The Treatment and Interrogation of Prisoners of War and Detainees

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I. THE TREATMENT AND INTERROGATION OF PRISONERS OF WAR AND DETAINEES: CURRENT ISSUES (1)

The treatment and interrogation of Prisoners of War (POW) and detainees remains one of the most topical and controversial matters confronting the United States government. In this Article, I will discuss the principal legal issues associated with this subject. I will attempt to present, as objectively as possible, the different views associated with this topic, as there are certainly diverging opinions. However, my approach in discussing this particular subject is founded on a strong belief that the United States has an obligation to comply with the rule of law: domestic rule of law, international law, and, specifically, the Law of Armed Conflict, itself an integral part of international law. I do not view such compliance as a matter of convenience or a matter of choice. I consider U.S. compliance with the Law of Armed Conflict a strategic imperative, and it is on this basis that I approach the subject at hand.

With that foundation, let us look at the legal issues associated with the interrogation and treatment of POW and detainees. It is important to draw a distinction between these two categories of individuals. We are, in fact, dealing with POW on the one hand, and the law, rules, and regulations that apply to such personnel, and with detainees on the other, and the law, rules, and regulations that apply to these individuals. Status determination is extremely important when one makes decisions with respect to treatment and interrogation matters.

This Article will focus on the most recent military operations involving U.S. and Coalition forces. I will look first at the status of the individuals taken into captivity during Operation Enduring Freedom in Afghanistan, and then examine the law, rules, and regulations applicable to those personnel held captive as the result of Operation Iraqi Freedom.

Let us begin by focusing on the Afghan situation. From day one in the Afghan conflict, which commenced on October 7, 2001, U.S. and Coalition forces took into custody an exceptionally large number of both Al Qaeda and Taliban captives. (2) Almost immediately, the issues became: What is the status of these individuals? Do we afford them POW status? Are they entitled to the rights and privileges of the Third Geneva Convention Relative to the Treatment of Prisoners of War, or do they fall into another category of personnel, that is, detainees? You may recall that, although one will not find such a decision reflected in a Presidential Directive or in Department of Defense (DOD) guidance, the initial determination on the part of this Administration was that it would neither apply the Geneva Conventions to this conflict in general, nor the Third Geneva Convention dealing with POW to Al Qaeda or Taliban captives in particular.

This initial decision on the part of the Administration was driven almost exclusively by the first of three Department of Justice (DOJ) opinions. This particular opinion was issued on January 22, 2002 and was aptly entitled, "Application of Treaties and Laws to [A]l Qaeda and Taliban Detainees." (3) DOJ's analysis with respect to the status of Al Qaeda personnel proceeded along these lines: Mr. President, Al Qaeda, as an organization, is a non-state entity, a non-state actor

whose mission and purpose is international violence. As a non-state actor, it cannot sign international conventions, and because it cannot sign such conventions, it can be afforded no rights and privileges under these conventions, specifically the Geneva Conventions, and, even more specifically, the Third Geneva Convention dealing with POW. Second, Mr. President, Al Qaeda members are private citizens who have engaged in belligerent acts against a sovereign state--i.e., the United States--and, as such, they are unlawful combatants or unprivileged belligerents. As a result of this fact, these individuals exist beyond the realm of international law. …