Does Perfidy Need a Human Rights Counterpart?

By Tara VanHo. You can follow Tara on twitter: @TaraVanHo

The US Federal Bureau of Investigation (FBI) authorized an agent to pose as a reporter for the Associated Press.  The FBI’s claim that the deception was necessary for combatting crime, and the AP’s objection to the technique, which it saysundermines the AP’s credibility, raise interesting questions about the appropriateness of police impersonations and deceptions, and an important comparison between international human rights law (IHRL) and the laws of armed conflict.

I find it necessary to explain why I am concerned by the FBI’s use, in part because the media organisations that arediscussing the issue are too often doing so in terms of ‘objectivity’ and ‘integrity,’ or vaguely as a ‘free speech’ issue. If these are the only concerns, the FBI’s response seems to alleviate any real tension between the needs of the state and the rights of the AP:

In 2007, to solve a series of bomb threats and cyberattacks . . . an F.B.I. agent communicated online with the anonymous suspect. Relying on an agency behavioral assessment that the anonymous suspect was a narcissist, the online undercover officer portrayed himself as an employee of The Associated Press, and asked if the suspect would be willing to review a draft article about the threats and attacks, to be sure that the anonymous suspect was portrayed fairly. . . . No actual story was published, and no one except the suspect interacted with the undercover “A.P.” employee or saw the fake draft story. Only the suspect was fooled, and it led to his arrest and the end of a frightening period for a high school.

If the human rights issues at play are simply the AP’s integrity and objectivity versus the state’s needs to pursue someone responsible for bomb threats and cyberattacks, then the fact that only the suspect was fooled suggests an appropriate balance in rights and interests may have been struck.

I disagree, though, that the human rights issues either start or end with the AP’s integrity and reputation. I see this as an issue affecting the security and safety of reporters in, from, and associated with the US.

We ask reporters to serve society as “the fourth estate,” unearthing issues that can harm societies and holding accountable the powerful and the corrupt. I realise this is a bit of an idealised notion of the media in light of what sometimes passesasnews’ now in the US (seriously, toggle between the ‘international’ and ‘US’ editions of CNN online and ask yourselves why CNN assumes Americans to be stupid), but reporters do continue to risk their lives daily for stories.

have been reminded too frequently this year of the threat to reporters’ lives when covering and discussing serious and important stories. Yes, each word in that sentence is linked to the profile of a journalist killed in the line of duty this year alone. They aren’t all from the US, but at least two – James Foley and Steven Sotloff – were murdered in the line of duty specifically as retaliation for US military involvement in Iraq. And the US is not immune from the targeted killing of journalists; the Committee to Protect Journalists knows of five journalists killed in the US because of their work since 1992.

It’s not just murders, though. In August of this year, journalists were too routinely arrested by police in Ferguson, Missouri, while reporters for Al Jazeera have been imprisoned in Egypt for covering stories related to the unrest and military coup there.

We ask journalists to take this risk for “the greater good,” for service to our societies. While there are inherent dangers in their work, the state’s general obligations under human rights law should ensure it works to mitigate, not exacerbate, those dangers. Obviously, I don’t think criminals should target police, either, but police enter their profession with both an understanding and an intention to combat criminals. Journalists do not, and deceptions like the one employed by the FBI raise the risks for journalists. Criminals they need or want to interview for important social stories will be less likely to entertain their presence, and more likely to assume they are working with the police. Journalists may now be more reticent about pursuing serious stories lest someone assume “journalist for the NY Times” is actually a cover for “FBI agent, happy to turn you in.” This carries over not just within the US but also for US journalists overseas, who are already at risk of being assumed to be spies.

The FBI’s impersonation of journalists raises an important question about when it’s appropriate for police to assume civilian identities in pursuit of criminal activity. I think here, international human rights law could learn from the laws of armed conflict (LOAC), which makes ‘perfidy’ a war crime. Perfidy, sometimes referred to as killing and wounding treacherously, occurs if a member of a military (or non-state armed group) impersonates a protected person to gain access in order to kill, injure, or capture an enemy during war.

One of the oldest recognized prohibitions in armed conflict, its criminal status is a reflection of the potential of perfidy to undermine the very purpose and nature of LOAC. At the heart of LOAC is a recognition that while “war is hell” the parties should try to limit the amount of hellishness that civilians suffer. As a result, international law demands that parties distinguish themselves from civilians. During an armed conflict, from a distance the enemy should be able to look at me and look at my sister, who is in the US military, and know that they can shoot her and not me (sorry Mom and Dad; I feel no need to apologize to my sister who both understands this and appreciates its purpose). Our militaries have uniforms in part to comply with this principle.  So do a lot of non-state armed groups.

LOAC recognizes that if military members choose to dress as civilians in an effort to secure protections they are not entitled to, there is a potential for both sides to stop distinguishing themselves. This would undermine the purpose of the law. Perfidy may offer an individual side a short-term gain, but it would also undermine the sanctity of protection. In truth, not all is fair in love and war, and the potential for short-term gains at the expense of the long-term interest of civilian protection is considered not just unfair but inappropriately dangerous.

In armed conflict, journalists – even when embedded with a side – are to be protected and not considered legitimate military targets. They are considered civilians, and while they do not receive special or additional protections, posing as a journalist for the purpose of killing, capturing or injuring the other side still constitutes perfidy. It’s prohibited because it places all other journalists – and other civilians – at undue risk.

In light of the FBI’s impersonation, I am wondering whether IHRL needs a variation of perfidy. In his defence, the FBI’s current Director, James Comey demonstrates he simply does not understand the real problem with the tactic:

No actual story was published, and no one except the suspect interacted with the undercover “A.P.” employee or saw the fake draft story. Only the suspect was fooled, and it led to his arrest and the end of a frightening period for a high school.

That technique was proper and appropriate under Justice Department and F.B.I. guidelines at the time. Today, the use of such an unusual technique would probably require higher level approvals . . . but it would still be lawful and, in a rare case, appropriate.

If this was only about the AP’s reputation, Comey’s risk assessment might be right – but he seems to forget that it is not the public at large that needs to be protected. It is the journalists whose ability to do their jobs on an ongoing basis is put at risk. It is the reaction of criminals who hear about this story (perhaps in jail; perhaps in a NYT article) that we have to worry about.  We know this because past deceptions in which job-specific identities were used had long-term, horrific results for affected societies.

I started this piece by asking whether IHRL needs an equivalent to the prohibition on perfidy. Currently, if the police want to lie and deceive, IHRL allows them to (assuming domestic law also allows for it). This is a relatively good reason for this, which Comey highlights: “[e]very undercover operation involves ‘deception,’ which has long been a critical tool in fighting crime.” A general prohibition on assuming civilian identities would therefore hurt the state’s obligation to fight crime and fulfil its other human rights obligations – like stopping a bomb before it goes off.

But a targeted prohibition on perfidy may be necessary to protect civilian professions already at a heightened risk because of their service to society. It is not sufficient to say that the short term gain was worth the short term risk; one needs to consider the longer term implications of these actions, not for the FBI or police agency, but for those they swear to protect – the civilian professionals who they are choosing to impersonate.

Journalists – and doctors and lawyers – need to enjoy a certain level of trust and protection for their work and are also required to work with people engaged in unsavoury activities. We as a society need them to do this work. Assuming their job-specific identities place those professions at a greater risk of targeted violence, and for that reason alone, deceptions like those employed by the FBI are unacceptable.

Disclaimer: The views expressed herein are the author(s) alone.

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