In June, the US Department of Defense released its "Law of War Manual," within which the Pentagon states clearly that journalists may be "unprivileged belligerents," which leaves those reporting on the military in any capacity open to be treated the same as spies - or even terrorists.
"Unprivileged belligerent" is a legal term that can be applied to combatants (people who are not soldiers in a state-sanctioned military) in a conflict, who are given even fewer protections than combatants openly participating in war.
Simply by reporting on the US military in a way the Pentagon interprets as "dangerous," journalists could be left open to censorship, incarceration or even the death penalty.
The manual says journalists can be captured and held by the military for "engaging in hostilities," "spying" or "sabotage and similar acts behind enemy lines."
"Reporting on military operations can be very similar to collecting intelligence or even spying," the Pentagon's manual states. Thus, by its newly crafted logic, the Pentagon is officially requesting that journalists "act openly and with the permission of relevant authorities."
The manual adds, "A journalist who acts as a spy may be subject to security measures and punished if captured." It is unclear what differentiates "spying" from investigative reporting.
Todd Pierce is a retired major in the US Army Judge Advocate General (JAG) Corps. He wrote of the Pentagon's manual, "That means journalists can be killed as can any enemy soldier in wartime. 'Subject to detention' means a journalist deemed an unprivileged belligerent will be put into military detention if captured. As with any enemy belligerent, however, if 'capture is not feasible,' they would be killed if possible, by drone perhaps if in a foreign country."
"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," Frank Smyth, the Committee to Protect Journalists (CPJ) senior adviser for journalist security wrote in response to the manual. "The Obama administration's Defense Department appears to have taken the ill-defined practices begun under the Bush administration during the War on Terror and codified them to formally govern the way U.S. military forces treat journalists covering conflicts."
Smyth said the language the Pentagon uses in the manual to justify its new classifications of journalists is "weak at best," and added his concern that the manual's potential for abuse during overseas conflicts "may be even worse."
"The language used to justify treating journalists as 'unprivileged belligerents' comes at a time when international law for conflict is being flouted by armed groups - including government, militia, and insurgent forces - from Ukraine and Iraq to Nigeria and the Congo - and during a time in which CPJ has documented record numbers of journalists being imprisoned and killed," Smyth wrote. "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."
Russia Today quoted Chris Chambers, a Georgetown University undergraduate communications professor, who stated that the manual actually gives US forces "license to attack" journalists.
Nowhere in the 1,180-page manual does it refer to the UN's Universal Declaration of Human Rights, which is the most accepted international legal document dealing with the press and the right to freedom of expression.
Beyond the possibilities for physical attacks on journalists, Pierce points to the censorship called for by the manual.
Additionally, the Law of War Manual goes on to overtly call for direct censorship of journalists' work by saying that governments "may need to censor journalists' work or take other security measures so that journalists do not reveal sensitive information to the enemy," he wrote.
Pierce noted that at present, most of the people the US military has imprisoned in Guantánamo, along with some held in Afghanistan, have been labeled "unprivileged belligerents." He added, "It must be noted that the United States deems as an 'unprivileged belligerent' anyone they target for capture or choose to kill."
According to Pierce, there has been an ongoing "war" against journalists of all nationalities since the September 11, 2001, attacks in the United States, and he believes the new Pentagon manual takes this a step further.
"The new DOD Law of War manual makes that official and potentially takes it to the highest level of conflict," he wrote. "Inherent to those classifications ['unprivileged belligerent'] is that they represent the "enemy" and can be killed by US officials.
Reporters Without Borders (RWB) published an open letter to US Secretary of Defense Ashton Carter soon after the manual was published. In the letter, RWB Secretary General Christophe Deloire wrote, "This terminology leaves too much room for interpretation, putting journalists in a dangerous position."
"Likening journalistic activity to spying is just the kind of ammunition certain repressive countries like Iran, Syria and China would seek out to support their practices of censorship and criminalization of journalists," Deloire added.
RWB's letter went on to call the Pentagon's actions "extremely alarming" and strongly urged the Pentagon to revise the sections of the manual that apply to journalists.
Vanessa Gezari, the managing editor at the Columbia Journalism Review, also voiced her concern about the manual, telling the Guardian that she found it "very threatening." She said, "I believe it contradicts at least the spirit of customary battlefield relationships, if not the letter."
The National Press Photographers Association's general counsel Mickey Osterreicher said of the manual's language, "It's speculative, it's ambiguous, it's arbitrary." And the editorial board at The New York Times released a highly critical editorial addressing the manual, calling the Pentagon's justifications for its proposed treatment of journalists "ludicrous."
Stephen Preston, the Pentagon's top lawyer and lead author of the manual, included a disclaimer in the preface of it that states the manual represents the views of the US Department of Defense, yet, shockingly, it does not necessarily represent those of the US government.
The manual states:
The preparation of this manual has also benefited significantly from the participation of experts from the Department of State, Office of the Legal Adviser, and the Department of Justice, Office of Legal Counsel, although the views in this manual do not necessarily reflect the views of those Departments or the U.S. Government as a whole.
Within weeks of the release of the manual, Preston resigned without any public notification, and has thus remained unable to locate for comment.
"Classes of Persons"
In this new framing of how the Pentagon regards journalists, there are several gray areas. The manual does state that journalists are "civilians," but promptly adds: "[But] like other civilians, civilian journalists who engage in hostilities against a State, may be punished by that State after a fair trial," thus opening them up to possible persecution and prosecution by the US military.
It goes on to say that the simple action of "relaying of information," which just happens to be the foundation of journalism, may in itself constitute what the Pentagon has the liberty of defining as "hostilities against a State."
Not dissimilar from actions taken by the Bush administration - which coined the term "unlawful combatants" - the manual refers to "classes of persons" that "do not fit neatly within the dichotomy" of combatants versus civilians, and thus replaces "unlawful combatants" with "unprivileged belligerents."
According to the CPJ's Smyth, "unprivileged" means "the suspect is not entitled to the rights afforded to prisoners of war under international law and can instead be held as a criminal suspect in a category that includes suspected spies, saboteurs, and guerrillas."
"Unprivileged belligerents," according to the manual, can be subject to US domestic laws - meaning that people found guilty of spying may be subject to the death penalty. It is also worth noting that nobody has been given a death sentence in a US court of law for spying in a very, very long time. According to the manual, it is up to the Pentagon to decide whether or not the actions of a journalist in question are "spying."
A revealing admission came from Pentagon spokesman US Army Lt. Col. Joe Sowers of the Pentagon's Office of the Assistant Secretary for Public Affairs, who told The Washington Times, "The fact that a person is a journalist does not prevent that person from becoming an unprivileged belligerent."
Disturbingly, the manual addresses independent journalists directly, and goes on to say, "In some cases, the relaying of information (such as providing information of immediate use in combat operations) could constitute taking direct part in hostilities."
The manual openly states, "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. To avoid being mistaken for spies, journalists should act openly and with the permission of relevant authorities. Presenting identification documents, such as the identification card issued to authorized war correspondents or other appropriate identification, may help journalists avoid being mistaken as spies."
Given the chaos inherent in reporting during times of war, especially in countries like Iraq and Syria and other failed states where obtaining government permission to do anything is either impossible or at the least extremely difficult, the manual's requirements for such measures are troubling.
Another aspect of the manual that CPJ's Smyth takes to task is the language in paragraph 4.24.5, which states:
States may need to censor journalists' work or take other security measures so that journalists do not reveal sensitive information to the enemy. 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.
Smyth wrote of this section: "[It] simply contradicts the post-World War II norm of a free press."
It should also be noted that the manual is clearly attempting to ban journalists from certain conflicts, in addition to giving the Pentagon the authority to restrict and/or censor journalists from filing what it gives itself the latitude to deem as "sensitive information." This would be a gross violation of the Universal Declaration of Human Rights, in which Article 19 states the right to "receive and impart information through any media regardless of frontiers."
The manual conveniently grants itself the right to overlook other human rights treaties by stating that the rules of war supersede human rights treaties. It says: "These apparent conflicts may be resolved by the principle that the law of war is the lex specialis during situations of armed conflict, and, as such, is the controlling body of law with regard to the conduct of hostilities and the protection of war victims."
Given the latitude the military is handing itself to control, censor and target journalists with its new policy document, freedom of speech has likely never been under as much threat for journalists covering armed conflicts in which the US military is engaged.