpreted and emphasized its commitment to the freedom of the press. Yet DoD spokesman Army Lt. Col. Joe Sowers stated in an email that concerns raised by members of the fourth estate will be taken into consideration in future versions of the manual.

“Our plan is to update the manual on a regular basis,” he said, adding that DoD officials were meeting with bureau chiefs as part of “ongoing efforts to understand the concerns that have been raised by journalists and to seek to clarify misconceptions.”

Two of the organizations that have been the most outspoken about the manual, the CPJ and The New York Times, both told Montana Journalism Review they had not been approached by the Pentagon as of October 2015.

Smyth suspects the language used in the manual cuts at deeper issues with reporting that make the U.S. government uneasy.

“The real issue is the Pentagon wants the ability to jail anyone who has a relation with an insurgent group,” he said. Smyth specifically referred to journalists from other countries, explaining that in order for a reporter to tell all sides of a story, it is often necessary to have contacts with groups the U.S. government might classify as insurgent or terrorist organizations.

In fact, the manual could prove most formidable for local journalists who bear the greatest risks in reporting on conflict. Naseer Nouri, an Iraqi native and former correspondent, translator and fixer for the Washington Post, said U.S. military authorities often are more wary of local journalists than of their American colleagues.

“Suspicion comes first,” he said. “They look at them like they are bad unless they prove otherwise.”

On the other hand, Barry Johnson, a retired army colonel who served as a public affairs officer in Iraq during four combat tours, says he has personally come up against the issue of insurgents posing as journalists.

Some individuals with press credentials, he claims, have either been forced or chosen to work with groups the U.S. labels as the enemy, which puts soldiers’ lives at risk.

“Part of the reality of warfare today is that they aren’t looking for tactical victories. They aren’t looking to beat us on the ground,” Johnson said. “They need journalists.”

While Johnson understands the uproar the manual has created, he thinks even if the wording was changed or deleted, it would leave a grey area unaccounted for in conflict zones.

“What I believe is really lacking on both sides on military and journalist organizations is a real sincere discussion of what it means to report in war zones. It’s not what is was before.”

Indeed, while the manual could engender dangerous consequences for journalists risking their lives as eyewitnesses, it is also seen as a reflection of the changing dimensions of warfare. Since World War I, U.S. journalists have been adapting to evolving military policy. Now they face an era where wars are waged virtually, via YouTube, or remotely, through drones.

The drone program, currently operated in Pakistan, Yemen and Somalia, keeps U.S. troops out of harm’s way but is denounced for its lack of transparency and civilian death tolls. By default, it removes Western journalists from the battlefield, placing more of a burden on local journalists to cover these no-go zones. That’s why Denton, the photojournalist, thinks the new manual hasn’t made a bigger splash in some journalism circles.

“As ominous as it is, most of us haven’t heard because we haven’t rubbed against it,” he said. “Local press that could be declared unprivileged belligerents under these newer flexible rules of engagement would likely be in increased danger.”

As the U.S. military shifts from deploying ground troops to assisting local forces on a case-by-case basis, journalists witnessing battles increasingly find themselves on shaky ground.
Sig Christenson, a veteran journalist who embedded with troops in Iraq and Afghanistan, is adamant that if the Pentagon does not reassess its rules of war manual regarding the press, a public relations nightmare or worse is waiting to happen. He draws on personal experience from his time in Afghanistan to create a possible scenario of how ambiguous language can be interpreted and used as a form of control.

“We were in the middle of a battle in downtown Kabul when the Taliban came in and tried to take down [former Afghan President Hamid] Karzai and blow up a mall,” Christenson said.

“What would have happened if a commander came up to us and said, ‘Who the hell are you and what are you doing?’ What if he said, ‘I am not sure who you are. I think you are an unprivileged belligerent and I am taking you into custody.’ That is a form of control that is extremely dangerous and creates a situation that everyone is sorry for later.”

Christenson, who is also president of the Military Reporters and Editors Association, an organization with a mission to ensure that journalists have access to places where the U.S. military and its allies operate, believes the Pentagon likely did not intend to wage war on the press. The DoD was attempting to protect itself against threats from unidentified sources, he said.

“Let’s face it, they do have a problem,” he said. “The military in these places do not know who the enemy is.” But Christenson stresses that the war manual’s language will not end up protecting anyone.

“I understand that language and guarantee you that language is trouble,” he said. “Because one day, a local commander will do something hot-headed. This will create an incident that someone at the very top will have to fix. You can see this mess coming from a mile away.”

The war manual in its current form just doesn’t make sense and will have to be rethought, agrees Colleen McGuire, a retired brigadier general and University of Montana graduate.

McGuire frequently worked with the press throughout her military career and in 2010 was appointed the Army’s Provost Marshal General. If the U.S. hopes to keep the often tectonic-plate-like relationship between the armed forces and their watchdogs from combusting, clearer rules are needed, she said.

“If it’s confusing to journalists, then it would be confusing to a commander in the field,” McGuire said. “The Department of Defense needs to go back to the chalkboard.”

Katie Riordan is a freelance journalist currently pursuing a master’s degree in Environmental Science and Natural Resource Journalism at the University of Montana. She has reported from Yemen and the Horn of Africa.