The Ambiguities of War   

How governments label prisoners, and journalists, affects how they will be treated.

In March, when images of American prisoners of war held by Iraqi forces aired on Iraqi state television and independent Arab television station Al Jazeera, U.S. government officials immediately cried foul. Lt. Gen. John Abizaid labeled the video "disgusting" and "absolutely unacceptable." Secretary of Defense Donald H. Rumsfeld cited Article 13 of the Third Geneva Convention, which requires signatory nations to protect POWs from "acts of violence or intimidation and against insults and public curiosity."

Of course, the convention can be violated only by the nations that have signed it, not by media organizations. But that didn't stop NASDAQ and the New York Stock Exchange from barring Al Jazeera from broadcasting on site, shortly after the station aired the footage (see Free Press).

Critics suggested that the Bush administration was being a little inconsistent in its invocation of international law on behalf of its own soldiers. What about those al Qaeda and Taliban suspects captured by the U.S. in Afghanistan back in 2001? Military officials had initially allowed photographers and video operators from American news organizations like CNN, CBS and the Army Times to take pictures of those prisoners as they were loaded onto cargo planes before being sent to Guantanamo Bay in Cuba in January 2002. Then, abruptly, officials ordered the journalists not to transmit the images.

"CBS Evening News" defied the ban by airing about 10 seconds of footage. Other media protested, arguing that the military had no authority to censor the photos because they had nothing to do with operational security. But the Associated Press also reported that Pentagon spokesman Rear Adm. Craig Quigley claimed that the International Red Cross had objected to the images on the grounds that "the Geneva Convention prohibits humiliating, debasing photos." (The AP story said that the Red Cross denied contacting the Pentagon about this.)

Whatever the impetus for the order might have been, the Bush administration did an about-face once the prisoners arrived at Camp X-Ray. At that point, the media were allowed to take and publish photographs. Why didn't those pictures violate the convention, too?

Simple. The captives in Gitmo aren't POWs at all. The convention doesn't apply to them.

Al Qaeda, the government argued, is an "international terrorist group." And it considers those fighting for the Taliban, which ruled Afghanistan at the time of the conflict, to be "unlawful combatants," not "prisoners of war."

Others disagreed, but the administration declined to submit to an international tribunal to resolve the status of the detainees. Rumsfeld said it was unnecessary because "there is no ambiguity in this case."

Attorneys representing the Guantanamo detainees turned to the U.S. judiciary for help. They filed suit in federal court in the District of Columbia, seeking a writ of habeas corpus (an order issued to bring someone before the court) as well as other relief. But on March 11, a panel of the federal appeals court ruled unanimously that the detainees were not entitled to sue in any U.S. court because they had never "had any presence in the United States." Focusing on the peculiar legal status of the Guantanamo base, which is technically in Cuban territory, the court relied on a post-World War II Supreme Court decision and ruled that because the Guantanamo prisoners "at no relevant time were within any territory over which the United States is sovereign," it had no jurisdiction to consider their claims.

Less than two weeks later, the disturbing images of the American soldiers captured by Iraqi forces appeared on international television. To the Bush administration, their status as POWs was clear. So was the violation of the Geneva Convention.

Other cases might not be so straightforward. The Geneva Convention says if "persons who accompany the armed forces without actually being members" fall into enemy hands, they are to be treated as prisoners of war. This explicitly includes "war correspondents."

But how might Iraqi forces regard embedded journalists, prohibited by military ground rules from wearing uniforms? Or Newsday staffers Matthew McAllester and Moises Saman, who, along with two freelance photographers, were routed from their hotel rooms in Baghdad and held in prison for eight days? They reported that Iraqi officials grilled them about whether they were spies before finally releasing them.

"Unlawful combatant" or "prisoner of war"? "War correspondent" or "spy"? Legal rights, and even life and death, often depend on just such "ambiguities."