President Bush's decision launch a "war against terrorism"
in response to September 11 now hoisted the United States on its
own petard? That would seem to be the case as international organizations
and even officials of allied countries such as Great Britain have
intensified criticism of the United States concerning its treatment
of captured al Qaeda and Taliban fighters and called upon the U.S.
government to designate them "prisoners of war" (POWs),
rather than as "detainees."
that the detainees' living conditions at Camp X-Ray on Guantanamo
Bay are inhumane and that they are being mistreated are absurd.
But criticism of the U.S. treatment of the detainees is related
to the far more important issue of the status of those being held
by the United States. The U.S. maintains that they are "unlawful"
or "unprivileged" combatants who "do not have any
rights under the Geneva Conventions," that series of agreements
that governs the status of captives in war. The U.S. position is
that while we are, for the most part, adhering to the Geneva Conventions,
the status of the detainees does not obligate us to do so.
has been attacked by individuals and organizations, including Mary
Robinson, United Nations High Commissioner for Human Rights, Amnesty
International, and the International Red Cross. Such critics insist
that the detainees are legally POWs, a designation that would trigger
certain rights and protections under the Geneva Conventions.
a POW is not required to respond to interrogation beyond providing
his name, rank, and serial or service number. He must be repatriated
at the end of hostilities, unless he is charged with war crimes,
in which case he must tried by the same court and under the same
rules of evidence and procedure as members of the detaining power's
armed forces would be. In other words, a POW would have to be tried
by courts martial, not by military tribunals of the sort that have
been authorized by the president.
Bush has invoked a "war against terrorism," why shouldn't
the captured fighters be accorded POW status? Many of the reasons
advanced to deny them that status simply do not hold water. The
claim that there was no congressional declaration of war is true,
but it is arguable that congressional passage of the antiterrorism
bill constituted a contingent declaration of war. In any event,
as Justice Grier wrote in the Prize Cases decision (1863),
a war is defined "by its accidents the number, power
and organization of the persons who originate and carry it out."
No one with any sense can deny that the United States was at war
as of 8:48 AM on Tuesday, September 11, 2001. The contention that
the fighters did not wear uniforms is also true in the formal sense
of Western armies, but they wore pretty much the same garb as our
Afghan allies did.
The real reason
the detainees are not entitled to POW status is to be found in a
distinction first made by the Romans and subsequently incorporated
into international law by way of medieval European jurisprudence.
As the eminent military historian, Sir Michael Howard, wrote in
the October 2, 2001 edition of the Times of London, the Romans
distinguished between bellum, war against legitimus hostis,
a legitimate enemy, and guerra, war against latrunculi
pirates, robbers, brigands, and outlaws "the
common enemies of mankind."
bellum, became the standard for interstate conflict, and
it is here that the Geneva Conventions were meant to apply. They
do not apply to the latter, guerra indeed, punishment
for latrunculi traditionally has been summary execution.
While not employing
the term, many legal experts agree that al Qaeda fighters are latrunculi
hardly distinguishable by their actions from pirates and
the like. As Robert Kogod Goldman, an American University law professor
who has worked with human-rights groups told the Washington Times,
"I think under any standard, the captured al Qaeda fighters
simply do not meet the minimum standards set out to be considered
prisoners of war."
At a recent
conference in Europe, Marc Cogen, a professor of international law
at Ghent University argued that "no 'terrorist organization'
thus far has been deemed a combatant under the laws of armed conflict."
Thus al Qaeda members "can be punished for all hostile acts,
including the killing of soldiers, because they have no right to
participate directly in hostilities."
of the Taliban is more problematic. Despite the fact that the United
States did not recognize the Taliban as the legitimate government
of Afghanistan, critics argue that the Taliban's effective control
of Afghanistan, its military structure and functioning government
rendered it a de facto state, the troops of which should be accorded
POW status. They point out that a legal ruling required the United
States to accord Panamanian strongman Manuel Noriega POW status
despite the fact that it did not recognize his government.
But a state
that harbors latrunculi would seem to forfeit its own status
as a legitimate state. The close association of al Qaeda and the
Taliban, especially at the higher levels, vindicates the legal position
of the United States in treating both al Qaeda and Taliban fighters
as detainees rather than POWs.
Under the leadership
of President Bush, the United States has eschewed vengeance against
the perpetrators of September 11. Instead, it has pursued a patient,
discriminating strategy designed to destroy the al Qaeda network
while minimizing collateral damage. The fight will be a long one,
and it will help to have the rest of the civilized world on our
side. But the civilized world needs to distinguish between legitimate
combatants on the one hand and latrunculi on the other. This
distinction makes it clear that the United States has nothing to
apologize for when it comes to its treatment of the detainees in