Camp X-Ray

When is a war prisoner not a POW? When the U.S. brings Afghan detainees to Guantanamo Bay

By Michael Elliott. Monday, Jan. 28, 2002

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    The Geneva Convention does contemplate that some irregular forces captured in battle need not be considered POWs. That may well apply to members of al-Qaeda, a free-floating band of terrorists. But not all of those at Gitmo are al-Qaeda men. Some--the Pentagon won't say how many--were members of the Taliban and presumably thought they were part of the Afghan army. Are they POWs? Washington says no, because the Taliban had no clear chain of command and was not a legitimate government. That may be so; unfortunately, as Amnesty International has pointed out, under the Geneva Convention the Pentagon has no business making such a determination. Those who fall into the enemy's hands are entitled to POW status until a "competent tribunal" has determined their status. In the case of those in Cuba, that hasn't happened.

    More curious still is the matter of the prisoners' ultimate fate. Rumsfeld has laid out four options: a military trial, a trial in U.S. criminal courts, return to their home countries for prosecution, or continued detention "while additional intelligence is gathered." The last seems a distinct possibility; the Pentagon plans to build 2,000 cells at Camp X-Ray. "This will be a big deal down there for at least two years, guaranteed," says Army Lieut. General B.B. Bell, who commands Fort Hood, Texas, the base from which military police have been deployed to Cuba. But it's hard to find a justification for such detention in the Geneva Convention or anywhere else. Leaving the prisoners "indefinitely beyond the reach of any legal regime," said the Economist last week, "would put America--pre-eminently a nation of laws--itself outside the law."

    Until the Pentagon sorts out the legal issues, criticism from Europe is likely to grow. Still, things could be worse. The prisoners may be in Cuba, but nobody has yet forced them to listen to Fidel Castro's long-winded speeches. Now that really would be cruel.

    --With reporting by Mark Thompson/Washington

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