Status of detainees in Cuba remains in question

Officials debate whether Guantanamo captives should be called POWs

January 30, 2002|By Mark Matthews | Mark Matthews,SUN NATIONAL STAFF

WASHINGTON - Despite President Bush's assertion that the al-Qaida and Taliban detainees at Guantanamo are not prisoners of war, this may not be the final word on the matter.

Bush said Monday he would "listen to all the legalisms" on the captives' status "and announce my decision when I make it."

One of the key questions he faces is whether the detainees fall under the protection of the Third Geneva Convention of 1949, the internationally recognized rules governing the treatment of captives in armed conflicts.

Article 5 of the convention requires that a tribunal decide on a case-by-case basis whether detainees should be classified as prisoners of war or, as Bush called them, "illegal combatants."

The question of letting a tribunal decide the captives' status is one of several problems administration officials are grappling with in the debate on whether to apply the formal rules of war to the Guantanamo detainees.

Others are the possible negative reaction from other countries if the United States were to say that the Geneva Convention did not apply and a fear that international rules of war could be weakened.

"Our allies would feel that if we didn't apply the Third Geneva Convention, why are they there" in Afghanistan? said Alfred Rubin, a former Pentagon lawyer who is a professor of international law at Tufts University.

"If it doesn't apply, are the Russians free to behave brutally in Chechnya, the British in Northern Ireland, the Israelis?"

Overseas reaction feared

The reaction overseas is believed to be a key reason why Secretary of State Colin L. Powell urged Bush to reconsider his decision not to apply the convention.

Powell shares the view of others in the administration that the detainees should not be considered prisoners of war, but is apparently concerned about how to justify that determination.

The question, as summed up by State Department spokesman Richard Boucher, is, "Why are they not prisoners of war? Is it because the convention doesn't apply to this situation, or the convention does apply but, under the convention, these people don't qualify for that status?"

At the Pentagon, there is concern about how American soldiers in the future might be treated if they were captured. Some officials there argue that the United States should "keep the moral high ground across the board," a defense official said.

Adhering to the convention would provide "a larger moral justification for ensuring that our folks are treated in accordance with the Geneva Convention," the official said.

Some experts believe applying the convention would have little practical result. Although the administration insists the detainees at Guantanamo are being treated humanely, "consistent with the principles" of the Geneva conventions, they don't get some privileges that would be accorded to formal prisoners of war.

"There are some things like open canteens and the right to buy musical instruments and acquire a pound of tobacco a month, or whatever it is, that they won't get," Boucher said yesterday in a C-SPAN interview.

In the administration, there is wide agreement that the al-Qaida detainees can't be called prisoners of war, since they were not part of any nation's army and belonged to a terrorist organization that specialized in attacks on innocent civilians, not a conflict between opposing armed forces.

But the Taliban captives fall into a grayer area. While senior Taliban officials could be equated with al-Qaida terrorists because of their close links, the defense official said low-ranking inductees might be considered members of an army, since the Taliban were the de facto authority in Afghanistan until ousted by rebel forces and the United States.

POWs cannot be tried for engaging in hostilities, only for war crimes, which include deliberate attacks on innocent civilians.

Interrogation concerns

The two main administration aims in holding the captives are to prevent them from carrying out new acts of terror and to extract information from them about the al-Qaida organization and any operations it might have planned.

Concerns have been raised that as prisoners of war, the captives would only be required to supply their name, rank and serial number, or some equivalent military identification, and that this could hamper interrogations.

But experts argue that this requirement doesn't prevent the prisoners from being questioned. Promises of lenient treatment and other inducements could be used to encourage cooperation.

The detainees' fate has drawn widespread international reaction. A top Saudi official said 100 countrymen are being held by the United States, and Saudi Arabia wants them returned. Britain's foreign secretary, Jack Straw, said recently that British nationals among the detainees should be returned to Britain.

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