President Bush yesterday reversed an earlier position and decided that Taliban fighters in Afghanistan are legally protected by the Geneva Convention.
But the president stuck by his decision to withhold the same legal status from members of Osama bin Laden’s al Qaeda terrorist network, the White House announced.
Neither group will be declared prisoners of war, a designation that would have given them far greater legal protections by limiting the United States’ ability to put them on trial and to detain them indefinitely. The United States still can follow through with plans to try captives at military tribunals.
Mr. Bush’s decision ends a debate among his top national security advisers and represents a victory for Secretary of State Colin L. Powell. Mr. Powell urged the president to reconsider his Jan. 18 decision that the 1949 Geneva Convention did not cover either group.
Legal experts said yesterday’s decision was largely a symbolic gesture to international critics who demand POW status for the detainees. It may also prove to be a safeguard against future enemies citing U.S. policy in Afghanistan as an excuse to withhold protections established under the Geneva Convention to captured American troops.
The United States is holding 510 al Qaeda and Taliban fighters, 186 of which reside in a makeshift prison at the U.S. Naval Base in Guantanamo Bay, Cuba.
White House spokesman Ari Fleischer said that, although Washington did not recognize the now-ousted Taliban regime in Afghanistan, “the president determined that the Taliban members are covered under the treaty because Afghanistan is a party to the convention.”
In contrast, he said, “al Qaeda is an international terrorist group and cannot be considered a state party to the Geneva Convention.”
“What this announcement signifies is the president’s dedication to the importance of the Geneva Convention and to the principles that the Geneva Convention holds,” Mr. Fleischer said. “He arrived at a just, principled and practical solution to a difficult issue. The president did so because, as Americans, the way we treat people is a reflection of America’s values. The American people can take great pride in the way our military is treating these dangerous detainees.”
Robert K. Goldman, a law professor who specializes in human rights and the laws of war, said he agreed with the president’s decision to exclude al Qaeda. But he said the White House misinterpreted the convention by claiming the Taliban does not constitute a regular army and that captured fighters are thus not POWs.
“We are involved in an interstate armed conflict with these people,” said Mr. Goldman, who teaches at the American University School of Law. “Who were we shooting at? How did we know they were Taliban and not the Northern Alliance? I find this a very strained interpretation of [the Geneva Conventions] Article 4 with respect to the Taliban. I agree with respect to al Qaeda.”
Mr. Goldman said the non-POW status opens the door for “everybody else to say ‘our situation is unique, and we don’t have to apply the Geneva Convention either.’”
POW status is often equated with captured soldiers only having to provide their name, rank and serial number. But it means much more. Mr. Goldman said that by withholding POW designation, the administration may try the captives at military commissions, instead of courts-martial or civilian trials. He said the administration also can charge criminal offenses for hostile actions on the battlefield.
After Mr. Bush decided Jan. 18 that the Geneva Convention III on the Treatment of Prisoners of War (GPW) did not apply to members of the Taliban and al Qaeda, Mr. Powell urged the president to reconsider, according to an internal White House memo.
A Jan. 25 memo from White House Counsel Alberto Gonzales was circulated for comment to three Cabinet secretaries, Vice President Richard B. Cheney and other top officials. Mr. Gonzales said Mr. Powell wanted both captured Taliban and al Qaeda fighters officially designated as prisoners of war, pending a case-by-case hearing that could result in declassifying them as POWs.
After The Washington Times disclosed the memo on Jan. 26, State Department officials privately contended that Mr. Powell did not seek prisoner-of-war status for the detainees. The officials said he did, however, want the detainees covered by the Geneva Convention as a way to ensure protections for any future U.S. prisoners of war.
Mr. Gonzales argued against a policy reversal on the POW issue, writing that the United States would be forced to give each captive special amenities, such as pay and exercise equipment.
Earlier yesterday, Gen. Tommy Franks, who as head of U.S. Central Command is running the 4-month-old war in Afghanistan, told the Senate Armed Services Committee that the coalition is “halfway there” in meeting its objective.
“We will not reach a military operational end state in Afghanistan as long as there is credible threat from puddles or pockets of al Qaeda or residual hard-core Taliban,” he said.
Gen. Franks acknowledged that an unknown number of al Qaeda fighters have escaped Afghanistan, prompting Sen. Jim Bunning, Kentucky Republican, to say, “I’m not pleased, and I don’t think any Americans are pleased, that we haven’t done a better job on al Qaeda.”
Meanwhile, the director of the Defense Intelligence Agency has told Congress that killing or capturing bin Laden would sever the head of al Qaeda’s global network.
“If bin Ladin is killed or captured, there is no identified successor capable of rallying so many divergent nationalities, interests and groups to create the kind of cohesion he fostered amongst Sunni Islamic extremists around the world,” Vice Adm. Thomas Wilson told the Senate Intelligence Committee.
The assessment appears to contradict statements by Defense Secretary Donald H. Rumsfeld and Gen. Richard B. Myers, Joint Chiefs of Staff chairman, who have sought to downplay the importance of getting bin Laden.
Bill Gertz contributed to this report.