New York Times Editorial
January 21, 2002

The Prisoners at Guantánamo

The handling and prosecution of Taliban and Al Qaeda prisoners at the American naval base in Guantánamo, Cuba, cannot be left to the whim of the Pentagon. There have been disturbing reports about the conditions under which some of these detainees are being held. And a federal court will hear legal challenges to their treatment today. It is in America's interest to afford all the prisoners humane conditions of detention and basic standards of due process. The United States should stand for the rule of law, even when it comes to prosecuting violent enemies committed to carrying out terrorist attacks.

It is hard to tell how many Guantánamo prisoners might have a legitimate claim to prisoner of war status, since the Pentagon has not furnished much information about whom it is holding and where they come from. So far some 150 prisoners have been brought to Guantánamo. Hundreds more may eventually be held there.

Defense Secretary Donald Rumsfeld seems already convinced that all those detained are "unlawful combatants" and therefore not legally entitled to Geneva Convention protections for prisoners of war. No prosecutions should begin until that issue has been resolved in accordance with the principles of American and international law.

The Geneva Convention confers prisoner of war status on those captured as part of a country's armed forces, whether or not their government was diplomatically recognized by the country holding them. Members of irregular forces can also qualify, provided they were wearing some kind of identifying insignia, operating under a clear chain of command in a unit that abided by internationally recognized rules of war.

This standard could apply to soldiers fighting for the Taliban. It might even be invoked by members of Al Qaeda military brigades fighting alongside Taliban forces, although they would have a hard time proving their organization's respect for the rules of war. Prisoner of war status should not be granted to Al Qaeda's leaders or those training for terrorism at its Afghan camps.

Under current Pentagon regulations, captives claiming to be prisoners of war are entitled to present their claims at a special hearing presided over by three American military officers, with no appeals permitted. A sounder approach would apply the standards of American military law, including the possibility of appeal.

Far more is at stake than legal technicalities. Any detainees who qualify for prisoner of war status cannot be brought before the military commissions proposed by the Bush administration, but must be tried under regular court-martial procedure or in American civilian courts. By holding the Guantánamo prisoners at a military base outside the United States, the administration has complicated the issue of judicial intervention. That does not excuse the Pentagon from following basic American standards of fairness and applicable international law.

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

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