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What To Do With Our "Detainees"?

by Tom Malinowski

Thirty years ago, American prisoners of war were being brutalized in North Vietnam, and an outraged American government sought to shame their captors into respecting the Geneva Conventions. The treatment of Americans never came close to being humane. But, as Sen. John McCain (R., Ariz.) has said of his POW ordeal: “I’m certain we would have been a lot worse off if there had not been the Geneva Conventions around.”

That’s an important story to remember as Americans debate whether the Geneva Conventions should be upheld in the treatment of prisoners from Afghanistan. It reminds us that the issue is not about whether we sympathize with accused terrorists who probably don’t want our sympathy anyway. It is about protecting a set of rules that protect all people, including American servicemen and women taken captive in war. It is about preserving America’s right to complain when Americans are mistreated overseas.

To his credit, Secretary of Defense Donald Rumsfeld acknowledged last week that the conventions do apply to all of the prisoners at Guantanamo Bay, reversing earlier statements to the contrary.

What do the conventions tell us about how these prisoners should be treated? The al-Qaeda detainees probably are not entitled to formal POW status because they did not fight for a regular army, wear insignia that identified them as soldiers, or respect the rules of war. If so, they could be tried for war crimes or terrorist acts in the President’s proposed military commissions, as long as the trials respect due process.

But the Taliban detainees probably should be called POWs. They fought for the regular armed forces of Afghanistan. Rumsfeld has suggested that this rule may not apply to the Taliban because they weren’t internationally recognized as the government of Afghanistan. But the Geneva Conventions don’t make that distinction. Nor has the United States: In the Korean War, for example, neither the United States nor the United Nations recognized the communist government of China, but U.S. forces treated Chinese prisoners as POWs.

If any of the detainees are POWs, the Geneva Conventions oblige them to give only their name, rank and serial number. But that doesn’t mean the military can’t interrogate them about other things, including possible future attacks. And the United States can still prosecute them for war crimes in a military court martial.

Who determines whether they are POWs or “unlawful combatants,” as the Defense Department has called them? Rumsfeld cannot make that call himself. When there is any doubt about a prisoner’s status, the conventions require that they be considered POWs until a “competent tribunal” decides otherwise, and so do U.S. military regulations. The Defense Department should respect its own rules by convening such tribunals without delay.

Whatever the prisoners’ legal status, the Geneva Conventions entitle them to be treated humanely. In many respects, the military has taken this responsibility very seriously, while taking understandable steps to protect itself from dangerous prisoners. The main problem has been the confinement of prisoners in metal cages open to the elements – conditions Americans would surely condemn if American prisoners were subjected to them overseas.

For all the debate on this issue, the Defense Department has essentially acknowledged the conditions are inadequate by pointing out that the shelters are temporary, and promising to build permanent facilities. That effort needs to be accelerated.

There is an easy way for the administration to settle the debate. The Red Cross is now inspecting the facilities in Guantanamo and will be making its recommendations privately to the Defense Department. Rumsfeld should release those recommendations, and he should pledge now to follow them.

If the administration does that, it will clear up much of the controversy and confusion. It will be showing that nations can bring terrorists to justice without sinking to their level. And it will ensure that the next time American servicemen and women are imprisoned overseas, the Geneva Conventions will still be there to protect them.

Tom Malinowski is Washington advocacy director of Human Rights Watch

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