Al Quaeda prisoners arrive at Guantanamo Bay, Cuba.
January 12, 2002 10:38 AM   Subscribe

Al Quaeda prisoners arrive at Guantanamo Bay, Cuba. With all the war talk, why are these men not being classified as POWs? Simply because they didn't wear uniforms?
posted by Ty Webb (14 comments total)
Because then they'd have certain legal rights we don't want them to have. It was the same with our soldiers in Vietnam; no official declaration of war (by congress I'm pretty sure) means no prisoners of war which means no protection by international treaties about prisoners of war.

War has lots of actual laws in the form of treaties; not declaring war makes the treaties inapplicable. It's why we never declare war.
posted by tcobretti at 10:55 AM on January 12, 2002

POW's? No. These are members of a group of bad people called Al Queda and are not members of an organized army representing a country that is at war with our country . When we rounded up Japanese citizens in WWII and put them in a prison camp, we kept them there till we decided it was ok to release them. So to with German soldiers brought here and imprisoned as POWs. But these guys are different, so we call them "detainees." and may keep them locked up for a long time, unless.....but to release them back? doubtful. They are in most instances not Afghanis but from Arab countries. I doubt they are wanted back home by their governments. I say let them join th eDemocratic Party.
posted by Postroad at 10:59 AM on January 12, 2002

The U.S. government's reasons for not classifying them as POW's can be summed up thusly:


Members of the al Qaeda organization are not considered "prisoners of war," and therefore, do not have protection under the Geneva Conventions. Instead, al Qaeda terrorists are, under international law, considered "illegal combatants," and are subject to trial by military tribunals. The United Nations has established criminal tribunals to try illegal combatants in Yugoslavia and Rwanda.



If we accept that we are at war, the 1949 Geneva Conventions—the most widely observed treaties in the world, counting even Afghanistan among their signatories—lay out four requirements for fighters to be considered combatants, entitled to the protections of the law of armed conflict and prisoner-of-war status if captured: they must (1) be commanded by one responsible for their conduct, (2) have a fixed and distinctive sign that is recognizable at a distance, (3) bear arms openly, and (4) follow the law of war.



"According to long-established rules of war, enemies who do not wear uniforms, hide their weapons from view, and act as saboteurs are considered "illegal combatants." Illegal combatants are not entitled to prisoner of war status under the Geneva Conventions, are not protected by the law of war, and are subject to summary execution upon detection. When captured, such infiltrators are not entitled to be tried before civilian courts, court-martial panels, or international tribunals based on the Nuremberg model, but must instead face specially organized military commissions."

So yes, Ty, not wearing uniforms is admittedly a part of the distinction, but not the only one.
posted by mr_crash_davis at 11:13 AM on January 12, 2002

Seems like the U.S. is trying to have it both ways. On the one hand, the government and media have placed the nation and world squarely on war footing, but our opponents are not soldiers. It's either a military or a police action; blurring the distinctions, as Rumsfeld seems to be doing, has the potential for tragic repercussions domestically, and seems to me quite a transparent ploy to deny these and future prisoners basic rights.

Whether or not al Quaeda wore uniforms, they were pretty clear about their intentions both before and after the surprise attacks of Sept. 11.
posted by Ty Webb at 11:30 AM on January 12, 2002

TW, wtf?

Try reading your own article:

At Camp X-Ray, Lehnert said, the detainees will receive humane but not comfortable treatment. They will sleep on mats... will have "the ability to relieve themselves" in the cells but will be taken to latrines one by one by military police if necessary... The detainees will be fed a pork-free diet in deference to Islamic practice, Lehnert said, and will be allowed to "practice the free expression of their religious beliefs." Representatives of the International Red Cross and the Red Crescent are here to ensure they are treated humanely... the detainees were given medical examinations, showered and were dressed in clean orange jumpsuits....

He also said they were given an "accessory pack" filled with cereal, granola bars and peanuts, and "comfort items" that included toiletries and two bath-sized towels, "one to be used as a prayer mat, if they so wish."

How do you interpret this as the denial of basic rights? What do you consider basic rights, blow jobs and pedicures?

mr_crash_davis, great post.
posted by David Dark at 1:11 PM on January 12, 2002

Actually, the not wearing uniforms is the least of it.

Yes, we are at "war." Also true that Afghanistan is a signatory of the G.C. And true that we're fighting military war type actions.

However, the war bit ends there. There is no state that Al Quaeda owes allegiance to. To put it more colloquially, Al Quaeda is composed of mercenaries who owe their allegiance to a nongovernment official. If there is no government to take to task for the crimes and war-type actions taken by these individuals, they are not POWs, because they are not following the Geneva convention, i.e. Having identifiable chains of command and people to hold responsible in a world court.

The magnitude of the September 11th attacks does not give them the cover of a convention based on a treaty of which neither they nor their superiors are party to. In fact, just the opposite, as Rumsfeld points out: they're illegal combatants if it's a war, mercenaries/spies/terrorists if it's a police action. Either way, the GC is a two way street, you have certain responsibilities in order to receive the rights granted:

1) Be commanded by one responsible for their conduct - the Taleban have, probably, and should be treated accordingly. Just following orders _does_ count even if it's Mullah Omar. Al Quaeda do not serve a recognized military master.

2) Have fixed and distinctive signs recognizable at a distance - hardly. That’s how they've "melted" into Somalia and so forth.

3) bear arms openly - some have, some haven't. Boxcutters hardly count.

4) follow the law of war - We'll probably never know.

And, for the record, legally, my guess is that the Taleban should be treated differently than Al Quaeda, as they _are_ part of a government army, albeit now destroyed. They may, even, have followed the G.C. Rules, in which case they should be afforded the cover of the G.C.

So, to sum up - you don't follow the Geneva Convention before you're taken prisoner, you are not afforded its protections afterwards.
posted by swerdloff at 1:19 PM on January 12, 2002

This thread is well-written and discussed, so just for a moment let me add this pre-emptive strike at the eventual Colonel Jessep "YOU CAN'T HANDLE THE TRUTH!" joke.

Hopefully, its comedy value will now be safely defused for the remainder of this thread. We now return you to your irregularly programmed schedule.
posted by hincandenza at 1:47 PM on January 12, 2002

Cuz we're not at "war."
I love it... the rules of war. What, pray tell, are those?
Personally, I think we're doing okay on this one. They are going to be safe and we've considered their needs pretty well, but they won't be "comfortable" as Ashcroft put it.
posted by aacheson at 1:50 PM on January 12, 2002

It's the use of that 'war' word that causes confusion; overuse: 'war on drugs, poverty,etc." has cheapened the original meaning...a 'real' war is one that has official legal definition and standing, the war on terrorism does not qualify, although it certainly has many of the trappings. It's wierd that although Korea and Vietnam were not official wars, our guys they captured were called 'POWs'...go figure.
posted by Mack Twain at 3:12 PM on January 12, 2002

Ty Webb, pray tell, who blurred the distinctions between soldiers of a recognized nation-state and mere criminals -- the United States, or ... just on a crazy, nutty whim let's consider it ... I know it's a strange, alien way to look at the world, but ...


Talk about transference of responsibility here.

Sheesh. Unfortunately for your need for "clear distinctions", 4GW (fourth generation warfare) is worrisomely likely to be more and more blurry as proxy forces, networks, and special operations troops face off in non-conventional ways. If we're attacked by a non-state paramilitary, our actions are going to be falling in the gray area between conventional military war and policing. Now, ideally, Afghanistan is the only nation where we'll need to send in such a large number of troops, but there will be other actions. Yemen is acting militarily on their own after getting US training. Somalia is acting with at least some support from Kenya. The Philippines are going to use American equipment and training but probably no troops. And so forth. This isn't a game of Risk, after all.

tcobretti, you're completely misunderstanding the reasons we don't "declare war". The Geneva Conventions apply whether or not war is declared; mere instigation of hostilities by signatories are all that's required. The reason that declarations of war have been eschewed has much more to do with domestic politics: since 1973, Congress has tried to exercise greater oversight over miltary deployments through the War Powers Act, which was passed over Nixon's veto. This is certainly an authorized military action under the act, as demonstrated by Congress's own joint resolution, and that makes it the legal equivalent of a state of war. If this still bugs you, rest easy with the thought that under War Powers Congress sets review provisions that were not present under prior actual declarations of war.
posted by dhartung at 4:14 PM on January 12, 2002

All I know is that if Lenhert said the prisoners will receive "humane but not comfortable treatment" then that's good enough for me. Especially when the Washington Post and CNN have repeated it all day. Yup. Helps reinforce my need to feel like we're the good guys and we know what to do with the bad guys.
posted by victors at 6:10 PM on January 12, 2002

Is anyone taking bets on how long we have before the first bloodbath?
posted by Ptrin at 6:23 PM on January 12, 2002

To create POW's, one has to clearly look at the definition of war. War has varied uses and definitions, you can all look this up, the narrow definiton to make a point is: armed conflict between states or nations (international war) or between factions within a state (civil war), prosecuted by force and having the purpose of compelling the defeated side to do the will of the victor.

As the article states, "Al Quaeda prisoners", ergo, no state no pow. just a group in search of a country, still I might add.
posted by bittennails at 7:44 PM on January 12, 2002

what's more, if they were declared pow, then america would have to admit they're having a war, and thus, they couldn't have the olympics (it's not allowed to host the olympics when you're at war)
posted by aureliano buendia at 4:11 AM on January 14, 2002

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