Though disapproval at home was muted, the Bush administration's defiant refusal to grant prisoner-of-war (POW) status to Afghan battlefield captives set off a storm of criticism overseas in January. Beset by foreign media and officials, human rights and international law organizations, the administration opened a media counter-offensive on January 27.
"They are not POWs. They will not be determined to be POWs," Defense Secretary Donald Rumsfeld told reporters traveling with him to the U.S. military base at Guantánamo Bay, Cuba, where the U.S. is holding captured Taliban and Al Qaeda combatants (Associated Press, 1/27/02). Rumsfeld led the White House and Pentagon public relations campaign labeling the detainees as "unlawful combatants," and attempting to convince the world that, while unworthy of the protections guaranteed POWs under international law, they were nevertheless being treated humanely.
Despite his many conflicting statements on the status of the detainees, Rumsfeld--who has gained an adoring following among many journalists since the beginning of the war (see sidebar)--was seldom pressed on the Pentagon's arbitrary designation of the captives as "unlawful combatants."
If the captives were designated POWs, the administration worried, they would be entitled to the protections of the Geneva Conventions--including the right to refuse to answer most questions, legal counsel of their own choosing and, unless they were charged with crimes, repatriation after the end of hostilities. The U.S. would be required to house POWs in quarters comparable to those of U.S. soldiers and to grant them due process in civilian courts or military courts martial, sparing them from the controversial White House-proposed military tribunals.
The "unlawful combatants" tag is not a category from international law, but a phrase used in a controversial 1942 Supreme Court ruling that denied regular criminal trials to German saboteurs. (The saboteurs were given secret military trials in part because FBI director J. Edgar Hoover wanted to hide FBI bungling in the case--Charlotte Observer, 12/9/01.) The effect of treating the Afghan detainees as neither POWs nor criminals is to remove the captives from any established justice system, under either international or U.S. constitutional law--particularly when they are held at Guantánamo, where a federal appeals court has ruled that non-U.S. citizens have no "cognizable statutory or constitutional rights" (Broward Daily Business Review, 1/31/01).
Critics say the administration has no right to unilaterally deprive detainees of POW status--that many, if not all, likely qualify under Article 4 of the Third Geneva Convention, which defines POWs as "members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces." If a prisoner's status is in question, he or she is entitled to a court hearing, according to Article 5 of the Third Geneva Convention: "Should any doubt arise... such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."
Joining Rumsfeld's spin effort, Vice President Dick Cheney (Fox News Sunday) and Bush chief of staff Andrew Card (Meet The Press, This Week) made the rounds of Sunday morning chat shows on January 27. All three shows asked about the status of the Guantánamo captives, but none cited the international laws that grant prisoners POW status until a court determines otherwise. When Meet the Press host Tim Russert asked Card, "Are they protected by the Geneva Convention?" the chief of staff repeated the line that the prisoners were "illegal combatants," not POWs. Russert's follow-up: asking Card to handicap the upcoming Steelers/Patriots game.
'America-bashers in the European press'
International news outlets often included the opinions of critics. Prominent authorities such as Mary Robinson, the U.N. high commissioner for human rights, and Darcy Christen of the International Committee of the Red Cross were widely quoted criticizing U.S. policy toward the captives (e.g., Deutsche Presse-Agentur, 1/16/02; CBC-TV, 1/16/02). (The British magazine New Statesman, in a January 28 article chiding the U.S. for showing little regard for non-U.S. opinion, zapped CNN for running a caption identifying Robinson--the president of Ireland prior to her U.N. post--as a "British Civil Rights Worker.")
Early on, London's conservative Financial Times (1/15/02) pointed out that prisoner status is not up to U.S. officials, editorializing: "The Geneva convention stipulates that a detainee should be treated as a prisoner of war until the courts or a competent tribunal determine otherwise."
The same day, in a column in the left-leaning Independent, international law expert Geoffrey Robertson wrote: "Duty now requires us to remind our U.S. allies that the Conventions lay down that anyone captured in the course of such a conflict must be presumed to have POW status until a competent court--not Donald Rumsfeld--declares otherwise."
Mainstream U.S. media featured less debate of the detainee issue, and rarely quoted international legal documents or challenged the administration's unilateral designation of the detainees as "unlawful combatants." When a Washington Post editorial (1/25/02) defended the administration's handling of detainees, it attributed criticism of the Guantánamo policy to "America-bashers in the European press and human rights community." (The editorial inaccurately claimed that Rumsfeld had agreed to status hearings for the captives, a major point of contention.)
Network TV reporters generally accepted the administration's designation without question. For example, CBS Pentagon correspondent David Martin reported on January 23 that the detainees "are classified as unlawful combatants, which is technically different from a prisoner of war entitled to all of the rights of the Geneva Convention." In 20 network news segments found in the Nexis database mentioning "unlawful combatants," only one ABC World News Tonight Saturday segment (1/26/02) mentioned the Geneva Conventions' guarantee of a hearing for prisoners whose status was in doubt.
An Associated Press article about the captives' treatment (1/22/02) similarly affirmed their status as "unlawful combatants" without challenge. Rather than quoting an international law expert on the status of the prisoners, the piece cited talkshow host and former presidential child Michael Reagan: "These people are being treated very well with bagels and cream cheese and the Koran and prayers in the afternoon.... They are being treated a lot better that they treated our people on September 11."
Prison camps = camping trips
Clearly, treating wrongdoers the way they treated their victims is an utterly uncivilized idea; during World War II, for example, Nazi concentration camps were not used as the standard for how German prisoners of war were treated by the U.S. And it's not clear yet that any of the prisoners are directly connected to the World Trade Center attacks; many are simply soldiers who fought for a government that refused to hand over suspects demanded by the U.S.
But the "they're getting better than they deserve" theme was repeated on countless talk radio and news chat shows. "The controversy over the Al-Qaeda prisoners in Guantánamo is a joke," declared Fox News Channel's Bill O'Reilly (1/31/02). "We should be squeezing these guys hard, getting all the information we can. Their rights be damned. These are people who would have launched a nuclear holocaust if they could have."
On MSNBC's Hardball (1/17/02), host Christopher Matthews grilled a guest from Human Rights Watch: "What I find hard to believe is, you know, back when I was a kid, I used to go down there and sleep out in places like the Virgin Islands overnight, and I loved it. I slept in tents. I thought it was great. And you're making it sound like harsh conditions." Substitute hosting CNN Talkback Live (1/21/02), conservative radio host Neil Boortz seemed to have the same writer: "Tourists pay big money to go to that area of the world and live in those conditions in tents like that, so it's not exactly torture."
There were few bright spots in mainstream U.S. coverage. Reports by William Glaberson in the New York Times (12/26/01) and Charles M. Sennott in the Boston Globe (1/23/02) stood out for their inclusion of critical sources and relevant legal language. A growing number of U.S. dailies have run critical editorials as well (e.g. Boston Globe, 1/29/02; New York Times, 1/29/02; Atlanta Journal-Constitution, 1/30/02). But the bulk of mainstream U.S. journalists have failed to stake out a path independent of the Pentagon, and have neglected to pose the kinds of questions that are routinely asked outside U.S. borders.
Doublespeak on Guantánamo
On February 7, as Extra! went to press, White House press Secretary Ari Fleischer made this confusing and nonsensical announcement: "President Bush today has decided that the Geneva Convention will apply to the Taliban detainees, but not the Al-Qaeda international terrorists." None of captives would be granted POW status, said the White House.
The policy statement is nonsensical on its face because, under Geneva, prisoners' status is not up to the White House; each prisoner is guaranteed Geneva protections until a status hearing determines otherwise.
So what had changed? Nothing, says international law expert Michael Ratner. "It's a great step for this country to say international law applies," Ratner told Extra!. "But then they don't apply it! It's doublespeak, it's meaningless."
If the announcement was meant to confuse journalists at home and stifle growing criticism abroad, it succeeded on the first count. It received prominent, if muddled, coverage by many U.S. media outlets, which presented it as a significant change in policy (CBS Evening News, 2/7/02; New York Times, 2/8/02).
But it didn't do much to quell international skepticism, which was summed up by Kim Gordon Bates of the International Committee of the Red Cross, who said the White House policy still fell short of international law requirements: "The ICRC stands by its position that people in a situation of international conflict are considered to be prisoners of war unless a competent tribunal decides otherwise."