If you've ever wondered why the public has so little confidence in newspapers relative to the military these days (as evidence by June's Gallup poll) take a gander at the nonsensical editorial, "The Pentagon's Dangerous Views on the Wartime Press," in Monday's edition of The New York Times.
The Times' editors took umbrage at the military's new Law of War Manual's discussion about the wartime legal status of journalists. Apparently, the Times is unaware that the manual does little more than lay out what the Geneva Conventions and other legal authorities have provided for decades.
For example, the Times' editors decry the fact that the manual notes that when journalists relay to adversaries "information of immediate use in combat operations," such real-time and direct support of enemy warfighting efforts might jeopardize the protected status journalists normally enjoy. This is nothing new. The International Committee of the Red Cross (ICRC) makes clear that journalists are protected like other civilians, but not "for such time as they take a direct part in hostilities" — language which is itself taken directly from the 1977 Protocol I to the Geneva Conventions.
So what would constitute "direct participation"? The Times ridicules the manual for having what it calls a "vaguely-worded standard" in this regard. Actually, the ICRC itself uses "transmitting tactical targeting intelligence for a specific attack" as one example of "direct participation." Put another way, the manual's illustration virtually mirrors the substance of the ICRC's assessment — something the Times could have easily discovered if they had exercised a modicum of due diligence.
Does anyone (other than the Times' editors) really believe that journalists have some kind of unfettered right to broadcast to Islamic State in Iraq and Syria (ISIS) militants or whomever might be listening that, for example, a clandestine military operation to rescue hostages is about to get underway?
The Times also obviously resents that anyone would even suggest a journalist might be involved in spying. In truth, it is hardly a news flash that spies have long used the "journalist" sobriquet as a cover. In fact, in reporting the death in 2013 of Austin Goodrich, a former CBS reporter-cum-spy, the Times itself admitted that he was "far from the only journalist doubling as a secret agent" in the 1950s and '60s. Is the Times really so naive to think that in a world where adversaries are willing to bury children alive, they would be squeamish about using journalists as secret agents?
It is not hard to figure out why journalists could be effective spies. After all, international law defines spying as "[when someone] acting clandestinely or on false pretenses ... obtains or endeavors to obtain information in the zone of operations of a belligerent ... with the intention of communicating it to the hostile party." Isn't a journalist someone who "obtains or endeavors to obtain information in the zone of operations"? For its part, the American Press Institute (API) defines journalism as "the activity of gathering, assessing, creating, and presenting news and information." One need not be a military expert to realize that the API definition reflects much the same skill set as that of a military intelligence officer. In short, the manual's concern about journalists is hardly unreasonable.
The ICRC understands that it is a real possibility that a journalist might actually be an intelligence operative, and simply insists that a journalist so suspected must not be subject to arbitrary detention, and must be given a fair trial. The military's manual is, of course, fully supportive of such humane treatment.
In addition, the Times' editorial reveals a blissful ignorance about the impact of modern technologies on battlefield reporting. A new study by the Royal Danish Defense College regarding the "weaponization of social media" gives examples as to how today's press reporting is being exploited by terrorist organizations in combat:
Internet (live streamed news reports on web-TV) and social network media (e.g., Journalists tweeting from crisis areas) [are] also being used by non-state actors without sophisticated Intelligence Surveillance and Reconnaissance (ISR) assets to conduct Bomb Damage Assessment (BDA) of, e.g., their rocket attacks.
In other words, even the most well-meaning journalist might be inadvertently aiding the enemy. This illustrates that, yes, there are instances where it is necessary to temporarily restrain reporting — even by bona fide journalists. This is completely legal, and not just under international law: The Supreme Court has never found that the First Amendment entitles journalists or anyone else to communicate to the enemy real-time information it can readily use to fight U.S. troops.
Why? The court has held that it is "obvious and unarguable" that "no governmental interest is more compelling than the security of the Nation." Indeed, in the 2010 case of Holder v. Humanitarian Law Project, the court upheld as consistent with the First Amendment the actual criminalization of the conveyance of relatively benign and unclassified legal information to designated terrorist organizations.
The Times also arrogates to itself the right to declare who is or is not a "journalist." When a Pentagon official raised the example of the assassination of the Afghan military commander Ahmad Shah Massoud in September 2001 by assassins who posed as television journalists, the Times editors scoffed that "They were not, in fact, journalists." In the real world, however, determining who is or is not a journalist is not an easy thing, especially given that anyone with access to a social media can describe him or herself as a "citizen journalist." These are, we are told, private individuals who "do essentially what professional reporters do."
Accordingly, although the Times objects mightily to a journalist accreditation process, should any "citizen journalist" with a Twitter account be allowed to traipse around a battlefield transmitting whatever sensitive military activity interests him or her? Furthermore, is not some vetting appropriate in light of the Massoud incident? Again, even a cursory examination of Protocol I clearly shows it contemplates that it will be a government — not the Times or any newspaper — that "attests" to a person's "status as a journalist."
This editorial is yet another embarrassing episode of the Times not doing its homework. As others have chronicled, the once-great Gray Lady of journalism is in steady decline. Its own public editor struggled to explain how it could have gotten its facts so wrong in a recent story of national importance. Moreover, just this month it put a self-aggrandizing headline on a story heralding the small profit The New York Times Comapny made after a first quarter loss, only to have those who read the full story find the more ominous fact that overall revenue fell, precipitating a stock tumble of 3 percent in just a single day.
The United States needs a fully informed, robust and courageous media, particularly during wartime. And it needs reporters on the battlefield who are willing to accurately represent the facts to the public. But that press cannot deem itself above the Constitution or the international law to which America has bound itself. Nor can it be insensitive to the needs of those this country sends in harm's way. Denigrating the military simply because its manual reflects the law as it exists is a formula for the further loss of confidence of the American people in their newspapers.
Dunlap is a retired Air Force major general and currently professor of the practice of law at Duke University School of Law, where he is also executive director of the Center on Law, Ethics and National Security.