Published January 13, 2015
President Bush said Monday the 158 captives held by the United States in Cuba are killers and terrorists and not prisoners of war — but are being well treated.
Bush said he was trying to decide whether the Geneva Conventions, the international rules governing treatment of POWs, cover the suspected terrorists. He heard arguments from his National Security Council on Monday but made no determination and offered no timetable.
"I'll listen to all the legalisms and announce my decision when I make it," he told reporters in a Rose Garden appearance with Afghan interim leader Hamid Karzai.
At issue is whether the 52-year-old conventions apply to the war in Afghanistan and whether its safeguards apply to those captured. The conventions require that POWs be humanely treated. They also say prisoners of war are not obliged to give captors more information than name, rank, date of birth and serial number. That would restrict the United States' ability to interrogate the prisoners about terrorism.
"We are adhering to the spirit of the Geneva Convention," Bush said. "They're being well treated."
Still, Bush said, those being held in Cuba are not prisoners of war. Ambiguity about whether a captive should be considered a prisoner of war requires a special three-person military tribunal to decide, the Geneva Conventions say. There is no ambiguity here, the administration says.
The POW designation would confer an array of rights on the terror suspects.
Under the Geneva Conventions, it would entitle them to trials under the same procedures as U.S. soldiers -- not through the military tribunals the administration has authorized. The conventions also require captors to pay prisoners advances on their military salaries, and make soap and tobacco available.
In April 1999, the United States government insisted that three U.S. Army soldiers captured by Yugoslavia near the Macedonian-Yugoslav border were prisoners of war and were covered by the Geneva Conventions. The three were later released unharmed.
"We are not going to call them prisoners of war," said Bush, who repeatedly called them "prisoners" and then caught himself to refer to them as "detainees."
"And the reason why is al-Qaida is not a known military," Bush said. "These are killers, these are terrorists, they know no countries."
The president decided earlier this month that the accusations of terrorism against the prisoners disqualified them from POW status. That prompted an outcry from German, Dutch, British and European Union officials, as well as the International Committee of the Red Cross and human rights groups.
"There's an issue as to exactly what their legal status ought to be," Vice President Dick Cheney said on CNN. "Whether they ought to be treated as unlawful combatants under the Geneva Convention, or whether the convention was written for other types of conflicts and doesn't apply here, and that's an interesting debate among the lawyers."
Bush used a similar phrase — "illegal combatants" — for the suspected terrorists. Neither phrase appears in the Geneva Conventions, but legal experts said it generally means fighters outside the Geneva Conventions who do not abide by the laws of war.
Monday, the National Security Council grappled with the issue. One camp in the White House argued that because Afghanistan was a "failed state," and the Taliban were not a legitimate government in the view of some officials, the conventions did not cover the U.S.-led war there.
"That's lame," said Gary Solis, a former professor of war law at the United States Military Academy. Afghanistan signed the conventions in 1949, so the provisions apply today, he said.
But Solis said the administration was correct in not conferring POW status on the detainees. The fighters don't meet other requirements, he said -- soldiers commanded by a person responsible for subordinates; a fixed, distinctive sign recognizable at a distance; carrying arms openly; obeying the laws of war.
"I believe we are complying with the law of war, but very inartfully," Solis said.
He noted the sedation of the prisoners and the Defense Department's release of photographs of them in manacles, kneeling and wearing goggles and ear muffs. The images triggered protests in Europe and elsewhere about the conditions at Guantanamo Bay.
"We lost a certain measure of credibility when we were seen to do this," Solis said, adding those actions were not illegal.