Monday, May 02, 2005

Geneva, Miranda, and Hysteria

Swanblog -- updated Every Day in May!

Sigh. It was good while it lasted. CBS News took a break last week from its constant search for negative stories about the War on Terrorism by debunking the claims of Italian journalist Giuliana Sgrena. But it was business as usual Sunday night when 60 Minutes aired a story on alleged prisoner abuses at Guantanamo Bay.

I have no knowledge of the truth of the detainee abuse allegations, but it does seem fishy that the report only interviewed one on-camera witness to the specific conduct at issue. And that witness just happens to have written a book that will be available this week.

Beyond the specific allegations, the CBS broadcast muddied some important waters in reference to the Geneva Convention. Consider this exchange:

However, when they got there, Saar and the rest of Guantanamo’s intelligence personnel were told that the captives were not prisoners of war, and therefore, were not protected by the Geneva Convention.

"Your training in intelligence had told you what about the Geneva Conventions?" asks Pelley.

"That they were never to be violated," says Saar. "As a matter of fact, the training for interrogators themselves, their entire coursework falls under the umbrella of you never violate the Geneva Conventions."

"If the rules of the Geneva Convention did not apply, what rules did apply?" asks Pelley.

"I don't think anybody knew that," says Saar.

To say that the Geneva Convention does not apply to unlawful combatants does not mean that they are to be treated inhumanely. Whether the Geneva Prisoner of War Convention applies, and if so, which provisions apply, is a complex legal question that has nothing to do with whether or not we treat the detainees humanely. For a lengthy discussion of POW status, read this article (full disclosure: I helped edit this article as an adjunct editor for Military Law Review).

I seriously doubt the interrogators at Gitmo read each detainee his Miranda rights. That is because Miranda only applies to custodial interrogations of criminal suspects. Miranda is not the sum total of restrictions on police conduct, any more than the Geneva Convention is the sum total of restrictions on military intelligence conduct. Status under the Geneva Convention is the beginning of the inquiry, not the final conclusion.

A responsible journalist would have asked some version of the following questions:

What is the status of the detainees, under the Law of War?

What actually happened to the detainees?

Is what happened to them prohibited under the applicable Law of War?

Either that, or Andy Rooney can ask probing questions about laundry detergent labels. Tick, tick, tick....


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