Guantanamo Bay: undermining the global war on terror

Joint Force Quarterly, Oct, 2005 by Gerard P. Fogarty

The administration has stated that, despite its determination that the detainees are unlawful combatants, it has treated them humanely at all times and provided privileges similar to those the Geneva Conventions grant to POWs. The principal difference is the more permissible interrogation and a reduced entitlement to due process afforded to the unlawful combatant. POW status under the Geneva Conventions prohibits various methods of interrogation, many of which have been authorized by the administration for Guantanamo, and demands a higher level of due process protection than planned for detainees charged with war crimes. POW status demands the same due process protections, for example, that a U.S. Soldier would receive under a court-martial proceeding.

In the days following the President's determination that the Geneva Conventions would not apply to detainees in the war on terror, Secretary of State Colin Powell, supported by Secretary Rumsfeld and the Chairman of the Joint Chiefs of Staff, General Richard Myers, asked the President to reconsider applying POW status to the Taliban fighters. (15) A wide range of critics believed that since the fighters were members of the regular armed forces of the de facto government of Afghanistan, they met the Geneva criteria for POW status. Secretary Powell was particularly concerned about the increased risk for troops in Afghanistan and in future conflicts if the administration disavowed the conventions. Among other things, POW status would entitle detainees to humane treatment during interrogation and different procedural and evidentiary rights from those established for illegal combatants.

Secretary Powell's view about the POW status of Taliban fighters is shared by many U.S. and international experts, (16) including the United Nations. (17) These critics also argue that any al Qaeda detainees who were acting as militia or volunteer corps members that formed part of the Taliban armed forces are also eligible. Moreover, even if the al Qaeda members do not qualify as members of the Taliban armed forces or of its integral militia, they may still qualify for POW status under the Geneva Conventions if they were part of an independent militia and meet the criteria. Regardless, as critics point out, the Geneva Conventions and U.S. military regulations that precede 9/11 require findings by a competent tribunal. As discussed, tribunals have only recently begun but have been ruled by a Federal district court judge as insufficient to deny POW status.

Due Process Protections

The administration believes that civic ideals should not frustrate an effective defense in the war on terror. To overcome the limitations of criminal law, for example, and in keeping with the detainees' status as unlawful combatants, it has established Military Commissions--a type of military tribunal not used since World War II for spies, saboteurs, and war criminals--to try designated detainees. These commissions are applicable only to non U.S. citizens and are designed to protect the individual rights of the accused while also safeguarding classified and sensitive information used as evidence in the proceedings. The administration states that the commissions are recognized by the Geneva Conventions and have been used by many countries. However, when Egypt used this form of tribunal in 2000, it was rebuked in the U.S. State Department yearly report on human rights abuses. Presented to Congress, the report stated that this type of military court deprived hundreds of civilian defendants of their constitutional rights. (18)