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Victory LapseThe Pentagon and the media's chronic mistake.

By Scott Shuger
Posted Friday, March 15, 2002, at 11:01 AM ET

Why does the Pentagon consistently fail to put its best foot forward when it addresses human rights issues related to the war? And why does the press so frequently fail to supply the context the Building leaves out?

Take the Pentagon disclosure earlier this week that during Operation Anaconda in eastern Afghanistan, some women and children were killed by a U.S. airstrike. The military spokesman who released this information not unreasonably explained that the civilian victims were in a vehicle that the United States still believes was also carrying al-Qaida fighters. And Secretary of Defense Donald Rumsfeld has observed that the women and children in Anaconda's remote battle zone were there "of their own free will, knowing who they're with …" But it's just maddening that neither the Pentagon nor the New York Times in its story on the revelations bothered to mention that international law addresses just this sort of situation and supports the United States.

And this isn't one of those angels-on-the-head-of-a-pin deals. The Fourth Geneva Convention, which specifies protections guaranteed to civilians during wartime (and which was signed by both the United States and Afghanistan), includes the following straightforward sentence (it's Article 28): "The presence of a protected person may not be used to render certain points or areas immune from military operations." That is, the Geneva Convention clearly says you cannot inoculate what would otherwise be a legitimate military target by grafting noncombatants onto it.

This is not to say that attackers can simply ignore the presence of noncombatants. International law experts hold that a military use of force must be proportional to the military advantage it would gain. Civilians located at legitimate targets either by choice, compulsion, or accident are still protected from disproportional attacks. You can't call in an airstrike on a school building full of children just to kill a single sniper on the roof.

Without this legal context, the Pentagon couldn't and didn't claim that in conducting the airstrike it had taken pains to limit itself only to proportional attacks, and the Times couldn't and didn't evaluate any such assertion. The big loser is anybody else trying to assess the morality of the U.S. anti-terror campaign. You know, the rest of us.

There have been umpteen Pentagon press conferences where Rumsfeld fields a question about the legality of a U.S. anti-terror military move by saying something like, "Well, I'm no lawyer, but it seems obvious to me that …" and then goes on to pretty much miss the relevant legal point. (Rumsfeld's role as lead "I'm not an" attorney is why the DOD's legal justification for its treatment of the Guantanamo detainees is still an utter hash.) You'd think that as a result, by now the Pentagon would be in the habit of occasionally producing a staff international lawyer to unfarkle such matters. You'd think.

And why can't the New York Times remember to call up a war law expert or two before running stories about U.S. operations producing (or apparently producing) civilian casualties? Or is the press so conditioned by the military information machine that it's doomed to mimic the Pentagon's every lapse?

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Scott Shuger is a Slate senior writer who spent five years in the U.S. Navy and served overseas as an intelligence officer.
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