The Australian versus Tony Kevin – analysis of Australian Press Council decision of 30 March 2005 to dismiss my defamation complaint against The Australian

and

Two recent highly credible mainstream media reports from
the ruins of Fallujah

-commentary by Tony Kevin , 4 May 2005

One sees, in both the Tyson and Steele-Jamahl reports reproduced below, conscientious efforts to portray facts, by senior professional reporters who were clearly distressed and disturbed by what they saw and heard in Fallujah.

I do not think, on the basis of reading these two reports, that their authors would have any disagreement with my depiction last November of the coalition forces’ destruction of the city of Fallujah as a major war crime comparable to the destructions of Guernica and Grozny. Indeed, the Steele/Jamahl article says precisely this. The Australian Press Council may have dismissed my case against ' The Australian’, but the facts speak otherwise.

* * *

Readers interested in the mechanisms through which the public expression of dissident opinion on sensitive issues like the coalition’s war in Iraq is reviled and marginalised in Australia, will find the following factual account of my recent experiences with The Australian’s editorial management and the self-regulatory body the Australian Press Council ( APC) illuminating..

It is followed by two recent authoritative international media reports on what life is like for the few people left struggling to stay alive in Fallujah, out of its original population last October of 250,000 ( the same size as my home city of Canberra) before the occupying coalition’s decision to destroy the city in order to send a deterrent message to Sunni insurgents in Iraq. One story is from the Washington Post and the other from the UK Guardian.

Readers of this piece may first want to refresh their memory on this article last 25 November:

http://tonykevin.com/MediaReleaseFallujah.html

Media Release: "Fallujah and The Australian - another shameful day for a once great Australian newspaper."

– Tony Kevin, Canberra 25 November 2004

Extracts from that article:

"What is far more important than my public reputation is that in its excisions, ‘The Australian’ took out of my letter the very sentences that gave it credibility and strength: the judgements of senior US media columnists Jonathan Schell, Jim Hoagland and Mark Bowden that the real purpose of the US destruction of Fallujah was exemplary collective punishment of a city that had sheltered insurgents; the concerns of the UN High Commissioner for Human Rights Louise Arbour and the International Red Cross that the US attack on Fallujah had involved war crimes; the admission of Defence Minister Robert Hill that Australian defence force personnel seconded to US forces had probably been involved in the planning and execution of the US attack on Fallujah; and the references to un-embedded news reporting sources Xinhua and Al Jazeera."

"The indiscriminate and disproportionate use of weapons of mass destruction (cluster bombs, flesh-melting phosphorus weapons, 2000 kg blockbuster bombs) in a civilian-inhabited city, of itself defines Fallujah as a war crime under the Geneva Conventions."

Without all this, my letter was left simply as the unsupported expression of one person’s opinion.

Clearly, those facts were too disturbing to be allowed to reach readers of The Australian ..

 

Background:

I had published an opinion piece about the destruction of Fallujah in The Sydney Morning Herald on 9 November 2004: "All the makings of a war crime - with Australia silently onside". My thanks to SMH Opinion Page Editor Dr Julia Baird for having the courage to run this controversial piece:

http://tonykevin.com/WarCrime1.html

It was temperately written, drawing on reputable multi-source media reporting from Iraq, UK and US sources. It predicted, on the basis of factual evidence already being quoted by the media and on the internet, that the US Army’s attack on insurgents in the Sunni city of Fallujah then just getting underway would be a war crime entirely comparable in scale and degree to notorious 20^th century wartime destructions of civilian cities, e.g. Guernica, Oradour, Lidice, Warsaw, and Grozny. My prediction was validated by subsequent news of what the US army (assisted in some degree by British and Australian military planners and seconded soldiers) did in Fallujah.

My SMH piece was apparently too much for The Australian’s staff writer Janet Albrechtsen to tolerate. Two weeks later, with Fallujah pretty well reduced to rubble by then, she wrote a vituperative opinion piece in The Australian on 24 November, 2004, "Knee-jerk judgements", that mocked my views in a most personally abusive way, while offering no factual counter-arguments to those I had put forward in my SMH piece (which had made no reference either to Albrechtsen or to The Australian). She described the war crime claim as "grotesque". She described my comparison made with the actions of the Nazis in Warsaw as "morally offensive and intellectually bankrupt". She wrote that the mentioning of Warsaw in 1944 and of Grozny in 1999 in the same breath as Fallujah in 2004 could only be done by those "unconcerned with facts and blinded by political motivations, by a knee-jerk anti-Americanism". She then discussed the inadequacies of international law by reference to "these hysterical claims".

I asked Tom Switzer, Opinion Editor of The Australian, for the chance to write a responding opinion piece in that newspaper. He refused, but instead offered in writing that if I wrote a letter, he would ensure it got in. I submitted a 350 word letter – a reasonable length, I thought, in circumstances where my views had been singled out for such exemplary abuse by Janet Albrechtsen.

The next day, without anyone from The Australian contacting me, a drastically shortened 150-word version of my letter was published. The nature of the deletions is clear from the above extracts – all validating data and sources had been removed. Both versions of my letter appear in full in my 25 November website article.

I then submitted a complaint to the Australian Press Council in early December, for mediation and judgement. In order to do so, I had to waive any right to sue The Australian. I thought I had a strong case given the above facts.

After two months’ silence, The Australian responded to the APC uncompromisingly, on 28 February. It said it would not apologize and it would not publish my original 350 word letter. This meant APC Complaints Committee judgement on the dispute was the only course.

The APC Chair, Professor Ken McKinnon, decided on the very same day that the case must be heard at the next scheduled hearing of the Complaints Committee, on 30 March, even though I had previously informed the APC that I would be overseas on this date and I had requested postponement of the APC hearing till my return. McKinnon rejected my appeal to APC to delay hearing the case until the next meeting on 5 May, at which I could be present. He ruled that, to provide balance ( sic) , representatives of The Australian would not appear at the hearing on 30 March either – a concession The Australian had offered to the APC. I accepted McKinnon’s decision reluctantly. I had no choice, short of withdrawing my complaint from the APC.

The APC decision was conveyed to me on 4 April and published in full in The Australian on 12 April. It reads as follows:

http://theaustralian.com.au/common/story_page/0,5744,12828193%255E7582,00.html

Complaint against The Australian dismissed - 12 April 2005

THE Australian Press Council has dismissed a complaint brought by Tony Kevin against The Australian arising from an article published on the Opinion page and from the editing of a letter in response to it.

The Australian published in its November 24, 2004, edition an opinion piece written by the columnist, Janet Albrechtsen, entitled "Knee-jerk judgments".

The article sought to counter the claim that the US-led attack on Fallujah was a war crime. It also highlighted perceived inadequacies of the international law regime in the current climate of terrorism.

Specific reference was made to the claim of war crime in an opinion article written by the complainant, Mr Kevin, which was published in The Sydney Morning Herald, and his further statement that Australia, for having soldiers in Iraq, was morally complicit in these war crimes.

The Albrechtsen article also contained the following:

"'This will be no neat, surgical strike,' Kevin wrote. 'To get the measure of this, think of the Warsaw rising in 1944, or the Russian army's destruction of the Chechen capital, Grozny."’

The columnist described the war crime claim as "grotesque". The comparison made with the actions of the Nazis in Warsaw was described by her as "morally offensive and intellectually bankrupt"; the mentioning of Warsaw in 1944 and of Grozny in 1999 in the same breath as Fallujah in 2004 could only be done by those "unconcerned with facts and blinded by political motivations, by a knee-jerk anti-Americanism". The columnist then discussed the inadequacies of international law by reference to "these hysterical claims".

After communications between the complainant and the newspaper over the article, the complainant agreed to a suggestion that he should write a letter to the editor. The complainant wrote a 350-word letter that was edited to 150 words by the letters editor and published the next day.

The nub of the complaint was that the editing of the letter resulted in a published letter which "was simply a set of unsupported assertions in my personal opinions on the US armed attack on Fallujah" and that the deleted 200 words "included all of the factual and referential underpinnings in my submitted letter, thereby gutting it of intellectual context and credibility".

The complainant made it clear that he was not claiming that the newspaper had changed the meaning of his letter. He also acknowledged that the article was "robustly critical" of his views.

The complainant has published his views in The Sydney Morning Herald Opinion page, his own website and in a speech in Sydney. He has entered into public debate and therefore it is not unreasonable that his argument could be "taken to task by a columnist in another paper". The prompt publication of his letter, in an edited form, was a reasonable response by the newspaper. The complaint that the editing down of the letter was in violation of an alleged agreement by the newspaper to publish the submitted letter in its exact form is not tenable. The council has made it clear that newspapers have a right to edit a letter provided that such editing does not change the meaning or tenor of the letter. ENDS

 

Although the APC decision went against me, in that my complaint was dismissed, I take a degree of comfort from its lengthy wording. This suggests it was not a simple case to decide. The long decision text may reflect recognition by at least some members of the Council that my complaint had merit. I imagine there was debate. The nature of Albrechtsen’s personally abusive remarks is reported quite fully in the APC decision, as is the reason for my objection to the truncation of my letter and the removal of all cited factual evidence from it.

I profoundly disagree with the APC’s judgement that the shortened 150-word letter had accurately conveyed "the meaning and tenor" of my 350-word letter. I find this a very strange view coming from a professional media self-regulating body. Surely the issue here is whether my view that the US destruction of Fallujah is a war crime was well-based in factual data or not. Readers of The Australian were given no chance to make up their minds on that.

In this way, discussion of a sensitive public issue becomes polarised and personalised. The issue becomes, not "what are the facts on whether the US destruction of Fallujah was a major war crime?", but " Who would you prefer to believe – Janet Albrechtsen or Tony Kevin?" This is how newspapers like The Australian are training their readers not to think about the substance of sensitive issues. Everything gets reduced to personalities and their presumed ideological footprints.

I don’t believe this is how reasoned intellectual argument should proceed in an informed democracy. I would have thought the APC as a professional media council would have understood the value that I was trying to defend, in making my complaint about the conduct of The Australian in this matter. I was wrong.

* * *

As to the current facts on Fallujah, I have found on Google News two illuminating recent reports which are unlikely to appear in The Australian. First, an article in the Washington Post, datelined 19 April, by staff journalist Anne Scott Tyson:

http://www.washingtonpost.com/wp-dyn/articles/A64292-2005Apr18.html

Increased Security In Fallujah Slows Efforts to Rebuild

FALLUJAH, Iraq -- On a sweep through southern Fallujah, U.S. Marines uncovered a suspected insurgent safe house: four Iraqi men of military age living alone in a small, unkempt dwelling with a Russian heavy machine gun, ammunition and two grenades buried in the front yard.

The Marines were handcuffing and blindfolding the men when a middle-aged woman, cloaked in a black abaya, rushed to the front door: "My son is innocent!" she pleaded. "He is working here digging for the water pipes."

Outside the house, a churned-up strip of earth ran down the center of the road. An Iraqi construction engineer confirmed that the four men were among the 78 workers he had hired as part of a $28 million project to build a new sewerage system in Fallujah. Still, the Marines detained the four for questioning.

"Of course, this will stop our work," said Sattar Saed, the engineer managing the project, explaining that the four men all drove heavy equipment. "If they spend a week in jail, that's a long time."

In last November's U.S.-led offensive in Fallujah, dozens of U.S. troops, hundreds of insurgents and an unknown number of civilians were killed. Now, curfews, checkpoints and other stringent security measures are being used to prevent the city from falling back into insurgent hands. But enhancing security is hampering efforts to rebuild. Checkpoints choke the influx of supplies and business, ultimately slowing the creation of jobs needed to give young people an alternative to joining the insurgency for money.

"If you don't have enough people flowing in to sustain commerce, you will stunt growth," said Capt. Rudy Quiles, a Marine civil affairs officer here. Letting more people and goods into Fallujah "is a risk we're going to have to take at some point for the good of the city." He estimated that 85 percent of people in Fallujah were unemployed or underemployed.

Col. Charles M. Gurganus, commander of the 8th Marine Regiment, which oversees the region that includes Fallujah, said the security measures have ensured that "Fallujah probably is the safest place in al-Anbar province … We keep a pretty tight clampdown on this place."

Many people here say they do feel safer, but resent the restrictions on their daily lives. Personal weapons are banned throughout the city. A 7 p.m. curfew keeps residents off the streets but also away from mosques for evening prayers. At night, a military escort is needed to obtain emergency medical care.

Gabshe Hamed, a mother with a large family, sat barefoot in her parlor recently, fingering worry beads. "Before, we were afraid of the Air Force planes and praying before we slept each night. Now we feel safer, but we suffer from the curfew because we can't go to the hospital." This is of particular concern to Hamed, who has a heart condition.

U.S. and Iraqi troops oversee four checkpoints on major roads, allowing in only documented residents, contractors, government officials or allied military forces. Residents describe delays at the checkpoints of four hours or more, although Marine officials say the average wait is far shorter. The troops pull aside men of military age for an iris scan and thumbprint, building a computer database of potential insurgents.

"We have to be very careful how we repopulate the city. We paid too high a price to hand it back," said Maj. Phillip Zeman of the 3rd Battalion, 4th Marines, a unit that patrols the southern half of Fallujah.

With white flags still poking from doorways and the words "Here Family" spray-painted on walls to alert U.S. forces, Fallujah's landscape is cluttered with debris from a bombardment last November that made the 2003 invasion here seem mild.

Nearly all of the city's estimated 250,000 residents fled before the fighting started, and about 90,000 have returned to find wide swaths of the town in ruin. More than half of Fallujah's 39,000 homes were damaged, and about 10,000 of those were destroyed or left structurally unsound to live in, U.S. officials say. Limited food and fuel supplies mean higher prices and lines that can reach 100 cars at government gas stations.

More than half of Fallujah has no electricity, which is needed to pump water. The bombing caused hundreds of leaks in the city water system and about 60 percent of households must rely on water stored in tanks.

Wearing a white tunic called a dishdasha, sunglasses and headdress, Hamid Taha, a district leader, brushed his hands together when asked about local electricity. "There is no power in our area," he said. Running water is available about three or four hours a day. About half of the 5,000 houses in his district are damaged. But Taha said he worried most about the lack of work.

"Most people in Fallujah now can't get any job. This is our biggest problem. Some people sell their furniture or TV to get money. They also borrow money from rich families," said Taha, who relies on a $140 monthly retirement check from the Defense Ministry.

Others are surviving so far on one-time payments -- $100 from the Iraqi government and $200 from the United States. Homeowners can also receive 20 percent of the value of damaged houses, with an estimated 32,000 homeowners eligible, said Marine Lt. Col. William Brown of the 5th Civil Affairs Group. Yet for some, those payments are already running out.

Fasil Ali, an unemployed tractor driver, has been living for two months with his wife and nine children in a tent near the brick rubble of their demolished home. "Most of that money is gone, so I'm borrowing from relatives now," he said as his wife held a naked toddler nearby. "There is no work."

"What did we do to have to live like this?" said Ali Hussein, a neighbor whose home was also destroyed.

In an effort to generate work, Iraqi officials have identified 65 projects for Fallujah worth $100 million, including a $30 million electricity distribution system, $7 million in water system upgrades and the sewerage project. New schools, police stations, clinics and water treatment plants are underway.

Still, rebuilding is progressing slowly, not only because of security controls but also because Fallujah lacks an established government "to make the appropriate decisions," said Maj. James Orbock, an Army civil affairs official.

On March 30, a transitional "Fallujah working group" chose a 21-person temporary city council, but the city still lacks an official mayor.

"That's the conundrum of Iraq: Which Iraqi leaders are going to do the most good for the most people?" said Lt. Col. Andrew Kennedy, who commands the 3rd Battalion. Of the new council, he said, "We're a little concerned about the affiliations" of some members.

Meanwhile, insurgents have not given up on Fallujah. "Even though the mujaheddin lost this battle, they will come back," declared one sign. Others urged "defeat the Americans" and said, "Long live the mujaheddin."

"They are in there, they are operating, but they're still limited in what they can do," said Zeman, noting that a handful of roadside bombs and a car laden with explosives had been discovered in the city this month.

There is a feeling of deja vu about rebuilding Fallujah a second time, combined with questions from local residents and U.S. commanders alike about why it is necessary. "If only we had had the resources, the civil affairs, back when we were here in May 2003. We were asking, but we didn't get them," Kennedy said.

Zeman agreed: "Nobody's happy the way Fallujah got solved." .ENDS.

 

 

Second, here is a recent report by The Guardian's senior foreign correspondent and a leading Iraqi journalist:

http://www.guardian.co.uk/Iraq/Story/0,2763,1471169,00.html

 

"This is our Guernica - Ruined, cordoned Falluja is emerging as the decade's monument to brutality", by Jonathan Steele and Dahr Jamail, Wednesday April 27, 2005, The Guardian

Robert Zoellick is the archetypal US government insider, a man with a brilliant technical mind but zero experience of any coalface or war front. Sliding effortlessly between ivy league academia, the US treasury and corporate boardrooms (including an advisory post with the scandalous Enron), his latest position is the number-two slot at the state department.

Yet this ultimate "man of the suites" did something earlier this month that put the prime minister and the foreign secretary to shame. On their numerous visits to Iraq, neither has ever dared to go outside the heavily fortified green zones of Baghdad and Basra to see life as Iraqis have to live it. They come home after photo opportunities, briefings and pep talks with British troops and claim to know what is going on in the country they invaded, when in fact they have seen almost nothing.

Zoellick, by contrast, on his first trip to Iraq, asked to see Falluja. Remember Falluja? A city of some 300,000, which was alleged to be the stronghold of armed resistance to the occupation.

Two US attempts were made to destroy this symbol of defiance last year. The first, in April, fizzled out after Iraqi politicians, including many who supported the invasion of their country, condemned the use of air strikes to terrorise an entire city. The Americans called off the attack, but not before hundreds of families had fled and more than 600 people had been killed.

Six months later the Americans tried again. This time Washington's allies had been talked to in advance. Consistent US propaganda about the presence in Falluja of a top al-Qaida figure, Abu Musab al-Zarqawi, was used to create a climate of acquiescence in the US-appointed Iraqi government. Shia leaders were told that bringing Falluja under control was the only way to prevent a Sunni-inspired civil war.

Blair was invited to share responsibility by sending British troops to block escape routes from Falluja and prevent supplies entering once the siege began.

Warnings of the onslaught prompted the vast majority of Falluja's 300,000 people to flee. The city was then declared a free-fire zone on the grounds that the only people left behind must be "terrorists".

Three weeks after the attack was launched last November, the Americans claimed victory. They say they killed about 1,300 people; one week into the siege, a BBC reporter put the unofficial death toll at 2,000. But details of what happened and who the dead were remain obscure. Were many unarmed civilians, as Baghdad-based human rights groups report? Even if they were trying to defend their homes by fighting the Americans, does that make them "terrorists"?

Journalists "embedded" with US forces filmed atrocities, including the killing of a wounded prisoner, but no reporter could get anything like a full picture. Since the siege ended, tight US restric tions - as well as the danger of hostage-taking that prevents reporters from travelling in most parts of Iraq - have put the devastated city virtually off limits.

In this context Zoellick's trip, which was covered by a small group of US journalists, was illuminating. The deputy secretary of state had to travel to this "liberated" city in a Black Hawk helicopter flying low over palm trees to avoid being shot down. He wore a flak jacket under his suit even though Falluja's streets were largely deserted. His convoy of eight armoured vehicles went "so quickly past an open-air bakery reopened with a US-provided micro-loan that workers tossing dough could be glanced only in the blink of an eye," as the Washington Post reported. "Blasted husks of buildings still line block after block," the journalist added.

Meeting hand-picked Iraqis in a US base, Zoellick was bombarded with complaints about the pace of US reconstruction aid and frequent intimidation of citizens by American soldiers.

Although a state department factsheet claimed 95% of residents had water in their homes, Falluja's mayor said it was contaminated by sewage and unsafe.

Other glimpses of life in Falluja come from Dr Hafid al-Dulaimi, head of the city's compensation commission, who reports that 36,000 homes were destroyed in the US onslaught, along with 8,400 shops. Sixty nurseries and schools were ruined, along with 65 mosques and religious sanctuaries.

Daud Salman, an Iraqi journalist with the Institute for War and Peace Reporting, on a visit to Falluja two weeks ago, found that only a quarter of the city's residents had gone back. Thousands remain in tents on the outskirts. The Iraqi Red Crescent finds it hard to go in to help the sick because of the US cordon around the city.

Burhan Fasa'a, a cameraman for the Lebanese Broadcasting Company, reported during the siege that dead family members were buried in their gardens because people could not leave their homes. Refugees told one of us that civilians carrying white flags were gunned down by American soldiers. Corpses were tied to US tanks and paraded around like trophies.

Justin Alexander, a volunteer for Christian Peacemaker Teams, recently found hundreds living in tents in the grounds of their homes, or in a single patched-up room. A strict system of identity cards blocks access to anyone whose papers give a birthplace outside Falluja, so long-term residents born elsewhere cannot go home. "Fallujans feel the remnants of their city have been turned into a giant prison," he reports.

Many complain that soldiers of the Iraqi national guard, the fledgling new army, loot shops during the night-time curfew and detain people in order to take a bribe for their release. They are suspected of being members of the Badr Brigade, a Shia militia that wants revenge against Sunnis.

One thing is certain: the attack on Falluja has done nothing to still the insurgency against the US-British occupation nor produced the death of al-Zarqawi - any more than the invasion of Afghanistan achieved the capture or death of Osama bin Laden. Thousands of bereaved and homeless Falluja families have a new reason to hate the US and its allies.

At least Zoellick went to see. He gave no hint of the impression that the trip left him with, but is too smart not to have understood something of the reality. The lesson ought not to be lost on Blair and Straw. Every time the prime minister claims it is time to "move on" from the issue of the war's legality and rejoice at Iraq's transformation since Saddam Hussein was toppled, the answer must be: "Remember Falluja." When the foreign secretary next visits Iraq, he should put on a flak jacket and tour the city that Britain had a share in destroying.

The government keeps hoping Iraq will go away as an election issue. It stubbornly refuses to do so. Voters are not only angry that the war was illegal, illegitimate and unnecessary. The treatment inflicted on Iraqis since the invasion by the US and Britain is equally important.

In the 1930s the Spanish city of Guernica became a symbol of wanton murder and destruction. In the 1990s Grozny was cruelly flattened by the Russians; it still lies in ruins. This decade's unforgettable monument to brutality and overkill is Falluja, a text-book case of how not to handle an insurgency, and a reminder that unpopular occupations will always degenerate into desperation and atrocity.

 

Jonathan Steele is The Guardian's senior foreign correspondent; Dahr Jamahl is a freelance American journalist.

 

Conclusion:

One sees, in both the Tyson and Steele/ Jamahl reports reproduced above, conscientious efforts to portray facts, by senior reporters who were clearly distressed and disturbed by what they saw and heard in Fallujah.

I do not think, on the basis of reading these two reports, that their authors would have any disagreement with my depiction last November of the coalition forces’ destruction of the city of Fallujah as a major war crime comparable to Guernica and Grozny, . Indeed, the Steele/Jamahl article says precisely this.

The Australian Press Council may have dismissed my case against The Australian, but the facts speak otherwise.

Tony Kevin, Canberra, 4 May 2005