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"Establishing the Legal Status of People in War" 
  02/01/2002

The U.S. is in a precarious situation right now: We have these 158 men locked away for safe keeping at the U.S. Naval Base in Guantanamo Bay, Cuba. Those men, as you probably know, are captured al-Qaeda members and Taliban fighters. The problem comes in with some sensitive people wanting to fight for the “human rights" of these 158 men, if you wish to call them that.

Here’s the tricky question the U.S. faces: Are the 158 men being held “prisoners of war," or are they detainees, as the Bush Administration argues? I’m not going to make the determination, and neither are you, directly. This column isn’t about what the legal status of those being held in Cuba. Rather, I will share some information and thoughts, and you decide for yourself, if the status of “POW" should be applicable.

George W. Bush’s comment during his first State of the Union address, “As we gather tonight, the nation is at war," is not true. The U.S. is not at war. Sure, we are in the midst of armed conflict, but we are not in a declared state of war. There has been no formal declaration of war issued. The president, right now, is acting under the War Powers Act of 1973. This is the first point.

For a commentary on Article 4 of the “Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949," see the International Committee of the Red Cross’ International Humanitarian Law section at

What I found there confirms what I was taught many years ago while in the Army. To be declared as a POW, certain criteria must be met, as with anything else in life. To be declared a POW if not a member of a regular, nationalistic army, one must:
  • Have a proper chain of command.
  • Wear a fixed distinctive sign that can be recognized at a distance.
  • Carry arms openly.
  • Conduct operations in accordance with the laws and customs of war.

Once upon a time, in an age long gone, any war waged was a total, all-out war or battle. There was no distinction between those fighting the war or battle, and those who were merely the innocent bystanders, if you will. The winner of the battle would often steal anything desirable, burn most structures, kill the men – young and old alike, and take the women and children as slaves.

War was redefined in the past 100 years with the advent of such things as planes, trains, automobiles, and submarines. One bomb, it was learned, could raze a city, and that was the start of a new generation of war. September 11, 2001 was not the dawning of a new type of war, rather the introduction of a type of warfare that’s plagued other nations for decades: guerrilla warfare, also called terrorism.

When the Geneva Convention of 1949 was enacted, it offered a means of distinguishing those who are combatants and those who are not. Combatants are people like soldiers. You know, they are the ones you can readily identify as someone looking to hunt down the bad guys. Non-combatants are those who do not carry weapons, are not wearing a distinctive military uniform, and so on.

When people engage enemy forces on a battlefield, they are combatants. Just because they are combatants, however, does not mean they are entitled to be classified as a Prisoner Of War under the Geneva Convention. This is the second point.

If we consider the people taken captive, whether we call them “battlefield detainees," “Yahooties," or “POWs," we need to consider other folks, as well. If the 158 people in Cuba are declared POWs, then does that mean those killed in the WTC attacks were killed in action, or, in military terms, KIA? Or how about those still missing: do they instantly get classified as MIA? But what about the hundreds, thousands of people in NYC at the time of the attacks: are they suddenly classified as having been in a war zone? Are they all eligible for “Hostile Fire and Imminent Danger"? Sure, I’m pushing the ball to the extreme, but it’s for a point.

“However I make my decision, these detainees will be well-treated," Bush said. “We are not going to call them prisoners of war in either case, and the reason why is al-Qaeda is not a known military. These are killers, these are terrorists."

By seeking to bastardize the definition of specific things, in this case, the classification of terrorists, into something they are not – soldiers, and ultimately, POWs – then we need to bastardize the classification for everything and everyone. What’s good for one is good for all, right? It’s only fair.

The detainees being held in Cuba are being treated humanely, as determined by several outside agencies, and even the harshest critic of all, in my view, that of a Muslim cleric. There is only one way anyone could argue they are being humiliated, if you want to call it humiliation. I find it humorous, in fact. Female guards have been assigned duties at Camp X-Ray in Guantanamo Bay, Cuba, which goes against the very thread of the Taliban regime.

Charlie, writing in the “What is a P.O.W." thread on the seattle.general newsgroup, argued with vpolitico that the 158 being detained in Cuba should not have the POW status conferred upon them.

“Many legitimate POWs are conscripts. These guys aren’t even nationals of the country where they were fighting," Charlie argued. “They could have avoided the whole mess by staying in their own countries and choosing to live peacefully. Instead, they went to the nastiest place in the world looking for trouble. Guess what??? They found it and now they can rot(sic) in a tropical swamp until they die of leprosy."

But, looking to the other side of the argument is where sofrae comes in on the
alt.religion.christian.episcopal newsgroup. Sofrae said that “One mans terrorist is a hero to another man and his country," which is fine and true, but I don’t see any cheering for the Taliban or al-Qaeda fighters anywhere. Does anyone else?

The ball is in your court. You make the decision – for yourself. Should the 158 being held in Cuba be considered prisoners of war, or should they be considered terrorists, as they are, in all reality? When you decide, share your thoughts and reasons with your elected federal officials, either by calling them or writing them a letter and sending it via snail mail or as an email. Contact information for your elected federal representative can be found on their individual websites. A listing can be found at U.S. House of Representatives, or U.S. Senate.

The man in charge, President Bush, may be contacted via email, as can the second-in-command, Vice President Cheney. If you wish to send a letter via snail mail to the
president or vice president, it is sent to:

Intended Recipient (President Bush or Vice President Cheney)
The White House
1600 Pennsylvania Ave NW
Washington, DC 20500-0004

If you decide to take the time to write your elected officials, let me know, as well. I’d like to see what your thoughts are on this matter. Send the comments to dave_jackson@newsguy.com.

 - by Dave Jackson

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