Prisoner’s Status

MARGARET WARNER:

When the first Taliban and al-Qaida detainees arrived at Guantanamo Bay, Cuba, last month, the Administration decided they would not enjoy the rights of prisoners of war under the Geneva Conventions. But late last month, Secretary of State Colin Powell asked the President to reconsider. Powell argued the U.S. could refrain from declaring them POWS, but still accord them the protection of the Geneva Conventions. Today, the White House split the difference, declaring that the Geneva Conventions did apply to the Taliban fighters, but not to the al-Qaida prisoners.

To sort through what this means, we turn to Eugene Fidell, President of the National Institute of Military Justice.

MARGARET WARNER:

All right, let's take this confusing thing step by step. First of all, what's the legal basis or rationale for distinguishing in terms of being covered by the Geneva Convention between the Taliban and the al-Qaida prisoners?

EUGENE FIDELL:

I think that the Administration's basis for distinguishing them is a function of the Taliban being associated with the Afghan state being, I guess, as near to being an Afghan army as there was at the time, as opposed to al-Qaida being more of an international conspiracy or international organization not associated with any particular state.

MARGARET WARNER:

And so, in other words, because Afghanistan, at least as a country, when under a different government had signed this Geneva Convention, they were considered a party, or the White House decided they were a party to it?

EUGENE FIDELL:

That's exactly right, that Afghanistan is a party as a country, it is a party to the Geneva Conventions. Obviously, the al-Qaida is not a nation state; doesn't get to sign or ratify treaties.

MARGARET WARNER:

All right. So then you take the Taliban prisoners, they say they're covered by the Geneva Conventions, but they're not prisoners of war. What's the basis for that?

EUGENE FIDELL:

Okay. Here you have to walk through the requirements set down in the third Geneva Convention of 1949, for deciding who qualifies as a prisoner of war. And basically, it's a four-part test for that question. Number one, you have to have a leader who is responsible for the troops under him. You have to have people who carry weapons openly. You have to have a distinctive insignia or uniform visible at a distance. And you have to yourself comply with the rules of war. So that's the four-part test, and the government's judgment was that that test was met when it came to Taliban… Excuse me, it was applied to the Taliban and the Taliban failed the test. It was not applied to al-Qaida.

MARGARET WARNER:

Because they didn't even get to that first bar?

EUGENE FIDELL:

That's exactly right.

MARGARET WARNER:

Now, when this whole thing kind of erupted in the press — Colin Powell suggested that the President change his position, the speculation was that if they were – the Taliban or any of the prisoners were determined to be covered by the Geneva Convention, that they – each one had to have an individual hearing to determine whether he would be afforded or accorded POW status, but that's not the case?

EUGENE FIDELL:

That's not the way it's played out, and the difference, of course, is the difference between retail and wholesale. What happened in the case of Taliban is the Administration has made a genetic or sort of class-action judgment that Taliban and its adherents are not at all covered by the Geneva Convention… Or excuse me — that they're not qualified as prisoners of war. The background of that part of the Geneva Convention, that's Article IV, is set forth in the commentary, which suggests as illustrations, what if you have a person who's a deserter, what if you have a person who's lost their identity card? There you might have a doubt as to the individual. This case doesn't have to do with individualized doubts; it has to do with an across-the-board determination. That's the way it's played out, and it's defensible in terms of that legislative history.

MARGARET WARNER:

All right, now, let's talk about the practical effect. If you're a Taliban prisoner and you somehow get word today that the President's decided you're covered by the Geneva Convention, are you going to be treated any differently today than you were yesterday?

EUGENE FIDELL:

Tomorrow will be the same as today in Guantanamo Bay. There won't be any practical difference, discernible by the detainees tomorrow morning.

MARGARET WARNER:

Neither in the way they are treated, nor in the way they're interrogated?

EGUENE FIDELL:

That is correct.

MARGARET WARNER:

Whereas, if they had been prisoners of war, then it would have made a big difference, or some difference?

EUGENE FIDELL:

It would have made some difference, although even there, you know, it may be a difference around the edges. It would make a difference, for example, around amenities; you don't have a right to musical instruments if you're not a POW, you don't have a right to canteen privileges or get a minor advance on your military pay, those kinds of things. It makes, to my thinking, very little difference in terms of how the interrogations would be conducted, for example.

MARGARET WARNER:

So what was this we heard, though, about if you're a –designated a POW, you only have to give your name, rank and serial number?

EUGENE FIDELL:

And your date of birth.

MARGARET WARNER:

And your date of birth.

EUGENE FIDELL:

The answer is: That is true, but whether you're a POW or not, it doesn't prevent the detaining power, in this case the United States, from asking other questions. It's simply that a POW doesn't have a legal duty to go beyond the four core questions. And whether you're a POW or not a POW, the detaining power still can't torture you into answering, can't coerce you into answering, can't starve you into answering.

MARGARET WARNER:

The White House, when they put out this announcement on paper, also took pains to say they're actually giving them many of the other amenities that you would give a POW, things like the right to worship, the right to see the Red Cross when the Red Cross comes in. So they're though they're not giving them POW status, they are giving them certain– I don't know if you'd call them protections, but amenities.

EUGENE FIDELL:

They are protections. In an earlier age before we had these conventions, I mean the sky was the limit for how you dealt with prisoners. What's… But our value system has evolved so that there's a certain floor of decency and humanity that extends to people even if they're not POW'S who have fallen into your hands.

MARGARET WARNER:

Finally, does the designation of some of these prisoners as at least covered by the Geneva Conventions, does it have any impact on their final disposition, on whether they're tried or sent to their home country?

EUGENE FIDELL:

Well, it potentially has an effect on when they get sent home. A POW is supposed to be repatriated, that is sent back to their home, at the cessation of hostilities or within a reasonable period thereafter. That is not going to be the case given the position the government has taken here. In terms of the other legal implications…

MARGARET WARNER:

Let me just interrupt..

EUGENE FIDELL:

Sure.

MARGARET WARNER:

Because otherwise you could say, "We are really no longer at war with or in Afghanistan, since there's a new government there. So you're saying if they were POW's, there might be some questions about whether they could even be held?

EUGENE FIDELL:

There would be increased pressure to get them home and stop the process, ring down the curtain on the interrogations, for example. That's a very, very considerable factor in terms of U.S. Government thinking and strategy here.

MARGARET WARNER:

So what are the other options?

EUGENE FIDELL:

The options are to detain them for a reasonable period of time. You can't lock them up and throw away the key. I mean you do have to bring things to an orderly halt at a certain point. But the options are to conduct your investigation in the fullness of time and bring them before whatever tribunal you ultimately settle upon. The implications in terms of what kind of tribunal these people, or some of them, will be brought before, in terms of today's announcement from the Administration, remains somewhat unclear.

MARGARET WARNER:

All right, Eugene Fidell, thanks so much.

EUGENE FIDELL:

It's my pleasure, Margaret.