Untangling the legalities in a name
The detention by the US of Al Qaeda and Taliban fighters in Guantanamo Bay, Cuba, has become controversial in both foreign capitals and Washington itself. Currently the Bush administration is calling the prisoners "unlawful combatants," an ill-defined category which allows the US wide latitude in how to handle them. Some US allies, however, are arguing that the detainees should be granted prisoner-of-war status, and the full protection of the Geneva Conventions.
The US has flown 158 prisoners captured in Afghanistan to the Guantanamo Bay Naval Base. Transport of an additional 270 prisoners is on hold pending the construction of more permanent detention facilities.
Only about 15 percent of the prisoners are Afghans. The rest are from 25 different nations, which the Department of Defense has so far declined to specify. Countries whose officials have said their citizens are being detained include Britain, Sweden, Yemen, Saudi Arabia, France, and Australia.
It is likely that the detainees include both Al Qaeda followers of Osama bin Laden and the soldiers of Afghanistan's now-toppled Taliban regime. The Miami Herald, for instance, has reported that the Taliban Army chief of staff is among those already at Guantanamo.
Widely-distributed photos of shackled detainees kneeling upon their arrival in Cuba caused an uproar in Europe. Some allies questioned whether the US was engaging in psychological or even physical torture.
The Bush administration vehemently denies this. All detainees are being treated humanely, administration officials say. They are being fed properly, provided with medical care, and allowed to practice their religion. They can send and receive correspondence.
But they are not prisoners-of-war, according to the administration. Classifying them as such might hinder the ability of the US to head off future terrorist attacks.
Instead, the US is officially calling the detainees "unlawful combatants," a label historically given to saboteurs, mercenaries, and spies.
As defined by the Geneva Convention of 1949, a prisoner-of-war is a soldier of a national force captured during combat. Such a prisoner must have carried arms openly, been part of a recognized hierarchy, and conducted operations in accordance with thelaws and customs of war.
Under interrogation, POWs need disclose only their name, rank, serial number, and date of birth. They must be released upon cessation of hostilities.
They can be tried for violations of the law of war - for engaging in a plot to kill civilians in the World Trade Center, for example. But such trials must be the same as those US troops would be subject to - meaning full military courts, as opposed to military tribunals.
The administration's top military priority is preventing further terrorist attacks. Calling the men held in Guantanamo "POWs" would hinder that effort, according to the administration.
Interrogations would be constrained because POWs would not have to answer questions about their knowledge of the inner workings of Al Qaeda, or possible next targets.
Furthermore, the US would come under pressure to begin releasing at least some of the men. The end of military operations in Afghanistan might be defined as the end of at least one major war phase. Yet the longer they are detained, the more time the US has for questioning - and the detainees themselves are prevented from taking part in terrorist action.
More broadly, military officers fear designating Al Qaeda prisoners as POWs would give them legitimacy because POWs are assumed to have rightfully been using force against military targets at the time of their capture.
It might ensure reciprocity. The US wants its own soldiers treated fairly if captured in any future conflict.
It might ensure greater international cooperation in the war on terror, as well. European nations may be more likely to extradite terror suspects to the US in the future if they think the treatment of those now held at Guantanamo is fair.
It could also allow the US to more easily condemn irregular court processes abroad. In the past, the US has criticized foreign countries, such as Peru, that have used secret military tribunals to prosecute rebels accused of terrorism.
Some in the Bush administration, including Secretary of State Colin Powell, are pushing for the US to declare that the detainees are, indeed, subject to the protection of the Geneva Conventions.
That would not mean the detainees would then automatically become POWs. Under convention provisions, the arbiter of the detainees' status would be a screening tribunal of three or more US military officers. During the Vietnam War, similar American tribunals sorted among North Vietnamese soldiers, Vietcong rebels, and South Vietnamese civilians rounded up on the battlefield.
Taliban soldiers who are not connected to Al Qaeda in any way and were solely fighting Northern Alliance forces for control of Afghanistan are one group that might win POW designation in such a system. Harder cases might be high-ranking Taliban military officers who straddled the line between POW and unlawful combatant by being involved in - or even having prior knowledge - of the Sept. 11 attacks.
