Gitmo post-mortem: yes, they are POWs

I was walking in Sicily a couple of years ago when I came across a one-word piece of black-lettered graffiti: "GUANTANAMO."

Our actions at that U.S. military prison have cost us a lot, more than the Bush Administration seems to understand, and not just overseas. I never thought I would live in a country whose government would embrace the use of torture. (Anyone who still thinks we haven’t committed torture needs to explain the deaths of more than a score of detainees over the last five years.)

President Obama tomorrow supposedly is going to begin the process of shutting down the U.S. prison at Guantanamo Bay, Cuba. Which leads to the thought: Wouldn’t we have all been saved a lot of heartache if the Bush Administration simply had classified its detainees as POWs from the get-go?

That’s the question posed by David Koplow, a former Pentagon deputy general counsel for international affairs who now teaches international law at Georgetown University’s law school.

Wouldn’t the whole problem have been avoided if we had simply, at the outset, decided to treat them all as PoWs?" he writes in an e-mail, which I am quoting here with his permission. "The additional ‘rights’ they acquire in that status are, after all, pretty minor — have to give them decent treatment, food, water, health care, etc. anyway, and the extra duties regarding treatment of PoWs are small enough that they won’t break the bank. And we would then have the right to hold them until the war is over. And we wouldn’t have to conduct criminal trials of them (but we could do so for war crimes charges, if we elect). We would have to individually assess each person, to make sure he/she really is a fighter, and not some innocent civilian picked up by mistake; but we should do that anyway."

Koplow continues:

As I understand it, the administration decided not to accord PoW status to the Taliban and al Qaeda for political reasons — we did not want to ‘dignify’ these illegal fighters by according them the privilege of PoW status. That was probably a misjudgment on the applicable law, with respect to the Taliban, and it was probably a misjudgment on the politics with respect to both."

So, he concludes:

For me, one big lesson of this sorry enterprise is that we should consider POW status to be the default position — apply it unless we’ve got a good reason not to."

Ricks again: I think his comment makes sense legally, diplomatically and strategically. What’s more, the POW approach might even have been more productive in gathering intelligence. If the fight against terrorists is open-ended, then POWs in that fight face indefinite detention — which might give them an incentive to cooperate.