U.S. Will Apply Geneva Rules to Taliban Fighters

President Bush declared Thursday that the United States will apply the rules of the Geneva Conventions to Taliban soldiers captured during the war in Afghanistan but not afford the same recognition to members of the Al Qaeda terrorist network.

The White House also said it will treat each group humanely but not classify either as prisoners of war, a move that could permit U.S. officials to interrogate the captives indefinitely and not have to automatically repatriate them after the war has ended.

The president reached his decision after weeks of criticism about how the detainees were being handled and whether the U.S. was trying to coerce them into betraying their homelands and make them stand trial in U.S. military tribunals.

The announcement also appears to settle a rift in the administration over concerns raised by Secretary of State Colin L. Powell that the detainees fall under the protections of the Geneva Conventions, just as any American soldier would expect if he was captured abroad.

But the administration argues that the war on terrorism is unprecedented and does not fit neatly into the parameters of the Geneva Conventions. As such, the government says, the detainees don’t meet the conventions’ definition of a POW.

The decision drew quick fire from many human rights groups that said it appeared the Bush White House was trying to have it both ways by applying some rules of the Geneva Conventions and ignoring others.

“Believing in the Geneva Convention principles and actually complying with them are two different things,” said Elisa Massimino, Washington director of the Lawyers Committee on Human Rights. “There is no in-between.”

Alistair Hodgett, a spokesman at Amnesty International, called it a “willful misinterpretation” of the Geneva Conventions and said that there should be no “arrogant policy of pick-and-choose with regard to the laws of war.”

The announcement was made at the White House by spokesman Ari Fleischer.

Fleischer said the administration had determined that soldiers for the Taliban were fighting for the government then in power in Afghanistan. The administration noted that Afghanistan was a country that in 1949 joined the U.S. and other nations in backing the Geneva Convention for the humane treatment of war captives and that therefore the Gevena Convention should apply to the Taliban captives.

In contrast, the Bush administration said, the Al Qaeda fighters are viewed as rogue terrorists who are not a party to the Geneva agreement and the rules of the conventions should not apply to them.

Putting the Taliban fighters under the protection of the Geneva Conventions appeared to be a show of good faith by the administration and a signal that it would expect the same designation of any captured American soldiers.

Nevertheless, Fleischer said, both the Taliban and Al Qaeda captives will be treated humanely, as prescribed by the conventions, but neither group will be considered prisoners of war. If they were deemed POWs, then the U.S. would not be allowed to question them beyond the basics of their name, rank and serial number.

Attempting to explain the apparent inconsistencies in the president’s decision, several administration officials stressed that the war on terrorism is not like wars of the past.

Defense Secretary Donald H. Rumsfeld said new ground is being broken every day in how this war is prosecuted and that Thursday’s decision over detainees “could conceivably be considered a precedent for the future.”

Fleischer said that in the current conflict, the old blanket provisions from past wars do not always translate.

“In this war,” said Fleischer, “global terrorists transcend national boundaries and internationally target the innocent.”

He added that the 50-year-old Geneva Conventions do “not cover every situation in which people may be captured or detained by military forces, as we see in Afghanistan today.”

Decision Codifies Current Treatment

In part, the decision codifies the way the U.S. already has been treating the detainees. Until now, U.S. officials had no formal policy except to assert that all of the captives were treated humanely but that they were considered unlawful combatants, not prisoners of war, and were therefore subject to interviews.

Interrogations are vitally important to U.S. military and law enforcement officials as they scramble to determine not only which detainees are responsible for war crimes but also, more significantly, whether any of the captives can warn them of future terrorist strikes.

Eugene R. Fidell, president of the National Institute of Military Justice, said that the key element of the administration’s announcement is that interrogations can continue.

While forced confessions are not allowed, Fidell said there are other ways of getting information from captives, especially when they are held for long periods of time.

“You cannot torture, coerce or starve them,” Fidell said. “But you can offer some incentives. You can tell them they can have two slices of layer cake if they talk. You can tell them they can take two showers a week.”

Fidell and other experts did not think any legal challenges to the Bush decision would prevail but that the U.S. would be smart to allow the International Committee of the Red Cross to make periodic inspections of the detainees. The Red Cross has visited the prison and will continue to do so, the administration said.

158 Detainees at Guantanamo

Mark Tushnet, a professor at the Georgetown University Law Center, said he thought the decision would hold up legally. A detainee convicted in a military tribunal could later appeal the verdict on the ground that he should have been treated as a prisoner of war instead of an unlawful combatant, but Tushnet said a successful appeal is very unlikely.

“In the real world,” he said, “that is not going to happen.”

There are 158 detainees at the U.S. naval base at Guantanamo Bay, Cuba, who are being screened and interrogated, and they are being housed in temporary, single outdoor cells at what is called Camp X-Ray. Each is being questioned individually, and any decisions to prosecute them or send them home will be made on a case-by-case basis.

On Thursday, another group of about 30 captives was flown in from Afghanistan on military aircraft, the first new contingent of arrested individuals to arrive there in several weeks.

“There are going to be no changes in the way they are being treated at Camp X-Ray,” said Navy Lt. Cmdr. Ed Buclatin. “But as far as sorting them out, as far as Taliban or Al Qaeda, we don’t know how that’s going to be done yet.”

A White House “fact sheet” released Thursday said that all the detainees are getting certain amenities guaranteed to POWs, including three meals a day that meet Muslim dietary laws, clothing and shoes, showers, foam sleeping pads and blankets, medical care and mail privileges.

However the detainees will not receive certain other privileges afforded to POWs. For instance, they will not receive a stipend, have access to a canteen to buy tobacco or extra food and soap, be allowed to hold personal financial accounts or receive “scientific equipment, musical instruments or sports outfits.”