Law in Contemporary Society

The Dao of Not Knowing

-- By Ron Mazor

[Long Version]

[Short (Edited) Version]

(Video being utilized for academic purposes, with the intention of fair use.)

Introduction and Background

On April 5, 2010, WikiLeaks posted the above short video on its site. They also linked to Collateral Murder, which had a second, "full" version of the video.

The videos pertain to a helicopter strike by U.S. forces on July 12, 2007 in Iraq. The strike killed two Reuters employees, Namir Noor-Eldeen and Saeed Chmagh, as well as nine other individuals. The U.S. conducted an investigation into the incident (AR 15-6, Pilot Sworn Statements, Legal Review) (explanation of AR 15-6). The conclusion was that the pilots had acted appropriately, and the U.S. declined to take further actions. Reuters' requests for a more substantial investigation have not been granted.

When I first saw the short video, about a week after it hit the news, I was scandalized. I had taken a class on the laws of war and American military intervention in college, and I was pretty sure that what I had seen contravened portions of the Geneva Conventions. I was further shocked that the Army had declined to further investigate the matter. Usually, I've bristled at Eben's characterizations of the U.S. military, as I've felt his descriptions were unfair reductions which failed to take into account the difficulty faced by soldiers at wartime in making decisions with imperfect information and with lives hanging in the balance. Yet, my own position only holds water so long as the people making the decisions are taking the weight of their choices seriously. What I saw in the video seemed an unjustifiable example of lethal carelessness, and I was angry.

When I brought this topic up with Eben, along with my idea of analyzing the footage for war crimes violations, Eben suggested I take a closer look and not jump to conclusions. Where I saw incontrovertible video footage, he saw over-reliance on a single evidentiary source. He was right.

Zhuangzi

"The sage embraces things. Ordinary men discriminate among them and parade their discriminations before others. So I say, those who discriminate fail to see."

"Right is not right, so is not so. If right were really right, it would differ so clearly from not right that there would be no need for argument...Forget the years; forget distinction. Leap into the boundless and make it your home!"

Over the past week, I decided to revisit some favorite readings. Zhuangzi, the Daoist philosopher, was among the authors I read. Work in progress...

Concerns

There is no conclusive evidence that this is actual Apache gun camera footage. The Pentagon has not released an official statement conforming, or denying, that this is legitimate. A number of news sources claim to have confirmed the video's authenticity through military sources. None have identified their sources. The video also does comport with the statements of the pilots regarding the events on the day in question. That said, without verification, we cannot know that the video is what it is claimed to be. We are left to trust the news organizations, which is unwise.

Equally troubling are the alterations made to the videos, both in the long and the short versions. Of specific concern is the lack of a video which can be considered chronologically accurate. The short video is edited to emphasize certain events, so I will focus on the "full" video. It isn't clear to what extent this has been edited. There are multiple instances where the video fades to a black screen and shifts to a new scene (such as at 4:42). There are also instances where there appear to be cuts and shifts to new scenes that are much less obvious (3:33 and 23:27 are two of the many examples). Granted, we cannot expect perfect footage, but the combination of these shifts suggests that the "full" video isn't a true chronological record of the entire situation. Even if it is, we cannot know this definitively. It is impossible to tell how extensively the video has been edited.

Analysis

These are just two of the many issues with the videos posted. Given, however, that we can't verify the authenticity of the video and that it appears as though even the "full" video may have been altered, the next step is to consider what we know about the incident after the leak. We know that at least eleven people died on July 12, 2007 as a result of the incident in question. We know that among the dead were Namir Noor-Eldeen and Saeed Chmagh, two Reuters employees. Beyond this, however, the videos WikiLeaks revealed add little to our knowledge of the events surrounding the incident in question.

As lawyers, part of our training involves learning to be skeptical and scrutinize evidence closely. This is vital - all too often, people lie. Moreover, given technological developments, more and more people have access to programs that allow us to alter videos and photos. Adobe Photoshop is one example - people with minimal computer skills are able to convincingly alter photographs.

This is problematic for U.S. citizens trying to learn about what is happening in Iraq. Journalists have only partial access to much of what is taking place. Moreover, when things go wrong, as they did on July 12, 2007, the information that we have is even more limited. There are military reasons for this - full access would compromise the security of members of the military. At the same time, however, these actions are being taken on behalf of U.S. citizens. We should be able to demand some level of accountability, but given the lack of concrete evidence of what is taking place and the unreliable nature of that which does make it to the media, it is very hard to do so.

Conclusions

Unfortunately, there are no easy solutions - either for this specific situation or for the more general problem of demanding accountability from our military while they are overseas.

As for the July 12, 2007 incident, perhaps a second investigation, or a more in depth investigation is in order. Perhaps it is not - there are limited investigatory resources and need to be cognizant of the incentives that a second investigation would have - it would encourage the posting of unverified and potentially altered videos to obtain more in depth investigations, which isn't what we want.

In relation to the broader issue of accountability, especially since we don't have good evidence of what is happening, we must make our voices heard. We want ethical behavior by our military, and when things go wrong, we want full impartial investigations. Perhaps we should take Eben's advice, and do this the old fashioned way, by protesting. Perhaps we should try something new - online petitions and email campaigns are two quick examples. But if we want to prevent incidents like these in the future, we need to make it clear to the U.S. government that we won't stand by idly after one takes place.

A quick note - Ron: after our discussion, I reconsidered my earlier comments and have taken another approach to editing your paper. Please don't hesitate to contact me - either on this page or by email - if you have concerns about the direction I have taken this paper in or if you have additional tips. Many thanks for the explanation, and congratulations on completing the school year. Best wishes for a great summer! -David

This article came out in the New York Times today and involved a discussion of the use of video evidence in the incidents involving NYPD officers pushing Critical Mass riders of bicycles. One of the assertions is that the video evidence was key in securing the charges against/conviction of Patrick Pogan. Not exactly on point, but related both to Ron's original paper and my rewrite, so I figured I'd post it for all who are interested. Best, -David

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r13 - 19 May 2010 - 23:57:27 - RonMazor
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