January 30, 2002
Guantanamo and Geneva: The Missing Questions
It is hardly unusual for all sides of a given controversy to miss the central point; it's what most of us do most of the time. But the skirting of salient issues surrounding the prisoners being held at the American Guantanamo Bay base in Cuba seems more egregious than usual.
I doubt if the prisoners at Gitmo are being treated much more inhumanely than people thrown into drunk tanks in county jails around the United States and around the world. The key question is their status. Are they "prisoners of war" or are they "detainees" or "unlawful combatants" (a category U.S. officials seem to have invented in the last few weeks)?
The reluctance of the United States to deem them "prisoners of war" has something to do with the fact that this country is so reluctant to be honest about its warfare and get a declaration of war from Congress before sending bombers. But it mainly has to do with the fact that our leaders want to interrogate these prisoners, and if they're called "prisoners of war," that is forbidden by the 1949 Geneva Convention.
Here's the main thing about official prisoners of war. A prisoner of war, as members of the US military are briefed when going into any kind of action where imprisonment is a possibility, is authorized under the Geneva Convention to respond to interrogation with name, rank and serial number and nothing more. Signatories to the convention promise they won't try to extract further information from POWs through other means, ranging from promises, to intimidation, to torture. Furthermore, prisoners are to be released when the war is over, without being put on trial unless there is evidence of personally committing war crimes.
This doesn't mean those holding the prisoners can't ask further questions if they think some prisoner might be just busting to tell more. But they're not allowed to use torture to get more questions answered and they aren't allowed to impose punishment or discipline for refusal to go beyond the minimum Geneva Convention requirements.
The theory is that there is or should be some modicum of honor in war. That's a concept that might reflect well on those who make the attempt, but it still seems a little strange to me in the context of an activity whose main objective is to kill as many as possible of the other guys. The carrot in the deal is that if you go to war with a signatory, an enemy who captures some of your guys is supposed to treat them humanely also, and its functionaries can be condemned and maybe even tried as war criminals if they don't.
But whether or not this is a "new kind of war" not contemplated by those who were drafting treaties in 1949 or not and so far it doesn't seem to be, except that it hasn't been declared and it involves new technologies the United States government signed it. If it wants to maintain anything resembling a semblance of the moral high ground (which one might think was important to people who repeatedly say their objective is to "eradicate evil") it would be well advised to go the extra mile when it comes to treaty provisions rather than trying to shave its putative obligations.
Instead we have the Bush administration outstripping "depends on what the definition of 'is' is" Clinton in semantic legerdemain. Despite the fact that administration spokesmen have repeatedly called the present conflict a "war" and have used the rhetoric of war to bolster support for the president (and for government as an institution), they want to treat the prisoners at Guantanamo as something other than prisoners of war.
What is little known is that the Geneva Convention actually anticipated this kind of uncertainty or ambiguity about status of prisoners. So the authors put it right there in Article 5: "Should any doubt arise as to whether persons ... belong to any of the categories in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."
Here's how I read all this: Until you have determined through proper procedures whether a given person is a bona fide POW or something else, you're supposed to treat them as a full-fledged POW under "the protection of the present Convention."
Once a "competent tribunal" not the president and a few close advisers but something more formal in which the detainee has certain rights and some modicum of due process has determined that they are something other than POWs you can ask them more questions more persistently, and perhaps even threaten them with longer detention if they don't cooperate. Until such a determination is made, however, they are to be treated just like a POW under the convention.
As it happens, there are American laws on the subject. In 1997 the Pentagon promulgated a broad set of military regulations concerning the treatment of prisoners and other detainees. You would think a country devoted to the rule of law would have applied its own law instantly.
These regulations say, as a Feb. 13 New York Times story put it, that "all captives shall be treated humanely under the Geneva Protocols until their status is determined by a screening tribunal of three commissioned officers. They require that a written record be made of the proceedings, that the prisoner be advised of his rights, be allowed to attend the sessions, can have an interpreter, can call witnesses and that his status shall be determined by a majority vote based on a preponderance of evidence." (That's a relatively lenient legal standard, much less than "beyond a reasonable doubt," but a lot stricter than "because I feel like it" or "because it suits my political agenda.")
The 1997 regulations don't mention a right to a lawyer during these screening proceedings to determine proper status. But they do say that those determined by these tribunals not to be entitled to POW status "may not be executed, imprisoned, or otherwise penalized without further proceedings to determine what acts they have committed and what penalty should be imposed."
Does this mean that those determined not to be a POW would have to be released unless they are determined to be guilty of something by a judicial proceeding? I haven't read the full regulations and wouldn't venture an opinion without consulting several lawyers.
What is perfectly clear (it seems to me) is that under both the Geneva Convention and the laws of the United States, neither President Bush nor Secretary of Defense Donald Rumsfeld has any legal authority to make a blanket determination that all those at Guantanamo are "illegal combatants," rather than "prisoners of war."
Each of those detained has a right under the Geneva Convention to have his status determined on a case-by-case individual basis by a "competent tribunal." US laws and military regulations spell out in further detail just what is entailed in the screening process, including the right to be present, have an interpreter and call witnesses while his status is being determined.
It might be a bit of a stretch to argue that Bush and Rumsfeld, by declaring unilaterally and without any semblance of individual attention that all those at Guantanamo fall into one category or another, are breaking US law. But it isn't all that much of a stretch. At the very least they are ignoring US law.
Unless screening tribunals have been set up without informing anybody in the media, they are not authorized by law to characterize prisoners in this way. Categorizing is not their function; their job is to accept the determination of status decided by a "competent tribunal" and proceed accordingly. As nearly as I can tell they are not even allowed to try to influence the proceedings.
The administration wants to evade all this Geneva Convention stuff and sell the notion that it's fine and dandy to treat the prisoners "in the spirit" of the convention. But the convention doesn't permit that. It doesn't require that its provision apply only in state-vs.-state conflicts or formally declared wars; several types of conflicts are mentioned. And it very specifically says that if there's doubt about the status of somebody detained that person is to be offered all the protections of the convention until the status is determined by a formal and competent procedure.
Quite frankly, then, all this talk about whether the Geneva Convention applies to these particular prisoners is a bunch of evasive balderdash. There might be doubt about whether those in Guantanamo are part of a regular military force or a bunch or illegal irregulars. But they were taken by American regular military forces, and until their status is determined properly, the US is obligated to abide by the Geneva Protocols in its treatment of them.
I can understand why US officials would want to evade the clear implications of the treaty they have signed. They want to question these people and garner as much information from them as possible. I can understand that desire. I can even cut a bit of slack for what seems likely that the US military made its decisions about moving and housing prisoners without understanding the implications of the Geneva Convention.
But there's been plenty of time to figure it out. So as an American I'm more than a little ashamed that my government would so blatantly cut corners and try to obfuscate the issue in such a transparent manner.
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