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BOB: This summer the Department of Defense released its long-awaited “Law of War Manual,” a nearly 1200-page document and the first ever department-wide codification of the Pentagon’s wartime protocols. Many of these guidelines are uncontroversial: prisoners of war should be given sufficient drinking water, for instance. But buried within are wholly unexpected standards for treating journalists -- standards, as a New York Times editorial pointed out, reminiscent of the most authoritarian regimes. Among them: the notion that journalists may in some cases be classified as “unprivileged belligerents” and treated as spies.
Charles A. Allen is the Deputy General Counsel for International Affairs at the Department of Defense. It was his office that released the manual this June. Chuck, thank you for joining us.
ALLEN: It's a pleasure to be with you.
BOB: Let's start with this: unprivileged belligerents? It sounds an awful like unlawful combatants, which is what Guantanamo is filled with. What constitutes unprivileged belligerents?
ALLEN: Well the term unprivileged belligerent is pretty much the same as unlawful enemy combatant. In the case of the ongoing conflict against Al Qaeda for example, member of the enemy forces. By no means is the manual equating journalists or NGO personnel or any other civilian with unprivileged belligerency. The reference to unprivileged belligerents is only to point out that one can abandon his or her position as a civilian and become a member of the enemy forces.
BOB: And if in the heat of battle a commander finds a journalist whom he deems to have surrendered his privileges by whatever actions, is he subject to arrest, does he lose due process, what happens to an unprivileged belligerent?
ALLEN: Well actually your question points out a big part of the value of this manual. We have wonderful military personnel serving our country overseas and they want to do the job right. So this is I think a resource that helps them to be able to give the best advice to command. But, the idea suggested in your hypothetical of targeting that person, perhaps detaining that person as an unprivileged belligerent, there would be a lot of analysis and a lot legwork and a lot of legal process and potentially research that goes into any such decision.
BOB: I just want to call attention to one passage within the manual which states that quote, "Relaying of information such as providing information of immediate use in combat operations could constitute taking direct part in hostilities, and thereby disqualifying a journalist of civilian protections." Apart from the fact that revealing operational details is a violation of our own ethics, have you any cases where an operation was jeopardized by reporters in the field in any of the last, I don't know, five wars? Does this even happen?
ALLEN: i don't have specific cases in mind, I think that the fact that we don't have a lot of examples could be a tribute to the press corps, and my colleagues in public affairs area. There's a salutary purpose in some of the provisions in this section, and that is to underscore the importance of distinguishing oneself as a journalist, in order to avoid being mistaken as a member of the enemy forces. So we're trying to be more comprehensive than previous manuals, but we have gone into this area that seems to have raised some questions and of course we're very interested in hearing people's responses to not only this but to the whole manual.
BOB: Well, you're fixin' to hear one. Because your manual is concerned with bad journalistic apples of whom you can offer no examples. I on the other hand can offer many examples of military misfeasance and malfeasance and cover ups and even atrocities. My concern is that in the hands of such a bad apple commander, the manual could be used as a document of impunity, for commanders who are just trying to operate badly under the radar to save themselves from membarrasemnet prosecution or worse.
ALLEN: I don't disagree with you. But I also point out that's one ofthe main reasons for having this manual out there. Lawyers who are practicing in the military have ethical requirements, their client ie the US government, it is not individual commander, and you have to disseminate the information and the nuances of the law in order for legal advisers and the commanders that they're advising so that they can adhere to them.
BOB: Chuck, one need only follow recent episodes in North Korea and China and especially Iran to be concerned with this language from the manual. Quote, "to avoid being mistaken for spies, journalists should act openly and with the permission of relevant authorities." Uh, that's kind of jaw dropping, to me. Does the Pentagon not understand that journalists aren't in the employ of or subject to the orders of the military?
ALLEN: You know, there are ground rules agreed to by the media which involve the limiting or embargoing of the release of some militarily sensitive information because lives are at stake. I am concerned that people are reading that provision the way that you have described it, there was no intention to change any of the ongoing rules and arrangements that provide to our strong policy of cooperation with the media.
BOB: Does the Pentagon intend to revisit the law of war manual to make sure that none of these ambiguities become the law of the military?
ALLEN: we are certainly going to consider comments that have been made and others that we expect to be made again, this is a manual that has only been out really a matter of weeks. And, we would consider those with regard to this section which has again about two pages of a very large manual, that's not to say it's a small matter. The fact that it is being construed in the way it has been is something of major concern to us. We are going to be receiving comments. And those will be considered seriously as we make updates to the manual.
BOB: When shall I check back iwth you?
ALLEN: I'd be happy to be in contact with you on a frequent basis. If you'd like to know where we are or where we're going on this particular issue, I'd say perhaps in a couple of weeks we could get back with you?
BOB: That would be fantastic. Chuck, thank you so much.
ALLEN: thank you very much, Bob. I really appreciate the time and the discussion we've had.
BOB: Charles A. Allen is the deputy general counsel for international affairs at the Department of Defense.