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Guantanamo POW Status Is Crucial To U.S.

OPINION by Professor Madeline Morris with Allison Hester-Haddad
June 10, 2007

GUANTANAMO BAY, CUBA - Prisoner of war (POW) status matters, as every United States service member knows. Under the international law of war, any "lawful combatant" captured by enemy forces is entitled to POW status.

And, of critical importance, any member of the regular armed forces of a state (such as the US Army, Navy, Air Force, or Marine Corp) is by definition a lawful combatant --- automatically and without qualification.

This bedrock principle of the law of war has long been recognized, and staunchly supported, by the United States.

That is why the U.S. Military Commissions in Guantanamo, established to prosecute war crimes committed in the "war on terror," are authorized to prosecute only "unlawful combatants."

Those military commissions, at the very beginning of arraignment proceedings for the first two defendants to come before them, dismissed the cases for lack of jurisdiction.

The jurisdiction of military commission (as opposed to courts martial), they held, is limited to trial of unlawful combatants. And, while an administrative "Combatant Status Review Tribunal" had found that the defendants were "enemy combatants," there had been no finding, that the defendants before them had been unlawful combatants.

The commission judges were right to be vigilant in upholding the safeguards that protect the rights of bona fide POW's.

The judges said, in effect, that, before this commission will prosecute a prisoner --- depriving him of court martial proceedings and certain combatant immunities that he would be entitled to if he were classified as a POW --- this commission will require a valid and articulated determination that the prisoner is an unlawful combatant and not, in fact, entitled to POW treatment.

It is of great importance that the judges took that position. The United States has learned by bitter experience the consequences of blurring the lines between POW's and unlawful combatants.

The law of war is utterly clear that members of regular armed forces of a state are POW's if captured --- no questions, no exceptions.

The North Vietnamese, in violation of that foundational principle, deemed all US service members to be unlawful combatants and, accordingly, denied POW status to any American service member whom they captured.

They went on then to "convict" American service members of war crimes without the procedures, needless to say, to which they would have been entitled as POW's. This contributed to the ordeal of the US service members held prisoner by the North Vietnamese.

Shortly after the close of the Vietnam War, the US was instrumental in identifying a mechanism to prevent a recurrence of the unlawful categorical denial of POW status to members of the regular armed forces of the United States, and the arbitrarily designated war crime "convictions" that US service members had suffered in North Vietnam.

That mechanism is delineated in Article 45, paragraph 2, of the 1977 Protocol I to the 1949 Geneva Conventions, which provides:

If a person who has fallen into the power of an adverse Party is not held as a prisoner of war and is to be tried by that Party for an offence arising out of the hostilities, he shall have the right to assert his entitlement to prisoner-of-war status before a judicial tribunal and to have that question adjudicated.

Whenever possible under the applicable procedure, this adjudication shall occur before the trial for the offence.

The US has stated explicitly and repeatedly that the US views the right to an Article 45 proceeding to be a binding part of the international law of war.

An Article 45 adjudication is a judicial proceeding separate and apart from any administrative determination of combatant status.

The motivating principle is that, if a prisoner is to be subject to a criminal prosecution with fewer protections than he would be entitled to if he were classified as a POW, then the status determination --- POW or unlawful combatant --- takes on critical proportions and must, consequently, be determined in a formal judicial proceeding.

The prisoner, therefore, must be afforded the opportunity to assert his right to POW status before a judicial tribunal before he may be tried by the detaining power for a criminal offense.

The current U.S. administration and, according to some interpretations, Congress in the Military Commissions Act of 2006, nevertheless defines Taliban military members as unlawful combatants, maintains that, as a result of that status, the Taliban members whom the US has captured are not entitled to POW status, and are, therefore, susceptible to trial by military commissions.

Moreover, no provision has been made for the Article 45 adjudication of POW status.

The two detainees cases that were dismissed on June 4 were dismissed for lack of jurisdiction because there had not been the necessary prior finding that the defendants were unlawful enemy combatants.

A Combatant Status Review Tribunal (CSRT) had found that they were "enemy combatants" --- but had not found (and could not have found under the CSRT regulations) that they were unlawful.

A CSRT is not a judicial tribunal but, rather, a body established to conduct administrative proceedings to determine whether a given prisoner is an enemy combatant and, therefore, may be detained.

A CSRT is not and could not be authorized to conduct the judicial proceedings required by Article 45. Nor would adjudication before a military commission itself comply with the terms of Article 45.

It would have been easy for the judges to take the administration's determination of these detainees' POW status as the final word or to grant the Government's motion to have the military commissions decide the issue that day, but they did not.

We are fortunate that they did not do that. To do so would have damaged grossly the Article 45 safeguard that protect our own service men and woman fighting now and, if not destroyed at our own hand, will continue to protect them in the future.

The U.S. government, in its current efforts to combat terrorism, is in danger of destroying the very protections for POWs that is has worked so hard and so long to establish. At the time of the US armed conflict with Afghanistan, the Taliban was the effective government of that country.

The Taliban armed forces at that time, therefore, were the "regular armed forces" of Afghanistan.

The U.S. has, since World War II, acknowledged that the regular armed forces of a country are entitled to POW status even if the government then in power in their country is not recognized by the detaining state.

Even while maintaining that the members of a state's regular armed forces are POWs if captured, we have declined to apply that rule in the case of the Taliban.

By doing that, we create a dangerous precedent suggesting that enemy forces, having taken prisoner a member of the regular armed forces of the United States, can decide whether it suits them to treat that person as a POW.

If the detaining state can decide, at its pleasure, when the rule giving all regular armed forces POW status does and does not apply, then there is no rule and there is no meaningful protection of the POW entitlements of our own U.S. service members.

Is the benefit of this practice worth its price? It would be an early victory for those who would wish us ill to relinquish the POW protections of US service members.

In doing that, we would cede critically important territory right at the outset.


PROFESSOR MADELINE MORRIS currently serves as Advisor to the Chief Defense Counsel for the detainees at Guantanamo in their proceedings before US military commissions, United States Department of Defense.

Professor Morris has served as Senior Legal Counsel, Office of the Prosecutor, Special Court for Sierra Leone.

In addition, Professor Morris has provided consultation to the U.S. State Department, Office of War Crimes Issues.

She previously has served as Advisor on Justice to the President of Rwanda, as Special Consultant to the Secretary of the U.S. Army, as Co-convenor of the Inter-African Cooperation on Truth and Justice program, and as Consultant and Adjunct Faculty Member of the U.S. Naval Justice School.

Professor Morris teaches public international law, international human rights, and international criminal law and has published widely in those fields.

ALLISON HESTER-HADDAD is currently a third year law student at Duke University.

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OPINION By Professor Madeline Morris:

Ms. Morris (B.A., J.D., Yale University) is a Professor of Law at Duke University.

She currently serves as Advisor to the Chief Defense Counsel for the detainees at Guantanamo in their proceedings before US military commissions, United States Department of Defense.

She previously has served as Special Consultant to the Secretary of the U.S. Army and as Consultant and Adjunct Faculty Member of the U.S. Naval Justice School.