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"Why They're Outlaws, Not POWs"--A Commentary by Prof. Ruth Wedgwood

(This essay originally appeared in the February 4, 2002, edition of Time magazine. Follow the link at the bottom of the page to read a longer essay by Prof. Wedgwood that was published in the Financial Times of London.)

Why They're Outlaws, Not POWs

By Ruth Wedgwood, professor of law at YLS

Two centuries ago, the British used the island of St. Helena to intern their sworn enemy Napoleon Bonaparte. No one is volunteering the South Atlantic as a place of repose for the captured fighters of al-Qaeda and the Taliban. So, for the moment, the U.S. Navy base at Guantanamo Bay, Cuba, remains the "least worst" solution (as Donald Rumsfeld put it) for sequestering the 158 detainees and several hundred more expected to follow. U.S. military engineers have been working overtime to construct temporary housing that is safe, secure and hygienic. The quarters have been outfitted with hot showers, prayer mats, and cells with corrugated tin roofs. Medical care has been provided, along with monitoring visits from the International Red Cross. Yet our European allies have been fulminating with advice about how we should handle the dangerous business of housing these men. Our allies extravagantly insist that every semicolon of the Geneva Convention, a treaty among sovereign countries designed to protect honorable soldiers, also belongs to the self-appointed terrorists and saboteurs who attack guards and deliberately kill civilians. Rumsfeld considers the detainees to be "unlawful combatants." Late last week Colin Powell reportedly joined the debate, asking President Bush to assume the detainees to be lawful POWs unless a military board finds otherwise.

But here's why al-Qaeda and Taliban fighters flunk the plain requirements for status as Geneva POWs. Lawful combatants must: have a commander responsible for their conduct, wear a uniform or visible insignia, carry their weapons openly and generally conduct their operations "in accordance with the laws and customs of war."

These demands are long-standing and no surprise. They are an incentive system to protect soldiers and civilians from war's cruelties by demanding reciprocity in performance and forbidding a soldier to mimic a civilian. Neither al-Qaeda nor the Taliban can claim these qualifications. And the Taliban was not the recognized government of Afghanistan, nor a regular army. Its representative did not sit in Kabul's seat at the U.N.

In some respects, this is an academic debate. The distinction between POWs and "unlawful combatants" doesn't make any difference in the mode of interrogation or in choosing military trials, closing courtrooms or considering hearsay evidence. The Geneva Convention permits each of these, even for POWs. But pretending that the detainees are POWs would make it harder to run a safe camp for these sworn terrorists. The Geneva Convention says that POWs must be allowed to keep their mess kits, gas masks and metal helmets--for it is presumed they won't turn these into weapons. They are to be paid military salaries and "given the means" of preparing food. (One wonders if this includes knives.) They cannot be housed in a cell. "Scientific equipment" and "musical instruments" can be sent from home. Classifying al-Qaeda and senior Taliban as lawful combatants could also shield them from prosecution for their attacks on U.S. military targets. That is why soldiers who fail to obey the rules of war must be considered outlaws, vulnerable to the judgment of the courts.

Ruth Wedgwood is a professor of international law at Yale and Johns Hopkins