U.S. officials say Taleban and al-Qaida prisoners are being treated humanely, but officials refuse to recognize them as prisoners of war. The detainees' legal status could have far-reaching implications.
Fending off some international criticism, Defense Secretary Donald Rumsfeld and other U.S. officials say the Taleban and al-Qaida prisoners are being treated in accordance with the Geneva Convention. But the United States is refusing to grant prisoner of war status, instead referring to them as "battlefield detainees" or "unlawful combatants."
The issue is not merely one of labels. Legal experts say the distinction has profound implications for future conflicts.
Michael Posner, executive director of the Lawyers' Committee for Human Rights, says the United States should accord combat prisoners the same status it would demand for its own men and women.
"If an American plane went down in Afghanistan and soldiers were apprehended, we would instantly be going to the ICRC, the Red Cross, and invoking international humanitarian law, saying these are prisoners of war who are entitled to visits, entitled to a number of legal safeguards under the international system. So I think we have more at stake and more to lose, if there is a dilution of international humanitarian law, than any country in the world," Mr. Posner says.
The Geneva Convention sets out criteria for determining the status of what it terms "lawful combatants" who are entitled to designation as prisoners of war a status which grants certain rights and protections.
Jay Farrar, a military analyst at the Center for Strategic and International Studies, says the United States has decided the al-Qaida and Taleban detainees do not meet Geneva Convention criteria to be called prisoners of war.
"The U.S. is and always has been a country of laws and a participant in international norms to which it also wants its people held. But the reality here is that the United States for the first time has stood up and decided that these are non-state actors, in other words, they are acting without the benefit of legitimacy given to a state that has recognized international laws and norms, and therefore they don't enjoy the same rights and norms and protections that people fighting on behalf of an internationally recognized country might have. So they're in basically a legal limbo status, so to speak," he explained.
U.S. officials say the al-Qaida fighters are members of a terrorist network, and therefore do not merit POW status. As for the Taleban, officials say they were not fighting for an internationally recognized government.
Robert Goldman, a specialist on the law of war at the American University Law School, says that, from a legal standpoint, that is simply wrong. Mr. Goldman says Defense Secretary Rumsfeld is getting bad legal advice.
"First of all, there's been some suggestions by various spokesmen in the administration that somehow since we did not recognize the Taleban, the issue of prisoner of war status is up in the air, at least for Taleban fighters. And, frankly, that's totally incorrect, and also belies past U.S. practice," he says.
Mr. Goldman believes there is some confusion in official military circles about separating the al-Qaida fighters from Taleban troops. While the status of the al-Qaida fighters is open to debate, says Mr. Goldman, there should be no question about the Taleban forces because they fought on behalf of a government and whether it was recognized by the United States is irrelevant.
"Well, what if you're accusing a person and you're saying, 'you, John Jones, [anyone] belong to Al-Qaeda.' And he says, 'no, you're mixing me up with John Jones, Jr. I belong to the Taleban armed forces.' He should be able to have that not determined, frankly, by the secretary of defense. That should be determined by some competent tribunal. That would go down much better with the rest of the world," Mr. Goldman says.
In fact, U.S. military regulations recognize the right of a prisoner to be presumed to be a legitimate POW until judged otherwise, and has the right to have his or her status determined by a military panel of three officers.
During the Gulf War, U.S. authorities held nearly 1,200 of these so-called "article v" tribunals, which are named after the Geneva Convention article that calls for a presumption that detainees are to be treated as POWs.
Asked why such hearings had not been held in Afghanistan, a Pentagon spokesman who demanded anonymity, would only say that a determination has been made that the detainees are not POWs.
However, in a briefing Thursday, Defense Secretary Rumsfeld says government lawyers are examining the question and a determination will be made soon. But, he added, their status has no practical effect because the captives are being treated humanely.
"It is not critical - it is interesting, from a legal standpoint, it is not critical or even relevant to their treatment, because they are being treated in a manner that's consistent with the Geneva Convention, and in a humane way. And that is a fact," he says.
Military analyst Jay Farrar, from the Center for Strategic and International Studies says the United States has stayed just within legal confines.
"It's a dirty game, at the end of the day, and it's not a very pleasant situation. But I think what's happened here is I think the United States has decided go along the tougher edge of the line, so to speak, without crossing over it," Mr. Farrar says.
But some legal analysts believe the United States is stalling on the issue so it can question the detainees for intelligence information without legal interference and to keep them detained as long as possible to prevent them from carrying out any future terrorist acts.