Kenneth Payne has an article in the new issue of Parameters, the official journal of the US Army War College, called "The Media as an Instrument of War." The introduction and most of the analysis is pretty straightforward, reviewing the importance of strategic deception and all that:
The media, in the modern era, are indisputably an instrument of war. This is because winning modern wars is as much dependent on carrying domestic and international public opinion as it is on defeating the enemy on the battlefield. ... Today’s military commanders stand to gain more than ever before from controlling the media and shaping their output. The laws and conventions of war, however, do not adequately reflect the critical role that the media play in shaping the political outcome of conflicts. International humanitarian law requires that media members are afforded the rights of civilians; the question is whether this is sustainable when the exigencies of warfighting suggest that controlling the media is essential.
Much of the analysis is pretty unexceptionable, until I got to this, which stopped me cold:
If the media are present, and they are undermining the political-military strategy, it makes sense to control them. If they are behaving in a non-neutral way, it may even seem appropriate to target them. But where are the boundaries of neutrality? Perhaps targeting is lawful if your enemy is using the media to defeat you militarily, for example through a deception operation. But what if he is merely shaping the media reporting of the conflict through his own information operations? Would targeting the media be legitimate in these circumstances, even if the media were not complicit in this strategy? Or what if the media in question have brought their own damaging prejudices to the battlefield, regardless of the ambition of the enemy to control them?
The broad outlines of debate are readily apparent, as illustrated by the opinion from the Pentagon counsel quoted earlier. If the media are behaving impartially, then they are entitled to treatment as civilians. Where they are not, the assessment of the general counsel suggests that they can be targeted militarily. The trick is in making an accurate judgment about their partiality and the motives behind it.
If I understand Payne correctly, what he is saying is that if the military makes a determination that a media outlet - say, al Jazeera - is reporting in a biased way which complicates the military solution, targeting them militarily is both justifiable and appropriate. Is that really current Pentagon policy?
Payne quotes as typical of standard customary international law this opinion from the Red Cross: “The media cannot be considered a legitimate target, even if they are being used for propaganda purposes.” He then juxtaposes this with a May 1999 legal finding from the Pentagon's general counsel:
"Civilian media generally are not considered to be lawful military targets, but circumstances may make them so.... When it is determined that civilian media broadcasts are directly interfering with the accomplishment of a military force’s mission, there is no law of war objection to using the minimum necessary force to shut them down. The extent to which force can be used for purely psychological operations purposes, such as shutting down a civilian radio station for the sole purpose of undermining the morale of the civilian population, is an issue that has yet to be addressed authoritatively by the international community."
What does this mean for existing policies about targeting 'hostile' media? Payne says that "As to whether the international media have ever deliberately been violently attacked by Western forces, it is impossible for an outsider to provide a definitive answer, but it seems improbable in most conceivable circumstances." And he argues specifically against the idea that targeting al Jazeera in Iraq would have been appropriate.
But what about the broader question of American policy? If some military commander's judgement about al Jazeera differed from Payne's, would such targeting be deemed a legal and acceptable policy? Perhaps these issues have been thoroughly mooted elsewhere - perhaps during the Eason Jordan controversy - but I find it fairly shocking. Is Payne right in his characterization of current legal and policy thinking within the Pentagon?UPDATE: John in comments points out that Parameters is an academic journal, not an official Army War College policy journal, which means that this should be treated as a think piece and not an official interpretation of policy. Which leaves the question of whether Payne has correctly interpreted current Pentagon legal and policy thinking open, but would be at least somewhat reassuring. Thanks for the catch.