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. "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. Pentagon spokesman US Army Lt. Col. Joe Sowers of the Pentagon's Office of the Assistant Secretary for Public Affairs, stated, "The fact that a person is a journalist does not prevent that person from becoming an unprivileged belligerent."
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. "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." According to the manual, it is up to the Pentagon to decide whether or not the actions of a journalist in question are "spying."
Todd Pierce, a retired major in the US Army Judge Advocate General (JAG) Corps, wrote "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.
Chris Chambers, a Georgetown University communications professor stated that the manual actually gives US forces "license to attack" journalists.
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".
Vanessa Gezari, the managing editor at the Columbia Journalism Review, 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."
The New York Times released a highly critical editorial addressing the manual, calling the Pentagon's justifications for its proposed treatment of journalists "ludicrous."
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."