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MADELEINE BRAND, host:

From the studios of NPR West, this is DAY TO DAY.

How close is too close when you're covering a war? I'm Madeleine Brand.

ALEX COHEN, host:

And I'm Alex Cohen.

We'll spend this part of the program trying to answer that question.

This story involves an Iraqi photojournalist named Bilal Hussein who worked for the Associated Press.

BRAND: Bilal Hussein has been imprisoned in Iraq for the last 19 months. He's not sure why he's being held by the U.S. military, and he could find out this week. Formal charges are expected as soon as Thursday.

COHEN: Bilal Hussein has been accused of being part of the insurgency. One of his photos was part of the AP's Pulitzer Prize-winning package two years ago. It's a shot of insurgents firing on Americans during the battle of Fallujah.

BRAND: And you can see that photo on our Web site, npr.org.

I spoke with Bilal Hussein's lawyer just before he left for Baghdad. Paul Gardephe is a former federal prosecutor. The Associated Press hired him to investigate the case.

I asked him how the AP hired Bilal Hussein as a photographer in the first place.

Mr. PAUL GARDEPHE (Attorney): He was approached by another stringer for the AP in the summer of 2004 and asked to escort the reporter around Fallujah, his native town. It was obvious from those contacts that Bilal and his family were well-known in the community and it rapidly became clear he was a very talented photographer.

BRAND: So he was there in Fallujah when the battle of Fallujah occurred...

Mr. GARDEPHE: That's correct.

BRAND: ...which was a very, very fierce battle between the U.S. military and insurgents in Fallujah, and he was on the ground taking pictures, some of which ended up part of the AP's Pulitzer Prize-winning package of photography.

Mr. GARDEPHE: The photograph that was his contribution, it showed four insurgents engaged in battle. In other words, I think one was firing a mortar at the time; others were in sort of action poses, if you will. It was a snap photograph that was taken in an instant when they were on the street. He was actually hidden in a furniture store when he took the photograph. Just very briefly he snapped that photograph, and that was the one that was included in the AP submission.

BRAND: So then how did he come to be arrested?

Mr. GARDEPHE: Well, he was arrested about two years later, in April 2006. The reasons why are very unclear. And the timing is equally unclear.

BRAND: In your report - because you have gone to Iraq, interviewed him and written a report for the AP - you say there are various allegations against him, one of which that he had bomb-making equipment in his apartment.

Mr. GARDEPHE: Right, right.

BRAND: That he volunteered to provide false identification. And is that it? Are those the charges against him?

Mr. GARDEPHE: There have been no formal charges made against him. There have been a number of allegations that have been disseminated by the military, for example, with respect to the allegation about bomb-making equipment. But what he told me when I met with him in March is that after his arrest he was brought downstairs to an electrical repair shop on the ground floor of his building, and a number of photographs were taken of him standing next to broken electrical equipment in the shop. It's not a shop that he had any connection to, nor did he had access to it. That's the only thing that we can think of that they're talking about when they refer to bomb-making equipment.

BRAND: Are there any allegations that - by the military and by others - that he may have been in cahoots with the insurgency to get access to the insurgents and to be able to take these pictures?

Mr. GARDEPHE: There have been assertions that he's too close with the insurgents, that he's associated with the insurgents. It's all very vague. As you know, photojournalists in a war setting are in a very difficult position. They are viewed with suspicion by both sides. Most of the local photographers who are serving media organizations, news organizations, were arrested and held for periods of time, up to and including five or six months. So there was nothing unusual about his arrest. The only thing unusual though in Bilal's case is the period of time of that incarceration.

BRAND: And what kind of punishment is he facing?

Mr. GARDEPHE: It depends on what statute he's charged under. If he's charged under the anti-terrorism law in Iraq, there's only one penalty provided for, and that's death.

BRAND: Or the U.S. military could decide they don't have enough to hold him and release him.

Mr. GARDEPHE: Well, we have felt based on, again, the information that's available to us that that is the appropriate course. We believe that he should be released.

BRAND: Paul Gardephe is a former federal prosecutor. He's representing Associated Press photographer Bilal Hussein.

Paul Gardephe, thanks for joining us.

Mr. GARDEPHE: My pleasure.

BRAND: We're joined now by Navy Rear Admiral Greg Smith. He is the military spokesman in Iraq.

Welcome to the program.

Rear Admiral GREG SMITH (U.S. Navy): Thank you for having us.

BRAND: Now, there haven't been formal charges unveiled yet. That's expected to happen this week. What is military saying so far about Bilal Hussein and what he did?

Rear Admiral SMITH: Well, as you know, he was arrested and detained in April 12th of 2006. At that time he was unknown to us to be an Associated Press photographer. Coalition forces detained him because of his possession of improvised explosive device materials and other propaganda material from insurgents and also surveillance photography that was found in his home. Those were the reasons why he was detained back in April of 2006.

BRAND: Now, his lawyer is saying that he was in essence set up, that he was brought downstairs to an electrical repair shop that was in the bottom of his building - it had been broken into - and was posed next to pieces of electronic equipment and photographed by the military. And that's the evidence that he has seen so far.

Rear Admiral SMITH: We're not going to try this case in a public court. The case is going to go to trial here in the coming days. An Iraqi court will hear the case of an Iraqi citizen, in this case Bilal Hussein, and the information will be presented to the judge and the judge will make a determination whether sufficient evidence exists to file charges against Hussein. And then from that point on the courts will take its matter into its own hands and deal with the situation.

BRAND: Who will be prosecuting this case, if you will? Will it be brought by the U.S. military?

Rear Admiral SMITH: The way it works is the government will be the referring plaintiff, if you will, and so they'll bring the charges or the evidence before the judge. The judge then will determine what charges to file and then proceed from that point forward.

BRAND: The Iraqi government?

Rear Admiral SMITH: That's correct.

BRAND: What role, if any, will the U.S. military have in this?

Rear Admiral SMITH: In essence, they'll participate as the prosecution team. They will develop and have developed the evidentiary material since his detention, that all that material will be presented by military lawyers to the Iraqi court.

BRAND: Are his photos at all, especially the photo that was included in the Pulitzer Prize-winning package by the Associated Press, are those photos considered evidence at all?

Rear Admiral SMITH: The evidence of his photography that associates itself with potential events that appear to indicate that he was on scene as improvised explosive devices were being detonated will certainly be part of that evidentiary material.

BRAND: On scene taking pictures or on scene participating?

Rear Admiral SMITH: To our knowledge on scene taking pictures. The degree to which he was participating, that's for the judge to determine.

BRAND: How common is it for the U.S. military to detain and question photographers on scene who've been taking pictures of insurgents?

Rear Admiral SMITH: He was not detained because he's a photographer. He was detained following observation of (unintelligible) materials and other materials in his home as part of a military operation. Later we determined that he was an Associated Press photographer, and so the basis of his detention had nothing to do with the fact that he's a photographer.

BRAND: Navy Rear Admiral Greg Smith, military spokesman in Iraq.

Thanks for joining us.

Rear Admiral SMITH: You bet. Anytime.

BRAND: Joining me now is Ashley Gilbertson. He's a photojournalist and author of the new book "Whiskey Tango Foxtrot," about the challenges of being a photographer in Iraq.

Welcome back to DAY TO DAY, Ashley.

Mr. ASHLEY GILBERTSON (Photojournalist): Thank you.

BRAND: Well, tell us more about these challenges and in particular the ethical considerations that you have when covering a war. How do you avoid becoming, well, an operative for either side?

Mr. GILBERTSON: Well, I mean it can certainly be argued by the insurgents that we're operatives of the American side. I mean, you know, working for the New York Times, I mean, you know, we're embedded with thousands of American units. And you know, given that we only get to see, I mean really, one side of the story, and then, you know, of that, say, a quarter of the entire story that's actually going on, like it has been argued many times that we're an arm of the, of the, you know, propaganda wing of the government, which is of course not true and I disagree with it. Except that's essentially what the government is saying about photographers who have spent time on the other side.

Now, we've got foreign and Iraqi photographers that have spent time, you know, with the Mahdi Army, like who have interviewed insurgents and photographed them. Now, I don't think that there's any ethical concern at all. I mean, we're cover - it's war. And we are obligated, as the press, to cover it. Now, if the American government wants to prosecute photographers and reporters for talking to the insurgency, I mean, that to me would seem like a definite restriction of the free press.

BRAND: Now, what if - and I'm not saying this happened at all - but what if you as a photographer there got a tip from the insurgents that they were going to launch an offensive, and well, they're going to be at a certain place at a certain time and you're welcome to come and get these exclusive photos?

Mr. GILBERTSON: I don't think that that's going to happen. I mean - I mean, I can only understand this through the American military perspective, you know, when being with them. And they say, come with us. We're doing an operation. They don't tell you where. They don't tell you against whom. They don't give you any details except be at the base at 3:00 o'clock and then you go out some time that night.

Now, with the insurgents, I mean, you know, it would certainly create a massive ethical dilemma with me. Thankfully, that's a bridge that I haven't had to cross. I mean - and I really don't know what on Earth I would do should I have to make that decision.

BRAND: Is it a problem that Iraqi journalists, Iraqi photojournalists face more than Western journalists?

Mr. GILBERTSON: Certainly. I mean the Iraqis are getting, you know, much, much better access than the Westerners. I mean, you look at some of the more extremist groups that were working in Iraq and, you know, we were really seen as the enemy, whereas Iraqi journalists, Arabic journalists, you know, like Al-Jazeera and things like that were, you know, much more - were given much more access to the insurgency. So it is certainly a problem that's facing them a lot more than it is, you know, Westerners that are working there.

BRAND: And what's the responsibility of the Western media outlets that hire these journalists, the AP in this instance, to make sure that ethics are being followed?

Mr. GILBERTSON: Well, I mean I think it's just keeping people on a tight leash. I mean, a lot of the photographers in Iraq and journalists in Iraq, you know, they - they're not used to the standards that we work with. Now, it is a question of a lot of training and making sure that, you know, we're constantly talking about the ethics that are involved. I mean, it's, you know, it's just repeating yourself over and over again until, you know - you know, we go to college for years for this stuff. And these guys have had to learn like on the ground in a matter of weeks.

BRAND: And what do you tell them? What are the things you say you must not do?

Mr. GILBERTSON: The first thing is never ever set up a picture. You know, you have to discipline the photographers so they understand that is not the kosher, halal, whatever.

(Soundbite of laughter)

BRAND: And what do you tell them about this kind of situation where you might get a little too close to the insurgents?

Mr. GILBERTSON: I mean, I don't know. Like, I don't really - like we need that side of the story. So you know, you can't get too close, of course. I mean, you can't become one of the insurgents. And I - you know, I think that as far as my understanding goes, you know, with the U.S. military, like, sure - like I'll, I'll, you know, I photograph these guys and I try to keep as low profile as I can and I try to, you know, not be involved. I try to be as objective and as neutral and, you know, as little of a hindrance to what they're doing as possible. Now, I hope that that would be exactly the same as, you know, Iraqis working or Arabic press working with insurgents.

BRAND: Ashley Gilbertson, photojournalist and author of the new book "Whiskey Tango Foxtrot."

Thanks for joining us.

Mr. GILBERTSON: Thanks, Madeleine.

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