Detainees or Prisoners of War?

Mackubin T. Owens

January 1, 2002

Has President Bush’s decision to launch a "war against terrorism" in response to September 11 now hoist the United States on its own petard? That would seem to be the case as international organizations and even officials of allied countries such as Great Britain have intensified criticism of the United States concerning its treatment of captured al Qaeda and Taliban fighters and called upon the US government to designate them "prisoners of war" (POWs) rather than as "detainees."

Many Americans are inclined to dismiss charges that the US has mistreated the detainees as the hypocritical posturing of those who have to defend only their own smugness and sense of moral superiority. After all, the "international norms" they invoke exist largely because the United States, largely on its own, provides the public good of international security, making possible the existence of a liberal international community that adheres to such norms. They rightly wonder where these paragons of morality were when American POWs were being viciously mistreated in earlier conflicts by their North Korean and North Vietnamese communist captors.

But as powerful as this inclination might be, it must not cause us to ignore the norms of international behavior. As the guarantor of a liberal international community and international law, the United States should be expected to adhere to a higher standard than the Taliban when it comes to the treatment of captured enemy fighters. But in criticizing the United States, many of the detractors fail to make an important distinction between legitimate soldiers who are indeed entitled to POW status and other fighters who are not.

Let us stipulate at the outset that all those detained by the United States are entitled to humane treatment, their monstrous crimes notwithstanding. But this treatment must also take into account the nature of the detainees. These are extremely dangerous individuals who, even in captivity, continue to threaten Americans. As Gen. Richard B. Myers, Chairman of the Joint Chiefs of Staff remarked, "remember the situation in Mazar-e Sharif, where the start of the [prison] rebellion [which resulted in the death of CIA operative Johnny Spann] was one of [the captives] that had explosives and killed himself. These are people that would gnaw hydraulic lines in the back of a C-17 [transport aircraft] to bring it down." Common sense concerns about security would seem to make it prudent to transport such fanatics shackled and even hooded.

The charges that the detainees’ living conditions at Camp X-Ray in Guantanamo, Cuba are inhumane and that they are being mistreated are absurd. Indeed the United States is going out of its way to ensure that these detainees, despite being fanatical and homicidal members of a worldwide conspiracy to kill Americans, are not only taken care of physically, but also not humiliated or even embarrassed. But there are limits. As the clearly exasperated commander of Camp X-Ray, Marine Brigadier General Mike Lehnert remarked to reporters, the detainees do not get to choose the color of the jump suits they are wearing in detention.

Criticism of the US treatment of the detainees is related to the far more important issue of the status of those being held by the United States. The US maintains that they are "unlawful" or "unprivileged" combatants who "do not have any rights under the Geneva Conventions," that series of agreements that governs the status of captives in war. The US position is that while we are, for the most part, adhering to the Geneva Conventions, the status of the detainees does not obligate us to do so.

This designation has been attacked by individuals and organizations, including Mary Robinson, United Nations High Commissioner for Human Rights, Amnesty International, and the International Red Cross. Such critics insist that the detainees are legally POWs, a designation that would trigger certain rights and protections under the Geneva Conventions.

For instance, a POW is not required to respond to interrogation beyond providing his name, rank, and serial or service number. He must be repatriated at the end of hostilities, unless he is charged with war crimes, in which case he must tried by the same court and under the same rules of evidence and procedure as members of the detaining power’s armed forces would be. In other words, a POW would have to be tried by courts-martial, not by military tribunals of the sort that have been authorized by the president.

Since President Bush has invoked a "war against terrorism," why shouldn’t the captured fighters be accorded POW status? Many of the reasons advanced to deny them that status simply do not hold water. The claim that there was no congressional declaration of war is true, but it is arguable that congressional passage of the anti-terrorism bill constituted a contingent declaration of war. In any event, as Justice Grier wrote in the Prize Cases decision (1863), a war is defined "by its accidents—the number, power and organization of the persons who originate and carry it out." No one with any sense can deny that the United States was at war as of 8:48 AM on Tuesday, September 11, 2001. The contention that the fighters did not wear uniforms is also true in the formal sense of western armies, but they wore pretty much the same garb as our Afghan allies did.

The real reason the detainees are not entitled to POW status is to be found in a distinction first made by the Romans and subsequently incorporated into international law by way of medieval European jurisprudence. As the eminent military historian, Sir Michael Howard, wrote in the October 2, 2001 edition of The Times of London, the Romans distinguished between bellum, war against legitimus hostis, a legitimate enemy, and guerra, war against latrunculi—pirates, robbers, brigands, and outlaws—"the common enemies of mankind."

The former, bellum, became the standard for interstate conflict, and it is here that the Geneva Conventions were meant to apply. They do not apply to the latter, guerra—indeed, punishment for latrunculi traditionally has been summary execution.

While not employing the term, many legal experts agree that al Qaeda fighters are latrunculi—hardly distinguishable by their actions from pirates and the like. As Robert Kogod Goldman, an American University law professor who has worked with human rights groups told the Washington Times, "I think under any standard, the captured al Qaeda fighters simply do not meet the minimum standards set out to be considered prisoners of war."

At a recent conference in Europe, Marc Cogen, a professor of international law at Ghent University argued that "no ’terrorist organization’ thus far has been deemed a combatant under the laws of armed conflict." Thus al Qaeda members "can be punished for all hostile acts, including the killing of soldiers, because they have no right to participate directly in hostilities."

The status of the Taliban is more problematic. Despite the fact that the United States did not recognize the Taliban as the legitimate government of Afghanistan, critics argue that the Taliban’s effective control of Afghanistan, its military structure and functioning government rendered it a de facto state, the troops of which should be accorded POW status. They point out that a legal ruling required the United States to accord Panamanian strongman Manuel Noriega POW status despite the fact that it did not recognize his government.

But a state that harbors latrunculi would seem to forfeit its own status as a legitimate state. The close association of al Qaeda and the Taliban, especially at the higher levels, vindicates the legal position of the United States in treating both al Qaeda and Taliban fighters as detainees rather than POWs.

Under the leadership of President Bush, the United States has eschewed vengeance against the perpetrators of September 11. Instead, it has pursued a patient, discriminating strategy designed to destroy the al Qaeda network while minimizing collateral damage. The fight will be a long one, and it will help to have the rest of the civilized world on our side. But the civilized world needs to distinguish between legitimate combatants on the one hand and latrunculi on the other. This distinction makes it clear that the United States has nothing to apologize for when it comes to its treatment of the detainees in its custody.

Mackubin Thomas Owens is professor of strategy and force planning at the Naval War College in Newport, RI, and an adjunct fellow of the Ashbrook Center. The views expressed here are his own and do not reflect the position of the War College, Navy Department, or Department of Defense.