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Homeland Security

American Forces Press Service

Government Attorney: Detainees Don’t Deserve POW Privileges

By Kathleen T. Rhem
American Forces Press Service

WASHINGTON, March 4, 2005 Detainees at Guantanamo Bay, Cuba, are being held for reasons of national security and military necessity, not because they’re being punished, a top DoD lawyer explained here March 3.

“They’re being held because we need to take them off the battlefield so that they don’t continue to fight against our troops in the fight and they don’t continue to threaten America and its allies,” said Mario Mancuso, special assistant to DoD’s general counsel.

In an interview with American Forces Press Service, Mancuso explained that international law recognizes detainees can be held indefinitely. The laws of war are meant to advance humanitarian purposes and holding detainees indefinitely can sometimes support that, he said.

“We want to try to shield civilians as much as we can from the horrors of war. We want to shorten war as much as we can. And so the laws of war recognize that combatants can detain the other side’s soldiers, if you will, for the duration of hostilities, because we want to take them off the battlefield,” he said. “We want to shield civilians from these unlawful enemy combatants, because in fact, they target civilians and we want to protect our troops.”

Mancuso said it’s also in the best interests of American soldiers for the United States to not confer prisoner-of-war status on unlawful combatants in the war on terror -- because otherwise there would be no incentive for fighters to follow the laws of war.

Being a POW is a privileged status under the Geneva Conventions, Mancuso said, noting that POWs are entitled to a salary while they’re confined and are entitled to refuse to answer questions. “Once you formally classify someone as a prisoner of war, certain privileges follow, over and above humane treatment,” he said.

Combatants who follow specific laws of war – for example, they fight in uniforms and carry arms openly; they report to an individual who is accountable to a government; they don’t target civilians -- are entitled these privileges. Accordingly, Mancuso said, it makes sense to deny these privileges to fighters who disregard the laws of war.

Affording POW status to legal combatants and denying the corresponding privileges to illegal combatants, such as al Qaeda terrorists, provides an incentive to follow the laws of war, he said.

“We want to create those incentives, because … if you create incentives for people to fight lawfully, you shield civilians and you advance the humanitarian purposes of the Geneva Conventions,” Mancuso said. “Unlawful enemy combatants don’t abide by those conventions; they violate the laws of war. And extending this kind of privileged status to them as well perverts the incentives of the Geneva Conventions.”

He said it’s kind of like earning “Gold Card” status on a credit card. “You have to earn it, but once you get it, it has its privileges,” Mancuso said. “POW status is sort of like that -- you have to earn it, and if we give this status away without having combatants earn the status, then there is no incentive for them to comply with the laws of war. Then, not only would troops be in greater danger, but civilians would be in greater danger.”

The U.S. government has coined the phrase “unlawful enemy combatant” for individuals captured in the war on terror. Mancuso defined an unlawful enemy combatant as “someone who clearly is a combatant against the United States but doesn’t fit into the fairly narrow categories that Geneva sets out for formal prisoners of war.”

He said it’s important for the American public and servicemembers to understand that the government put a lot thought into defining combatants captured in the war on terrorism.

“The Geneva Conventions were written at a time when armies were deployed in the field, and they were written at a time where the only forces capable of mounting existential threats against the United States were massed armies,” Mancuso explained.

“In an age of unconventional weapons, in an age of fanatic terrorists, non-state actors –- including … fanatical individuals -- have the capability of mounting existential threats to the United States, either using unconventional weapons or using conventional weapons in unconventional ways,” he said.

This is also why the government decided the war on terror was a matter for national-security assets to address, not law enforcement.

He said it’s also important for the public to remember that terrorists make no pretense of following the Geneva Conventions. “They hide amongst civilian populations, and it fact target civilian populations,” he said. “So in general it seems that very little of what we do impacts their behavior.”

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