Lawful or Unlawful Combatants?

The official US position is that the detainees do not meet the criteria of legal combatants as outlined in the 1949 Geneva Conventions and are therefore “unlawful combatants” not entitled to POW status and other privileges specified by the Geneva Conventions. 20 The detainees are not being treated as common criminals to be tried in civil courts, as has previously been the case with terrorists in the United States, because criminal law is too weak a weapon. 21 Instead, the detainees are being treated as members of a military force, either al Qaeda or the Taliban, and as combatants in an armed conflict against the United States.

Secretary Rumsfeld has commented that “the detainees are not being labeled as prisoners of war because they did not engage in warfare according to the precepts of the Geneva Convention—they hide weapons, do not wear uniforms, and try to blur the line between combatant and noncombatant. ”22 One of Rumsfeld’s legal advisers, Ruth Wedgwood, adds that the detainees are not covered by the Geneva Conventions because they are not fighting for a state, and that there has never been a recognized right to make war on the part of private groups.

The Administration has not differentiated between al Qaeda or Taliban detainees in its position that the detainees are unlawful combatants. Additionally, it has advocated from as early as 2002 that no doubt exists as to the status of each individual detainee. 24 The Administration also advocates that under the law of armed conflict the detainees can be held at Guantanamo Bay until the conclusion of the war against terror25 and without the full-dress procedure of criminal trials.

Detainees, therefore, have been held in Guantanamo since January 2002 without charges,27 access to lawyers, or, until recently when the Supreme Court intervened, the right to challenge the legality of their detention. In June 2004 the Administration announced the release of 26 detainees after an internal legal review conducted by Pentagon lawyers in Guantanamo Bay determined that the individuals had been wrongly detained. 28 The timing of this announcement was unfortunate for the Administration since it immediately preceded the Supreme Court hearing at which the Administration argued that detainee cases were being properly reviewed.

Critics leaped on this fact, suspecting the Administration was releasing some individuals before the Supreme Court case in an attempt to demonstrate to the Court that 57/58 it was reviewing the individual status of detainees. 29 More recently, the Administration announced that it has continued reviewing the status of detainees before an administrative tribunal. 30 While the intent of the internal review conducted early in 2004 may be debatable, the fact is that as a result of the June 2004 Supreme Court ruling, the Administration is now reviewing the individual cases of all detainees.

The Bush Administration announced in September 2004 the format for these reviews. The first is called a “Combatant Status Review Tribunal,” which aims to determine whether each detainee meets the criteria of an enemy combatant. The second is called a “Detainee Administrative Review,” which is an annual review to determine the need to continue to detain the unlawful combatant. Following this review a board will determine whether the detainee should be released, transferred, or continue to be detained.

31 As of 2 November 2004, 295 Combatant Status Review Tribunals had been conducted. Only one detainee was determined not to be an enemy combatant and was released. 32 But once again, the Administration’s procedures attracted the attention of the US courts. A Federal District Court Judge ruled on 8 November 2004 that the Administration must treat the detainees as POWs unless they appear before a special tribunal described in Article 5 of the Third Geneva Convention that determines they are not.

The judge ruled that the Combatant Status Review Tribunals do not satisfy the Geneva Convention and are therefore insufficient to deny POW status. 33 The Administration has stated that despite its determination that the detainees are unlawful combatants, it has treated them humanely at all times and provided privileges similar to those that POWs are entitled to under the Geneva Conventions. 34 The principal area of difference between how an “unlawful combatant” and a POW must be treated lies in more permissible interrogation methods and a reduced entitlement to various due process provisions.

POW status under the Geneva Conventions prohibits various methods of interrogation, many of which have been authorized by the Administration for use at Guantanamo Bay, and demands a much higher level of due process protections than that which the Administration has planned for detainees charged with war crimes. 35 POW status demands the same due process protections, for example, that a US soldier would receive under a courts-martial proceeding. The Opposing View

An article in The New York Times reported that in the days following the President’s determination that the Geneva Conventions would not apply to detainees in the GWOT, Colin Powell, then Secretary of State, supported by Secretary Rumsfeld and also the Chairman of the Joint Chiefs of Staff, General Richard Myers, asked the President to reconsider applying POW status to the Taliban fighters. 36 Secretary Powell, and a wide range of critics, believed that since the Taliban fighters were members of the regular armed forces of the de facto government of Afghanistan, they met the criteria for POW sta- 58/59 tus as outlined in the Geneva Conventions.

Secretary Powell was particularly concerned about the increased risk US troops would face in Afghanistan and future conflicts if the Administration failed to consider the Geneva Conventions as applicable. 38 Among other things, POW status would entitle detainees to humane treatment during interrogation and different procedural and evidentiary rights39 to those which the Administration has established for its Military Commissions. 40

Secretary Powell’s view about the POW status of the Taliban fighters is shared by many US and international experts,41 including subject specialists at the UN. 42 These critics also argue that any al Qaeda detainees who were acting as militia or volunteer corps members that formed part of the Taliban armed forces are also entitled to POW status. 43 Moreover, even if the al Qaeda members do not qualify as members of the Taliban armed forces or as members of its integral militia, they may still qualify for POW status under the Geneva Conventions if they were part of an independent militia and meet the criteria44 outlined in the Conventions.

Regardless, as the critics point out, the Geneva Conventions and US military regulations that precede 9/1146 require findings by a competent tribunal before detainees are deprived of POW status. 47 As discussed, tribunals are being convened by the Administration, but they have been ruled by a Federal District Court Judge as insufficient to deny POW status.