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

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.

Concerns

When I began to analyze my source more critically, I was shocked by how many things I had taken for granted. I quickly discovered that I could not, for example, draw a straight line from WikiLeaks to the Apache video. Rather than hosting the video outright, the WikiLeaks site was referring viewers to Youtube to view a video hosted by "sunshinepress," and to a second website entitled CollateralMurder for further info. Off the bat, I needed to assume that "sunshinepress" was accurately hosting the Wikileaks footage, and that WikiLeaks, CollateralMurder, and "sunshinepress" were indeed affiliated with the Wikileaks organization.

I was further surprised to discover that I could not verify the validity of the gun camera footage. The Pentagon has not released an official statement confirming the validity of the footage. And while a number of reputable news sources, including the New York Times, Reuters, and the Associated Press claim to have confirmed the video's authenticity, all relied on unnamed sources. Thus, I could not point to incontrovertible evidence that the footage is valid.

Further issues cropped up. Wikileaks significantly edited the short video, playing with the chronology of the events and emphasizing certain scenes to heighten the emotional impact. Having already shown a willingness to play fast and loose with facts, could I really trust that Wikileaks had left the longer version "unedited?" Moreover, the source itself seemed to contain gaps in footage, as recently recognized by Wikileaks (Gawker, CNN at 1:20). My faith that the video was a clear and sufficient source of evidence was misplaced.

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.

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, a Daoist philosopher, was among the authors I read. A couple of ideas struck me as particularly relevant to this topic. There is the notion of relativity and perspective: what seems natural to a fish seems wrong to a snake, yet who is qualified to judge which is more correct? There is the error of intellectual overconfidence--believing unknowable things to be knowable, or, in a more basic sense, believing that one knows anything at all. Finally, there is the example of the perfect man--an individual who, among other things, does not struggle against the facts of life but embraces all things as they are, good and bad.

My reading of Zhuangzi brought home the need to maintain an open and critical perspective towards evidence. Work in progress...

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