New York Times
January 29 , 2002

Let Them Be P.O.W.'s


In 1993, an American helicopter pilot named Michael Durant was shot down in the "Black Hawk Down" incident in Somalia and seized by gunmen. The Somalis accused him of terrorism and initially threatened to put him on trial.

That conflict was a muddy one, not involving a declared war against a government. It was, in short, the kind of situation that the Bush administration seems to think is not covered by the Geneva Convention on treatment of prisoners of war.

Fortunately, the Somali gunmen were scrupulous about international law. They affirmed that Mr. Durant was a "prisoner of war" under the Geneva Convention and allowed a visit by the Red Cross.

The Bush administration owes it to the world — and to our own national interest — to rise to the level of Somali gunfighters and apply the Geneva Convention to the men at Guantánamo Bay, Cuba.

When I first wrestled with this issue, I thought I was going to wind up endorsing President Bush's view that the prisoners are, as he put it today, "killers" rather than P.O.W.'s. But as I read the convention and talked to legal experts, it became clear that the administration's arguments, while initially persuasive, have the disadvantage of being wrong.

To be more precise, they conflict with the letter and spirit of the convention. Moreover, as some in the Pentagon are quietly trying to point out, they set a terrible precedent for our own Special Operations soldiers.

"It is in the American interest to see the Geneva Convention applied," said Steven R. Ratner, a scholar of international law at the University of Texas. (This kind of thinking isn't confined to eggheads in the Boston- Washington corridor.) "Who knows when the day will come when our soldiers will be held by people in some kind of a murky conflict and we will want the protections of the Geneva Convention to apply?"

The contrary argument is that the Taliban and Al Qaeda prisoners do not meet the tests set by the Geneva Convention, such as wearing uniforms and obeying the laws of war.

That is simply wrong. Anyone who bothers to read the convention will see that those tests apply to "resistance movements" outside a country's armed forces. The tests do not apply to military units within a nation's armed forces — such as all Taliban soldiers and perhaps also Qaeda's "Arab Brigade" in the Taliban army. Under the Geneva Convention, all these fighters within the Afghan armed forces are P.O.W.'s whether or not they wear uniforms or obey the rules of war.

The administration is right, however, in saying that Arabs who were not part of the Taliban army, just members of Al Qaeda, are not entitled to P.O.W. status.

But the law is clear: We should presume that detainees are P.O.W.'s and then convene a tribunal to sift among them and exclude those who did not fight in the Taliban army. This corresponds to what we did in the gulf war, when the first Bush administration meticulously followed the Geneva Conventions.

Aside from the law, the Pentagon offers practical arguments against granting P.O.W. status.

One is that interrogations would be hampered. It is true that under the convention, P.O.W.'s need give only their name, rank and serial number. But we can still ask them anything we want to. In any case, detainees can't be forced to speak. The only practical way to facilitate interrogation would be to bring out thumbscrews.

Another fallacy is that we would have to return P.O.W.'s once the war is over. The convention makes clear that the P.O.W.'s can be tried for crimes outside of war — such as planning terrorist attacks.

In short, there's no practical downside to granting P.O.W. status. But there are huge advantages to recognizing the detainees as P.O.W.'s.

Such a step would help correct a public relations catastrophe. While it seems to me that our treatment of the prisoners has been humane (they're better off at Camp X-ray than they were in caves in Afghanistan), even our allies in Britain are appalled by our efforts to wiggle out of international law.

The second advantage is that it would help protect our own Special Operations troops who — like Michael Durant — end up in enemy hands accused of terrorism.

"If you seem to be casting doubt on the treatment of prisoners," said Adam Roberts, a scholar of international relations at Oxford University, "then where do we end up?"

Copyright © 2002, New York Times Company. All rights reserved.

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