Powell wants POW status for Afghanistan detainees

Policy reversal sought in break with Cabinet

Bush not persuaded

January 27, 2002|By NEW YORK TIMES NEWS SERVICE

WASHINGTON - Secretary of State Colin L. Powell, breaking with other Cabinet members, has asked President Bush to reverse himself and declare that captives being held in Afghanistan and at Guantanamo Bay, Cuba, are entitled to protection by the Geneva Convention on prisoners of war, administration officials said yesterday.

In an unusual challenge to a presidential decision, Powell and his lawyers at the State Department had urged Bush to affirm that the international law of war governs the United States' treatment of all captives of the Taliban military and al-Qaida terrorist network.

They should be considered prisoners of war, he argued, until each is brought before a military board for a hearing.

But the White House counsel, Alberto Gonzales, has advised that "the arguments for reconsideration and reversal are unpersuasive," according to a memorandum he wrote Friday describing the split. The office of general counsel at the Justice Department also disputes the State Department's view, Gonzales said. Gonzales' memorandum was first reported yesterday by The Washington Times.

White House and State Department officials confirmed the dispute.

Reflecting the urgency of the matter, the president's national security adviser, Condoleezza Rice, asked members of Bush's war Cabinet to submit their views to her yesterday morning for discussion, according to her cover letter to Gonzales' memorandum, also quoted in The Washington Times. The administration hopes to resolve the matter by tomorrow, Rice's letter said.

Bush was heading back to Washington yesterday, breaking away from a planned weekend at Camp David.

The United States has faced international criticism over its handling of the prisoners, although the Bush administration has insisted that they are being treated fairly. A congressional delegation visited the camp Friday, and its members said the treatment of prisoners was humane. Defense Secretary Donald H. Rumsfeld, who has vigorously defended the administration's approach, is to take a group of reporters, including several from foreign news organizations, to see the camp at Guantanamo today.

From Powell's point of view, the change in policy would help ease relations with allied governments and partners in the anti-terrorism coalition, including some states whose citizens are being held at Guantanamo.

A senior State Department official said Powell, a former chairman of the Joint Chiefs of Staff, has no fundamental objection to the treatment of the prisoners. But as the Cabinet officer responsible for the United States' compliance with international treaties, Powell wants a formal process to be followed in determining their status as the Geneva Convention requires.

Powell was said to believe that in the end, most would not qualify as POWs.

If the detainees are deemed prisoners of war, they would be eligible for several protections under international law. Among them: Prisoners of war are not required to cooperate with interrogators, are allowed to elect their own leaders in prison camps and are to be allowed to return home after the cessation of hostilities unless convicted of war crimes or other offenses.

In his memorandum, Gonzales said Powell contends that the Geneva Convention "does apply to both al-Qaida and the Taliban" and added, "I understand, however, that he would agree that al-Qaida and Taliban fighters could be determined not to be prisoners of war [POWs] but only on a case-by-case basis following individual hearings before a military board."

The president and his administration, particularly Rumsfeld and Attorney General John Ashcroft, have insisted that the United States is treating the prisoners humanely, in ways generally consistent with the handling of prisoners of war. But they have refused to confer that formal status to the captives because it could interfere with eventual trials of some of them before military tribunals. Some allies are strongly opposed to military tribunals because they could result in their citizens being given the death penalty, which most other countries oppose.

As of Friday, there were 302 enemy captives in Afghanistan and 158 at the detention center at Guantanamo Bay. The Bush administration has said that it considers them to be "unlawful combatants" not covered by the Geneva Convention because they were terrorists beyond the control of any state or at best militants in service to an illegitimate government. Fighting without uniforms and in violation of the laws of war, they could not claim the protections of the Geneva Convention, in this view.

The detainees at Guantanamo come from 25 countries. At least three are from Britain, and one is Australian.

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