{"id":1050,"date":"2010-04-09T14:40:32","date_gmt":"2010-04-09T21:40:32","guid":{"rendered":"http:\/\/www.harvardnsj.com\/?p=1050"},"modified":"2010-04-09T14:40:32","modified_gmt":"2010-04-09T21:40:32","slug":"nsj-analysis-applying-the-law-of-armed-conflict-to-wikileaks","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2010\/04\/nsj-analysis-applying-the-law-of-armed-conflict-to-wikileaks\/","title":{"rendered":"NSJ Analysis: WikiLeaks and Jus in Bello: Room for a Congressional Response?"},"content":{"rendered":"

By Larkin Reynolds – <\/strong><\/p>\n

On Monday, April 5th, The New York Times<\/em> published<\/a> a story about a controversial video now known in blogging circles as the “‘Collateral Murder’ video.”\u00a0 The video was posted on WikiLeaks.org, a Web site known for its disclosures of sometimes-classified government information.<\/p>\n

Because the tape WikiLeaks obtained had been encrypted, they needed help to descramble it.\u00a0 To do so, they solicited assistance on Twitter by representing that the video depicted an aerial intervention in Afghanistan that may have killed over 100 civilians. \u00a0Both versions were reportedly posted on the WikiLeaks site at first, but as of today only the edited video appears.<\/p>\n

It depicts an Iraqi journalist, Namir Noor-Eldeen, driver Saeed Chmagh (both of whom worked for Reuters), and several others as filmed from a U.S. military Apache helicopter.\u00a0 During the engagement, the gunners shoot, and ultimately kill, twelve Iraqis.\u00a0 The soldiers’ comments are audible and are not unlike what one might hear in a room full of teenage video-gamers.<\/p>\n

Glenn Greenwald of Salon.com \u2014 among many others \u2014 has defended<\/a> the release of the video.\u00a0 He states that \u201c[s]hining light on what our government and military do is so critical precisely because it forces people to see what is really being done and prevents myth and propaganda from distorting those realities.\u201d\u00a0 Few could argue with the basic proposition.\u00a0 However, Bill Roggio<\/a> and others<\/a> have opined that the operation was nothing close to \u201cCollateral Murder,\u201d that the video itself was distorted and manipulated, and that \u2014 far from exposing the government\u2019s account as myth \u2014 it is entirely consistent with<\/a> the investigation.\u00a0 One blogger condemns the video\u2019s editing for its \u201cdisonest[y]<\/a>\u201d; another<\/a> called the release, and The<\/em> New York Times<\/em> article describing it, \u201cone of the worst smear jobs against our military based on zero evidence in the last decade.\u201d<\/p>\n

The irony of the debate is the following: those who released the WikiLeaks video, those who published it, and those who defend its release without reservation commit one of the same sins of which they accuse the military \u2014 losing track of the distinction between enemies and innocents.<\/p>\n

In the WikiLeaks case, the leakers\u2019 \u201cenemy\u201d is ostensibly the U.S. government.\u00a0 Undoubtedly the U.S. government is a lawful \u201ctarget\u201d for those critical of its actions.\u00a0 And, as in any combat scenario, the purpose of targeting an enemy is to neutralize the threat that it poses; indeed, yesterday the Pentagon renewed its investigation into the incident<\/a>.\u00a0 However, the video is sure to harm some number of \u201cinnocents\u201d as well, as the video will no doubt provide an unquantifiable amount of propaganda that can be used by existing terrorist organizations for recruitment purposes.\u00a0 The collateral damage is foreseeable, as it is no secret that organizations like al-Qaeda further their radicalization efforts with the aid of visual props that can be selectively edited and posted on jihadi Web sites.\u00a0 Footage like this is inordinately manipulable, as evidenced by the fact that the longer clip was itself altered and packaged into a narrative supporting the \u201cCollateral Murder\u201d argument.<\/p>\n

President Obama expressed an analog of this point of view when he said<\/a>, in the context of Abu Ghraib prisoner-abuse photos, that \u201cthe most direct consequence of releasing [the photos] would be to further inflame anti-American opinion, and to put our troops in greater danger.”\u00a0 Congress agreed by amending the Freedom of Information Act to block the photos\u2019 release.\u00a0 It is true that leaders in the human rights community disagree on this normative assumption about collateral effects.\u00a0 For example, Amrit Singh \u2014 among the attorneys who argued the ACLU’s now-moot FOIA suit to release the Abu Ghraib photos \u2014 has stated terrorists already have plenty of information \u201cat their disposal to conduct violence<\/a>.\u201d<\/p>\n

We may never know the empirical value of these competing propositions, but a line of argument proceeding along the ACLU’s track could just as easily yield a contrary conclusion. \u00a0The stomach-turning conclusions that WikiLeaks wants public<\/em> viewers to draw from the April 5th video were already public knowledge as of March 26th<\/a>:\u00a0U.S. troops sometimes kill innocent civilians who actually pose no threat to military operations.<\/p>\n

In short, there may be less distance between the tactics of WikiLeaks and its enemy than the WikiLeaks folks might immediately recognize.\u00a0 Just as the current laws of armed conflict require combatants to look to the jus in bello <\/em>principles of proportionality, distinction, and military necessity (involving an assessment of the probable collateral damage to non-military targets against the expected military gain, as well as an instruction not<\/em> to engage in the most severe measures when a less harmful alternative exists), so too should transparency advocates apply those principles in their own \u201cwar\u201d against suspected government abuse.\u00a0 In this case, it seems likely that whoever leaked the video to WikiLeaks, and WikiLeaks itself, had alternatives to the public exposure of a graphic video that, when taken out of context, might be more inflammatory than illuminating and could do more harm than good. \u00a0Public exposure of a tape like this does not take place in a vacuum in which the possible responses are all non-violent.<\/p>\n

Nevertheless, we must also acknowledge that those alternatives might not have been as accessible as we might at first presume.\u00a0 Many believe that current U.S. law provides inadequate whistleblower protections for national security employees; anyone who now releases classified information to unauthorized recipients risks major disciplinary action, if not termination of employment, and perhaps even criminal prosecution. \u00a0WikiLeaks is able to protect its government-employee sources because it wisely chose to organize itself under Swedish law; the group is thus unreachable by U.S. efforts to track down and penalize the leakers.\u00a0 Because this arrangement ensures that a whistleblower is better protected against retaliation and the threat of prosecution if she tips WikiLeaks rather than a member of Congress, she would be irrational to disclose troubling (but classified) information to another branch of the government rather than to the media and therefore the public.\u00a0 In this manner, the United States Code directly incentivizes leakers to take actions without regard to collateral effects.<\/p>\n

To alleviate this pathology, Congress should enact the Whistleblower Protection Enhancement Act of 2009, the House version of which has been said to \u201cexten[d] meaningful protections to national security whistleblowers, the eyes and ears inside the government who are looking out for our safety and security.<\/a>\u201d \u00a0Whichever version Congress does pass, the legislative branch should ensure the statute provides some mechanism whereby national security employees can report suspected misconduct to an entity with enough independence to ensure the allegations are genuinely and impartially investigated. \u00a0Right now the only such mechanism runs right through al-Qaeda’s well-oiled propaganda machine.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Larkin Reynolds – On Monday, April 5th, The New York Times published a story about a controversial video now known in blogging circles as the “‘Collateral Murder’ video.”\u00a0 The video was posted on WikiLeaks.org, a Web site known for its disclosures of sometimes-classified government information. Because the tape WikiLeaks obtained had been encrypted, they needed help to descramble it.\u00a0 To do so, they solicited assistance on Twitter by representing that the video depicted an aerial intervention in Afghanistan that may have killed over 100 civilians. \u00a0Both versions were reportedly posted on the WikiLeaks site at first, but as of […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-1050","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZtUX-gW","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/1050","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/comments?post=1050"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/1050\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/media?parent=1050"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/categories?post=1050"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/tags?post=1050"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}