Prisoners of War?

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• GWEN IFILL:

  For more on how the detainees held in Cuba are being treated, we are joined by Michael Noone, a professor of law at Catholic University, and a former judge advocate in the Air Force; Ruth Wedgewood, professor of international law at Yale Law School and Johns Hopkins University; and Tom Malinowski, Washington advocacy director for Human Rights Watch.

  Professor Noone let's start with the definitions. Should these based on what you just heard the Secretary of Defense say, should the detainees be classified as prisoners of war?

• MICHAEL NOONE:

  It's too early to know. The Geneva Conventions provide and the United States has agreed that all prisoners should be quick screened by a three-person tribunal to determine whether or not they're qualified for prisoner of war status. That hasn't happened yet; it should very quickly. It's too early to know whether or not they'll qualify as prisoners of war.

• GWEN IFILL:

  How long do the prisoners have to be held before this tribunal sits?

• MICHAEL NOONE:

  The Army, U.S. Army regulation and the Geneva Convention say promptly and it's getting longer and longer. In order to qualify for prisoner of war, the prisoners have to carry arms openly; they have to respond to a superior in some hierarchical chain of command and they have to have some identifiable sign that shows that they're a member of an armed force.

  None of the criteria have been satisfied apparently but I'm concerned the U.S. Government has been so slow in screening these people and identifying them.

• GWEN IFILL:

  Professor Wedgewood what do you think? Are these POW's a reality?

• RUTH WEDGEWOOD:

  Well, the al-Qaida members – I think — will fail the qualifying requisites of being POW's because in part al-Qaida itself doesn't obey the laws of war and one of the prime requirements of the Geneva Convention is a kind of reciprocity, where if you want to be a lawful combatant, your side – not you necessarily yourself – but your side has to generally abide by the laws of war and al-Qaida membership and al-Qaida members have not done that.

• GWEN IFILL:

  So to say that they're unlawful combatants is correct technically?

• RUTH WEDGEWOOD:

  I believe it, yes.

• GWEN IFILL:

  How about that, Mr. Malinowski?

• TIM MALINOWSKI:

  It's probably correct — I agree with the other guests that al-Qaida members in particular because they didn't wear uniform insignia, they didn't abide by the laws of war probably would not be deemed to be entitled to prisoner of war status.

  The Taliban prisoners — and there are some Taliban prisoners among the detainees in Guantanamo — might be deemed to be entitled to POW status because they were fighting for the armed forces of one of the parties to the conflict — the government of Afghanistan. But it's unclear and as was mentioned, the key thing is to entitle these detainees – all of them — to a hearing to determine their status. That's a requirement whenever there's a doubt.

• GWEN IFILL:

  Did you find anything troubling in those photographs?

• TIM MALINOWSKI:

  Well we found some troubling aspects to the conditions in Guantanamo — not so much the photographs but the conditions of the detention. As you know they're being housed right now in these — they've been called metal cages — that are open on the sides to the elements.

  The good news is that Secretary Rumsfeld has essentially acknowledged that this is inadequate; he said that these are temporary facilities; they will be replaced by permanent facilities, and that's very important but that certainly didn't contribute to a good reaction around the world to the detention.

• GWEN IFILL:

  Professor Noone we keep hearing references to the Geneva Convention, protections offered by the Geneva Convention. What are those protections and how would they apply in this case?

• MICHAEL NOONE:

  Well, the protections extend over 100 articles and would fill a book of 750 pages, but essentially they guarantee that soldiers of an army who were captured during a belligerency should be treated humanely and there are elaborate constructs to describe –

• GWEN IFILL:

  For example?

• MICHAEL NOONE:

  For example, the conventions provide that soldiers who are being detained should be treated with the same sort of health care, the same sort of quarters, the same sort of privileges that the army who's detaining them should be given.

  For example, they should be given mail privileges, they should be given food, a very elaborate system developed in order to ensure that they're receiving that sort of humanitarian protection.

  I think this is one of the reasons the government is reluctant to call them POW's because among the protections it involves provisions that if a soldier has committed a crime before he's made a prisoner, he is to be tried by the same sort of tribunal that would try the detaining powers. That means court-martial.

• GWEN IFILL:

  So do you imagine that if these were treated as POW's under the laws, Professor Wedgewood, of the Geneva Convention, that there would be immediately triggered a series of legal procedures that would have to happen immediately?

• RUTH WEDGEWOOD:

  Well, let me just mention a couple of things that are in the Geneva Convention that are very awkward and one reason why the status of POW would be very detrimental to good camp governance. Under the POW Convention you can get a mess kit; you can keep your gas mask.

  The POW Convention contemplates that the people that are going to be governed by it have really surrendered; they're not still fighting. Al-Qaida is still up in arms, had the revolt at Mazar-e Sharif, had the revolt in Pakistan – an al-Qaida prisoner also stabbed a guard in the eye and the brain in the Metropolitan Correctional Center in New York City.

  So these folks haven't surrendered. In that sense the almost Victorian, Faustian, important provisions of Geneva three are hard to apply to a group that is still avowed as terrorist. It doesn't make that much difference frankly on how they're tried — I disagree with my colleague.

  I think they can be tried in front of military commissions even if they were POW's. It makes difference on the POW the choice of council. Where it does make a difference is governance of the camp and if you concede they're lawful combatants, you're conceding they had a right to strike military targets like the Pentagon.

• GWEN IFILL:

  Does it matter they're in Cuba – on foreign soil — not on U.S. soil?

• RUTH WEDGEWOOD:

  Well, it's old American leasehold from 1903 designed originally as a fueling station but by custom and use we've used it for many other purposes since then.

• GWEN IFILL:

  But not U.S. soil; is that significant?

• MICHAEL NOONE:

  It has legal consequences – serious legal consequences — serious legal consequences for them, positive legal consequences for the U.S. Government. Because in a 1950 Supreme Court decision in summary seems to hold that habeas corpus is available to U.S. citizens held by U.S. authority anywhere in the world or to aliens held by U.S. authorities in the United States. These aliens are neither U.S. citizens nor are they being held in the United States; that at least I think is the government's position.

• GWEN IFILL:

  Mr. Malinowski as you listen to what you have heard the Pentagon say about the how these prisoners are being treated, they're getting three meals a day, they at least have a roof if not walls, they're getting access to prayer mats and other kinds of things that allow them to practice their religion, do you remain as concerned as many other international organizations are about whether these things are actually being followed through on?

• TIM MALINOWSKI:

  Well, I think there is a solution to the problem that the administration is facing overseas, in particular in Europe. It's a very simple one and would be very much in keeping I think with their needs.

  The Red Cross as you know and we saw, is in Guantanamo right now; it's going be making a report to the administration, to the Defense Department with recommendations. The Defense Department should release that report so that all the world knows what all the problems and deficiencies are and what they're doing right. And it should commit to abide by those recommendations.

  Certainly if American prisoners were being held overseas and the Red Cross was visiting their facilities, we would expect the Red Cross recommendations to be met in full, and I don't think we're going to have any problem meeting those reasonable recommendations. No one would have any legitimate cause to criticize or complain about the conditions down there if they took that step.

• GWEN IFILL:

  Do you assume these detainees, prisoners, whatever term we choose to use, are being interrogated without benefit of access to legal counsel or any of the other kinds of protections they would otherwise have right now and does that bother you in any way?

• TIM MALINOWSKI:

  Well, it would certainly bother me if they're being interrogated without access to counsel as preparation for trying them and prosecuting them. We think they should be tried and prosecuted if they committed crimes and most of them may have.

  But if that's the purpose of the interrogations, they have a right to counsel. If the purpose is to gather intelligence for the war in Afghanistan or to prevent future terrorist attacks, then that right doesn't exist in the same way.

• GWEN IFILL:

  You raise an interesting point, Professor Wedgewood, you can respond to this, which is what is the purpose for having them there, what is the purpose; is it interrogation for intelligence sake do you think or is it interrogation to prosecute them, is that what is down the line?

• RUTH WEDGEWOOD:

  I think there's a much more fundamental reason actually beyond either of those, although both of those are possibilities. It's simply to keep them out of combat. It's an age old prerogative of an adversary in war to detain members of the opposite side to keep them from returning to the battle.

  And al-Qaida folks will come back in and rejoin the fray if you don't incapacitate them by putting them in sub- humane condition I. think the Pentagon wants to do the right thing. It's been caught in difficult circumstances with very little time to prepare.

  I don't agree that the Red Cross would necessarily like a practice of having its recommendations made public and I have to also just note that there is a bit of difference in the international community.

  There is a protocol to the old 1949 Geneva Conventions passed in 1977 by some countries but not by the U.S., not by Afghanistan which would really erase the distinction between civilians and soldiers and bless guerrilla warfare and the U.S. frankly will not agree to that and I think should not.

• GWEN IFILL:

  Professor Noone, a minute ago Mr. Tom Malinowski mentioned that some of the prisoners maybe al-Qaida and some of them might also be Taliban –

• MICHAEL NOONE:

  That's right.

• GWEN IFILL:

  — which means they're theoretically members of a standing army of a government — that used to be… What is the distinction that you see here?

• MICHAEL NOONE:

  Well there is one distinction that I think Professor Wedgewood was about to emphasize. The fact that the government of Afghanistan had never been recognized by the international community is irrelevant to the Geneva Conventions.

  The Geneva Conventions still extend their protections to the armies if you will of unrecognized governments. So that distinction isn't important. The fundamental distinction is are these surrendered soldiers or some other group that formed itself like soldiers who can claim the protections of the Geneva Conventions. That's a lawyer's question.

  The fundamental question is are these people being treated humanely and then the question is what criteria should we use to decide whether or not they're being treated humanely and I think properly the humanitarian community looks to the Geneva Conventions as describing in general terms what internationally is accepted as humanitarian treatment.

• GWEN IFILL:

  Professor Wedgewood I want you to also jump in on that but I also want to ask you whether there is any distinction or any concern in the American legal community about how Americans would be treated in similar situations and whether a precedent is being set.

• RUTH WEDGEWOOD:

  I don't think a precedent is being set in any way adverse to the U.S. because really the fundamental disqualifying characteristic of al-Qaida and arguably of the Taliban insofar as they were helping al-Qaida carry out its operations is the failure themselves to abide by the law of war.

  And much of it is a tempest in a teapot – about musical instruments or whether chain link fence is better than Plexiglas but the fundamental requirement is that you be part of a side that itself has committed itself to fair fighting and where I do disagree on a technical matter is it's not a case where it's simply one country where the U.S. failed to recognize the Taliban as a government, the United Nations said the Taliban wasn't the government.

  Rabbani's government was the seated government of the Afghanistan in the general assembly. This is a very different case from what Geneva anticipates.

• GWEN IFILL:

  In human rights terms is there a precedent that's being set here?

• TIM MALINOWSKI:

  I think every everything the United States does sets a precedent for better, for worse, particularly at a time like this when the whole world is watching every single step the Defense Department is taking the world is watching, in Guantanamo and the conduct of the war in general.

  Some of this is reality and some of it is perception but the perception is also important. It's not just our allies. I'm concerned about the fact that not too far away from Guantanamo there is a gentleman by the name of Fidel Castro probably watching in very, very intently.

  There are people in China and Sudan — in dictatorships all over the world and I don't want dictators gloating when they see these scenes on TV – I don't want them saying, well I guess the Americans aren't going to be complaining to us anymore about the way we treat our prisoners. A lot of is that perception how they're being treated but it's very very important for the United States and Defense Department not only to play by the rules but to be seen by playing by the rules.

• GWEN IFILL:

  That's it. We're all out of time. Thank you for joining us.