“’The Dover Ban:’ Wartime Control over Images of Public and Private Deaths”
Brian Gran
Case Western Reserve University
Sociology Department and Law School
Abstract
The Dover Ban currently bans photographs of coffins carrying deceased soldiers from foreign battlegrounds, yet the ban does not extend to coffins carrying “private” civilians. A rationale for the Dover Ban is that it fosters privacy interests of the deceased solder and his or her family, yet it does not extend to private soldiers. Why does the U.S. federal government control images of soldiers, but not civilians serving in military conflicts? This paper analyzes The Dover Ban as a tool of social control of public perceptions of war, examining explanations of why the U.S. federal government forbids photographs of soldiers’ coffins, but not photographs of non-soldiers’ coffins. It examines meanings of public and private in contexts of controversial socio-legal issues surrounding the deployment of private actors in a military conflict. This paper examines the arguments made for the Dover Ban, particularly privacy interests of the deceased soldier. It asks whether and how government’s control of photographs can foster privacy interests. It asks why the federal government attempts to foster privacy interests of public soldiers, but not private soldiers.
What is “the Dover Ban?” Instituted by the Department of Defense, not Congress, this ban prohibits civilians from taking photographs of deceased soldiers. In February 1991, in the context of Operation Desert Storm, the Department of Defense dictated, “Media coverage of the arrival of remains at the port of entry or at the interim stops will not be permitted.” More recently, the Department of Defense ordered, "There will be no arrival ceremonies for, or media coverage of, deceased military personnel returning to or departing from Ramstein airbase or Dover base, to include interim stops.” These bans are called “the Dover Ban” because planes flying from foreign battlegrounds with coffins of deceased soldiers typically land at the Dover Air Force base, although the latter ban extends to the Ramstein, Germany airbase. Prohibitions like the Dover Ban have been part of U.S. military history since the camera’s introduction. Since 1991, each U.S. president has employed the Dover Ban. President George H.W. Bush used the Dover Ban in the first Iraq war, and it continued, with some exceptions, during the Clinton administration. President George W. Bush did not use the Dover Ban in the military conflict of 2001 in Afghanistan, but instituted it in the current Iraq war.
The Dover Ban has been attacked in the press and in the courts, even in the U.S. Senate. The primary criticism is that the Dover Ban censors free speech. Members of the U.S. Senate have challenged the Department of Defense by saying it is preventing the public from being aware of their government’s wartime activities. Some critics contend that the Dover Ban is used to control voters’ perceptions of and, therefore, support of war. The Dover Ban prevents “the American people from seeing the truth about what's happening."
The Dover Ban is defended as a tool of information control. Military officials and their families praise the Dover Ban because it is a tool by which the government protects privacy of the deceased and his or her families. Yet as a legal doctrine, only recently has the Supreme Court extended privacy interests to the deceased. Another defense is that the Dover Ban fulfills another privacy interest, a sacred responsibility to deceased soldiers, which is providing a somber memorial to the dead. In the past, the Dover Ban was defended as a means of preventing “the enemy” from learning of U.S. wartime failures. Given information-gathering capabilities of satellites, this defense has weakened.
Yet the Dover Ban has not applied to all individuals who are fighting in Iraq. The current Iraq war is an example of the fact that military conflicts are often fought by public and private personnel. Although attention has been fitful, many non-soldiers have died in the current Iraqi war. As of today, nearly 2500 U.S. soldiers and approximately 214 non-U.S. soldiers have been killed, while over 340 non-soldiers (American and other nationalities) have been killed. The deployment of private contractors in this war, according to some experts, is unprecedented. After the Pentagon, the second largest contributor to coalition forces is not the United Kingdom, but corporations. Forty-four cases of abuse were recorded at Abu Ghraib; 16 of these cases were committed by employees of private contractors. The Guardian reports that in the first Gulf War, the ratio of private contractors to servicemen and women was 1:100. In the current Iraq war, it is 1:10.
War is often considered one of the most important government responsibilities. Max Weber contended that government holds a monopoly on physical force, which it can delegate. History is replete with delegation of war responsibilities to private contractors. Less clear in contemporary U.S. society is what standards apply to these private contractors. Some experts contend the public purpose doctrine applies to these private contractors because they are serving public functions and fulfilling government responsibilities. Are these military contractors fulfilling public responsibilities? If they are, should federal and military laws apply to them? Other concerns are no less important. By delegating military service to private contractors, democratic accountability is weakened, if not sidestepped. How should we balance privacy interests with public’s interests in war?
In this paper I discuss the history of the Dover Ban and analyze sources of U.S. military policies of photograph bans. Data for this paper include Department of Defense memoranda, policies and regulations, federal judicial opinions, and instances where the Dover Ban was or was not imposed. This paper then describes arguments made for and against the ban, and considers social, political, and legal implications of the ban. It then asks whether private military contractors involved in the current Iraq war are sufficiently public for laws and related expectations to apply. To answer this question, this paper will contrast characteristics and work of private military contractors with public military service. How are private and public providers different? This paper will then examine why the Dover Ban has not been applied to private military contractors. It will consider these reasons for non-application to private actors to evaluate arguments for and against the Dover Ban.
By examining how government attempts to control photography and its subjects, this paper contributes to debates about what is public and private. The Dover Ban represents an important instance of government attempting to justify its objectives by declaring its means further the privacy interests of individuals and their families. How can government control of photographs foster privacy interests? Why does the Department of Defense attempt to regulate privacy interests of public soldiers, but not private soldiers?
