- The Washington Times - Wednesday, January 30, 2002

Who is a prisoner of war? Rowan Scarborough's disclosure in this newspaper of dissension in the ranks of the Bush administration on the status of the detainees at Camp X-Ray demonstrates just how difficult answering this question may be.

Secretary of State Colin Powell wants to give prisoner-of-war status to the al Qaeda and Taliban prisoners, which puts him at odds with both the president and Defense Secretary Donald Rumsfeld. There are good reasons to treat the Geneva Convention on prisoners of war as a matter of great seriousness, not the least being that we have troops around the world, and we want them to be accorded its protections. Mr. Powell, one of the few old soldiers among the president's men, brings an important point of view to the argument. Nevertheless, his concerns do not persuade us.

Were Mr. Powell's position adopted, the killers of CIA officer Johnny "Mike" Spann if in fact those killers are among those now in custody at Guantanamo Bay could get immunity from prosecution for that murder and perhaps others. Under the rules of war, such as they are, a prisoner of war may try to escape and may use force in the attempt. He cannot be charged with crimes that are part of the exercise of his otherwise lawful duty. American soldiers have an affirmative duty to escape if they can. A terrorist is a criminal, and has no right to use force. If a terrorist is regarded as a soldier, he gets a soldier's immunities from prosecution. The revolt at Mazar-e-Sharif, in which Mr. Spann was killed, was either a lawful act of war by POWs, or another murder by terrorists. By maintaining the prisoners as detainees, and not as POWs, the United States retains the right to try them for Mr. Spann's murder or any other terrorist act that they may have committed. There is every reason not to declare them POWs until we determine just who these people are and of what acts they may be guilty. It is important that the distinctions be established by a case-by-case procedure.

The second issue is precedent. If the United States makes a blanket declaration that these terrorists are POWs, the United States will do what no nation has done before declare that terrorists are legitimate warriors. This legitimacy is what every terrorist, from the Irish Republican Army to al Qaeda, has always sought. It is the mistake that the British, the Israelis and many others have so far resisted making. Soldiers, under the Geneva Convention, are distinguished from "unlawful combatants" by several criteria, one of which is that they do not intentionally target and kill innocents. Terrorists, by definition, intentionally target the innocent. Terrorists fail several other tests.

Mr. Rumsfeld should put in motion the long-delayed process of the military tribunals, now that the egregious early provisions establishing the tribunals have been abandoned, and give them the task, as described in the Geneva Convention, of determining the POW vs. terrorist status of each of the prisoners. Once that is done, prosecution and punishment or detention and eventual release can follow.

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