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Michael Glennon interview - 2002-02-21


MR. BORGIDA:
And joining me now to discuss the legal protection al Qaeda detainees are being afforded in Guantanamo Bay, Cuba, is international legal expert Michael Glennon, Professor of Law at the University of California at Davis and a Woodrow Wilson Center Fellow. Thanks for joining us today.

This is to some an esoteric issue, but to others highly important. It has been something that has been swirling around official Washington and official capitals, this notion of prisoner of war and detainee, the definitions of these words that are clearly very, very important in a court of law. Do us a big favor, educate us a little bit. What is the distinction between "prisoner of war" and "detainee," and how important is that?

PROF. GLENNON:
David, it's critically important. That is "the" question. And that, as you say, is the subject of a huge debate here in Washington. It all traces back to a 1949 treaty. The treaty is called the Third Geneva Convention. The United States is a party. Afghanistan is a party. And essentially, the Treaty says two things: Number one, what is a prisoner of war; and, second, how do you have to treat them.

The position of the United States Government on this has taken several months to work out, but President Bush announced it last week. And it is this: That under the Treaty, people from the Taliban will be subject to the Convention. The Treaty applies to them. But they do not meet the criteria for prisoners of war.

And there are four criteria, four standards, four tests, that you have to meet to be considered a POW. First, you have to have worn a uniform or some distinctive insignia that sets you apart from the civilian population. Second, you have to carry arms openly. Third, you have to be part of a command structure; you have to take orders from somebody. And fourth, you have to respect the laws and customs of war.

Now, the Bush administration says that Taliban prisoners don't meet those criteria, so most of them will not be prisoners of war. The second group is al Qaeda prisoners, and the Bush administration says you don't even need to apply those four criteria to al Qaeda for the simple reason being that al Qaeda is not a party to the Third Geneva Convention.

MR. BORGIDA:
Professor Glennon, underlying a lot of this is the notion that the Bush administration, and law enforcement officials, want to be able to continue to interrogate those detainees, correct? And if they have prisoner of war status, they are limited to name, rank and serial number. And so obviously they want to continue to mine these prisoners in Cuba for more information. Isn't that correct?

PROF. GLENNON:
That's correct. The ironic thing is it probably doesn't make any difference, for purposes of questioning, whether they are called prisoners of war or not. It is true, under the Geneva Conventions, they are required to say only name, rank, serial number, and one or two other things, but nothing in the Geneva Convention says that you can't continue to ask them questions. It just says they don't have to answer.

MR. BORGIDA:
So you can continue to ask and they can continue to say no and no comment?

PROF. GLENNON:
That's exactly right.

MR. BORGIDA:
Based on what you know and having read press reports about the treatment of the detainees in Guantanamo, the average American might be sitting around at home and saying, well, this is not such horrible treatment here. They have a Muslim chaplain. They're eating food that they're used to. They have plenty of opportunity for prayer and so forth. Is that important in the whole discussion of what is fair and equitable treatment for prisoners?

PROF. GLENNON:
It is important to recognize that even if they are not prisoners of war, international law requires that they are being treated humanely. And the United States Government says that while they are not prisoners of war, they are indeed being treated humanely, in accordance with international law. And there is a very good reason -- probably several -- that the United States Government does not want to recognize them as prisoners of war. One being, that if they are prisoners of war, at the end of the war they have to be released. And the United States believes, undoubtedly correctly, that quite a number of these people are extremely dangerous, and it would be insane to release them after the war in Afghanistan ends.

MR. BORGIDA:
Let me ask you one quick question in the 30 seconds or so that we have left. The so-called American Taliban, John Walker Lindh, will be on trial not far from where we are sitting right now. It is a combustible context in the United States. The environment is a bit chilly. Americans are not happy with terrorism at the moment. Can this American get a fair trial, in your view?

PROF. GLENNON:
I think he probably can get a fair trial. Undoubtedly one of the defenses that his lawyers will raise is that the press reports of his activities have been so prejudiced and biased that he cannot get a fair trial. And ultimately this will have to be an issue for the courts to decide.

MR. BORGIDA:
Well, let the courts decide, as I'm sure they will. The views of Law Professor Michael Glennon, a Fellow at the Woodrow Wilson Center and a Law Professor at the University of California. Thanks for joining us.

PROF. GLENNON:
Thank you.

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