Dear horemheb-ga
Excellent question! The short answer revolves around the fact that
(right or wrong) the detainees at Guantanamo are not officially
considered ?legal combatants?:
"In short, the United States government has concluded that the attacks
of September 11 have placed the United States in a state of armed
conflict, to which the laws of war apply. It has also determined that
members of the al-Qaida terrorist network and the Taliban militia are
illegal combatants under the laws of war, and so cannot claim the
legal protections and benefits that accrue to legal belligerents, such
as prisoner of war status under the Third Geneva Convention of 1949."
LEGAL ARGUMENTS FOR AVOIDING THE JURISDICTION OF THE GENEVA CONVENTIONS
http://www.disinfopedia.org/wiki.phtml?title=Legal_Arguments_for_Avoiding_the_Jurisdiction_of_the_Geneva_Conventions
Now for the long answer?
The official position of the United States with regard to those who
have been denied prisoner of war status is outlined in a memo
published by the Bureau of Public Affairs, U.S. Department of State
dated February 7, 2002:
STATUS OF DETAINEES AT GUANTANAMO
http://www.state.gov/p/sa/rls/fs/7910.htm
The reasoning behind the disqualification for prisoner of war status
in some instances (specifically in regard to those believed to be
members of Al-Qaida) is supposedly because they are not considered,
for lack of a better term, ?legal combatants?. In the memo the State
Department says forthrightly:
?The President has determined that the Geneva Convention applies to
the Taliban detainees, but not to the al-Qaida detainees. Al-Qaida is
not a state party to the Geneva Convention; it is a foreign terrorist
group. As such, its members are not entitled to POW status.
Although we never recognized the Taliban as the legitimate Afghan
government, Afghanistan is a party to the Convention, and the
President has determined that the Taliban are covered by the
Convention. Under the terms of the Geneva Convention, however, the
Taliban detainees do not qualify as POWs.
Therefore, neither the Taliban nor al-Qaida detainees are entitled to
POW status. Even though the detainees are not entitled to POW
privileges, they will be provided many POW privileges as a matter of
policy.?
It appears then that while the sovereign nation of Afghanistan is
indeed a party to the Convention, the detainees at Guantanamo, being
considered rogue members of a non-government sanctioned group, are,
for the purposes of status, mere criminals who were attempting to
usurp that nation?s government rather than an opposing army or enemy.
The implication here is that the groups allegedly incited an uprising
(similar to a coup) and were simply arrested for doing so. The
interpretation then is that since the United States did not wage war
against the Afghanistan government (a Geneva Convention treaty member)
but rather occupied the country in order to wrest the government from
the hands of a rogue group (a non-member of the Geneva Convention
treaty) in an effort to restore the government to its legally
governing body, that no such treaty requiring the US to treat
detainees as prisoners of war exists between the US and Taliban or
al-Qaida. Having said that, the US government?s position was, and
still is, that no law or treaty mandating that the US give a prisoner
of war status to anyone in those groups who is detained in the course
of this conflict, exists, therefore no such status will be granted to
them.
This position has not changed since that memo back in 2002, as
evidenced by this summarized statement by US Secretary of Defense,
Donald Rumsfeld Published on Friday, February 20, 2004:
?It seemed extraordinary enough, back in late 2001, that detainees
would be flown halfway around the world from the war in Afghanistan to
the eastern tip of Cuba. But that was only the start of it. The
hundreds of men, suspected members of either the Taliban or al-Qa'ida,
were not to be regarded as conventional prisoners of war. Instead, the
US Secretary of Defense, Donald Rumsfeld, told us, they were being
categorized as "enemy combatants", subject neither to the Geneva
Conventions nor to the purview of the US civilian court system.
In other words, they were subject to indefinite detention, without
access to a lawyer, without the privilege of knowing why they were
being held or what they were accused of. Even if they were to come to
trial, they would appear before a military commission whose
three-judge panel would have sole discretion to convict them and, if
they so chose, to sentence them to death.?
HOW CAMP DELTA ALLOWED US TO AVOID GENEVA CONVENTION
http://www.commondreams.org/headlines04/0220-01.htm
By this we see that the US not only considers the Articles of the
Geneva Convention to be irrelevant to the detainees status, but also
that US law is not applicable in these cases either. The detainees, in
their view apparently, are unique ?special cases? by whom only a
special tribunal can judge. As a matter of fact, by ?Order of the
President?, President George W. Bush declared the following in his
issue (66 F.R. 57833) dated November 13, 2001supporting this very
notion and for all intents and purposes legalizing the matter:
?Section 7(b) With respect to any individual subject to this order --
(1) military tribunals shall have exclusive jurisdiction with respect
to offenses by the individual; and
(2) the individual shall not be privileged to seek any remedy or
maintain any proceeding, directly or indirectly, or to have any such
remedy or proceeding sought on the individual's behalf, in (i) any
court of the United States, or any State thereof, (ii) any court of
any foreign nation, or (iii) any international tribunal.?
PRESIDENT?S MILITARY ORDER OF NOVEMBER 13, 2001, DETENTION, TREATMENT,
AND TRIAL OF CERTAIN NON-CITIZENS IN THE WAR AGAINST TERRORISM (66
F.R. 57833)
http://www.disinfopedia.org/wiki.phtml?title=President%92s_Military_Order_of_November_13%2C_2001%2C_Detention%2C_Treatment%2C_and_Trial_of_Certain_Non-Citizens_in_the_War_Against_Terrorism
In answer to the last part of your question, legally speaking, in
making this order, the President exercised his authority under:
UNITED STATES CODE TITLE 10 Subtitle A PART II
CHAPTER 47 SUBCHAPTER VII Sec. 836.
Sec. 836. - Art. 36. President may prescribe rules
(a) Pretrial, trial, and post-trial procedures, including modes of
proof, for cases arising under this chapter triable in courts-martial,
military commissions and other military tribunals, and procedures for
courts of inquiry, MAY BE PRESCRIBED BY THE PRESIDENT [emphasis mine
for emphasis sake here] by regulations which shall, so far as he
considers practicable, apply the principles of law and the rules of
evidence generally recognized in the trial of criminal cases in the
United States district courts, but which may not be contrary to or
inconsistent with this chapter.
(b) All rules and regulations made under this article shall be uniform
insofar as practicable
UNITED STATES CODE TITLE 10 Subtitle A PART II
CHAPTER 47 SUBCHAPTER VII Sec. 836.
http://www4.law.cornell.edu/cgi-bin/htm_hl?DB=uscode10&STEMMER=en&WORDS=836+&COLOUR=Red&STYLE=s&URL=/uscode/10/836.html#muscat_highlighter_first_match
Of course, any two people, like ourselves for example, could enter
into an endless debate about whether or not we each personally BELIEVE
these reasons are justified or even legal, but for the sake of
providing an answer and avoiding debate I?ll not disclose my personal
position on the matter nor shall I ask you yours. Suffice it to say
that these are the reasons you inquired about, and if they make sense
to you (or confirm your suspicion and doubt) then we both can claim a
measure of success here, can?t we?
I hope you find that my research exceeds your expectations. If you
have any questions about my research please post a clarification
request prior to rating the answer. Otherwise I welcome your rating
and your final comments and I look forward to working with you again
in the near future. Thank you for bringing your question to us.
Best regards;
Tutuzdad-ga ? Google Answers Researcher
INFORMATION SOURCES
GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR
http://193.194.138.190/html/menu3/b/91.htm
LEGAL ARGUMENTS FOR AVOIDING THE JURISDICTION OF THE GENEVA CONVENTIONS
http://www.disinfopedia.org/wiki.phtml?title=Legal_Arguments_for_Avoiding_the_Jurisdiction_of_the_Geneva_Conventions
STATUS OF DETAINEES AT GUANTANAMO
http://www.state.gov/p/sa/rls/fs/7910.htm
HOW CAMP DELTA ALLOWED US TO AVOID GENEVA CONVENTION
http://www.commondreams.org/headlines04/0220-01.htm
PRESIDENT?S MILITARY ORDER OF NOVEMBER 13, 2001, DETENTION, TREATMENT,
AND TRIAL OF CERTAIN NON-CITIZENS IN THE WAR AGAINST TERRORISM (66
F.R. 57833)
http://www.disinfopedia.org/wiki.phtml?title=President%92s_Military_Order_of_November_13%2C_2001%2C_Detention%2C_Treatment%2C_and_Trial_of_Certain_Non-Citizens_in_the_War_Against_Terrorism
UNITED STATES CODE TITLE 10 Subtitle A PART II
CHAPTER 47 SUBCHAPTER VII Sec. 836.
http://www4.law.cornell.edu/cgi-bin/htm_hl?DB=uscode10&STEMMER=en&WORDS=836+&COLOUR=Red&STYLE=s&URL=/uscode/10/836.html#muscat_highlighter_first_match
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Clarification of Answer by
tutuzdad-ga
on
02 Sep 2004 07:31 PDT
Certainly. Allow me to expand on my answer...
The United State?s involvement in the war in Afghanistan began on Oct.
7, 2001. Within a little more than 30 days, on November 13, 2001,
President Bush issued his Presidential Order as to how captured people
were to be considered and treated, and what amenities they were to be
afforded according to their status:
PRESIDENT?S MILITARY ORDER OF NOVEMBER 13, 2001, DETENTION, TREATMENT,
AND TRIAL OF CERTAIN NON-CITIZENS IN THE WAR AGAINST TERRORISM (66
F.R. 57833)
http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html
The stage for this was undoubtedly set by the US PATRIOT ACT which
gave the government broad and sweeping authority ?To deter and punish
terrorist acts in the United States and around the world??
US PATRIOT ACT
http://thomas.loc.gov/cgi-bin/query/z?c107:H.R.3162.ENR:
Clearly American?s were still reeling from the attacks on September 11
and were still demanding their ?pound of flesh? so it wasn?t until
photographs from Guantanamo began to surface that liberals and
conservatives alike began to question the treatment of detainees, and
for a variety of surprising reasons as you will see below in a moment.
The Third Geneva Convention states that POWs must be spared "outrages
upon personal dignity," "humiliating and degrading treatment," as well
as "insults and public curiosity," - all of which began appearing in
the media in the form of pictures initially released by none other
than the US Department of Defense. It was only then that the Bush
Administration announced that it did not consider the captives to be
POWs, but rather "unlawful combatants" and issued the Presidential
Order justifying the treatment the public was seeing on their
televisions and in the newspapers. That announcement sparked further
outrage and allegations that the United States was flouting
international law. In February, the White House reaffirmed its
position that it did not consider the detainees to be POWs.
?To shed light on whether or not the Al Qaeda and Taliban detainees in
Guantanamo qualify for POW status, the Crimes of War Project
interviewed a number of legal experts. Most of our experts disagreed
with Bush Administration. They all cited Article 4 of the Third Geneva
Convention, which defines prisoners of war as "Members of the armed
forces of a Party to the conflict as well as members of militias or
volunteer corps forming part of such armed forces." According to the
Convention, members of a regular army are automatically entitled to
POW status, whereas members of militias or volunteer corps must meet
the following four criteria:
Having a chain of command
Wearing a uniform or some sort fixed or distinctive sign
Carrying their arms openly
Conducting their operations in accordance with the laws and customs of war
Most of our experts said they believed that the Taliban fell under the
first category ? that of being the regular army of Afghanistan ? and
are therefore entitled to POW status.?
CRIMES OF WAR PROJECT
http://www.crimesofwar.org/expert/pow-intro.html
One major expert, Robert Goldman, professor of law and co-director of
the Center for Human Rights and Humanitarian Law at the Washington
College of Law, American University, said, ?"The Administration is
applying the wrong part of the Conventions. They have invoked the
provisions for irregular combatants not under Article 4-1, but under
Article 4-2. They are treating them as though they are guerrillas or
partisans who were fighting for a party to the conflict. And that?s
wrong in my view."
ROBERT KOGOD GOLDMAN
http://www.crimesofwar.org/expert/pow-goldman.html
One of the major arguments for this position was that Article 5 of the
Third Geneva Convention says that if there is any doubt as to whether
or not the detainees meet the conditions, then they should be granted
POW status until a "competent tribunal" determines otherwise.
Some experts were on the fence on the issue. A P V Rogers, OBE, a
retired major general in the British Army and recognized expert on the
laws of war, for example said, ?We don?t have the facts. We don?t know
to what extent these people had a proper command structure, wore some
sort of distinguishing features and complied with the laws of armed
conflict. We just don?t know."
APV ROGERS, OBE
http://www.crimesofwar.org/expert/pow-rogers.html
Still others were divided on their position, such as Curtis Doebbler,
Professor of Human Rights Law at American University in Cairo, who
served as an advisor to the Taliban government on the laws of war. He
agrees that not enough is known about each groups role in the war
relative to the Geneva Convention but tends to believe that the
Taliban do meet the criteria enumerated in Article 4 while Al Qaeda
does not:
"The first thing is to determine the status of the detainees, and
until a competent tribunal declares that they are not POWs, then they
are. After that, you can have legal wrangling over the criteria in the
Geneva Conventions?
CURTIS DOEBBLER
http://www.crimesofwar.org/expert/pow-doebbler.html
Taking a somewhat unorthodox stance on the issue Michael Noone, a
professor of international and comparative law at Catholic University
of America and a former Judge Advocate in the US Air Force says that
while the Conventions are a useful thing to have it is too big of a
stretch to assume that the Conventions should be applied to those who
do not respect and regard the Conventions in the treatment of their
own prisoners:
"The kinds of people that we are liable to be confronting in these
kinds of wars are not likely to follow the Conventions anyway. It?s
arbitrary and capricious."
MICHAEL NOONE
http://www.crimesofwar.org/expert/pow-noone.html
Finally, H.Wayne Elliott, a retired US Lieutenant colonel and former
chief of the international law division at the US Army?s Judge
Advocate General?s School, questioned the intelligence of denying
prisoners POW status because of how this might impact our own troops
in future confrontations though they find themselves prisoners of war:
"I think we may have set a bad precedent. The drawback is that we have
given the other side some ammunition when they capture our people"
H WAYNE ELLIOTT
http://www.crimesofwar.org/expert/pow-elliott.html
Here are a multitude of sources for finding articles and other expert
opinions on the issue:
CRIMES OF WAR: SEARCH
://www.google.com/u/CWP?q=guantanamo&sa=Google+Search
://www.google.com/u/CWP?q=prisoner+of+war
://www.google.com/u/CWP?q=GENEVA+CONVENTION
POW?s OR LAWFUL COMBATANTS?
http://www.crimesofwar.org/expert/pow-intro.html
TERRORISM AND THE LAWS OF WAR
http://www.crimesofwar.org/expert/attack-intro.html
I hope this adds significantly to what I have already provided and I
look forward to your final rating and comments.
Regards;
Tutuzdad-ga
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