News-Info-Alerts

To: ALL

From: Andi Wolos & Bob Necci

(POW-MIA InterNetwork)

Re: POWs or Not?

Date: January 21, 2002

"'POW' has rights; 'detainee' might not
By Richard Willing and Toni Locy, USA TODAY
America on Alert
 
WASHINGTON — Are they prisoners of war, or not?

Beyond the debate over whether the 144 Taliban and al-Qaeda detainees being held in open-air cages in Cuba are being treated humanely, that is the fundamental question that will determine what could happen to the detainees and what their rights are. It is a question that might not be answered by the time the detainees are moved to permanent cells being built at Guantanamo Bay Naval Station, which U.S. officials hope will curtail much of the criticism over how the captives are being treated.

For now, officials are classifying the captives as detainees rather than POWs. Under the Geneva Convention, POWs are entitled to be treated humanely and are allowed certain accommodations, such as regular exercise. The convention rules are less clear on the rights of detainees. U.S. officials say that those being held at Guantanamo are being treated as though the Geneva standards apply.

So why not call them POWs? Legal analysts say U.S. officials are reluctant to do so because it would give the detainees certain legal rights. Under the Geneva Convention, POWs are entitled to hear the charges against them and be tried in the same courts as the detaining power's soldiers would be. To some legal analysts, that means military courts-martial or possibly the military tribunal system U.S. officials are creating as a way to try foreign-born terrorists.

U.S. officials are reluctant to begin moving any of the detainees toward trial because they want more time to continue to question them, analysts say. And besides, officials say, the detainees don't meet much of the traditional definition of POWs: soldiers who wear uniforms, carried their weapons openly, have a recognized hierarchy and subscribe to the international norms of warfare.

Recognizing Taliban or al-Qaeda fighters as POWs could, in a legal sense, legitimize the Taliban and al-Qaeda as participants in an ongoing war against the United States. That, analysts say, could limit the United States' ability to take legal action against the detainees. For instance, it would be difficult to try POWs for firing on U.S. troops or for other typical war actions."