POW's


January 19, 2002


BROOKE GLADSTONE: Over the last week as planeloads of hooded and shackled detainees arrived in Guantanamo Bay, Cuba, the U.S. government faced charges by human rights groups that its treatment of prisoners violated humanitarian law under the Geneva Convention. In a press briefing, Defense Secretary Donald Rumsfeld made clear his belief that the Convention did not apply in this case.

DONALD RUMSFELD: They will be handled in the right way. They'll be handled not as prisoners of wars, because they're not, but as unlawful combatants as I understand it technically unlawful combatants do not have any rights under the Geneva Convention.

BROOKE GLADSTONE:While a few members of the U.S. media were allowed to view the arrival of the detainees from a distance, there are no images of the detainees in the media either as they left Afghanistan or arrived in Cuba. The Pentagon has blocked photographers from transmitting photographs of the transport to news organizations. Oddly enough, Defense Secretary Rumsfeld looked to the Geneva Convention to justify the ban on pictures.

DONALD RUMSFELD: I've got a - there are a bunch of lawyers who are looking at all these treaties and conventions and everything, trying to figuring out what's appropriate. The only thing I did note is that you can't take pictures of them. That's considered embarrassing for them, and they can't be interviewed-- according to the conbee-- Geneva Convention.

BROOKE GLADSTONE:Here to help us decipher the Defense Department interpretation of the Geneva Convention is Michael Byers, professor of international law at Duke University. Professor Byers, welcome to On the Media.

MICHAEL BYERS: I'm very glad to be here.

BROOKE GLADSTONE: Okay. So it seems like the Pentagon is trying to have it both ways. Donald Rumsfeld says for the purposes of their treatment they are not prisoners of war.

MICHAEL BYERS: Well, if you look at the Convention, it says that if there's any doubt as to whether a detainee is a prisoner of war, they must be presumed to be a prisoner of war until it has been determined otherwise by a competent court or tribunal. Now with all respect to the, the secretary of defense, he's not a court or tribunal.

BROOKE GLADSTONE:But Donald Rumsfeld implicitly recognizes them as prisoners of war because he protects their rights under the Geneva Convention not to be photographed by the media. Is that a right under the Geneva convention?

MICHAEL BYERS: Well Article 13 of the Convention says that prisoners of war must at all times be protected against insults and public curiosity. That's the provision that Mr. Rumsfeld is referring to in denying access to the U.S. media. Now the first point you've already made is that you can't really have it both ways. You can't say that they're prisoners of war when it comes to excluding the media, but they're not prisoners of war when it comes to their treatment. But the second point there is that this Convention was negotiated back in 1949, and what they almost certainly meant with insults and public curiosity was the public parading of prisoners in front of jeering crowds. They were not thinking of a 24 hour media society where most people get their information from pictures.

BROOKE GLADSTONE: To your knowledge, have the principles of the Geneva Convention ever been invoked to justify a limitation on press freedom?

MICHAEL BYERS:Not that I know of. The best example of something like what you're referring to that I can think of goes back to those American pilots who were captured by the Iraqis during the Gulf War. They were paraded on Iraqi television and forced to make confessions on Iraqi television. Now that to me would count as a violation of Article 13 of the Geneva Convention. But the media in the United States, they're very capable of making responsible judgments. The decision not to broadcast the full videotapes of Osama bin Laden's statements was a decision that was made by the U.S. media at the recommendation of the White House but not at the insistence of the White House. Now I don't see why in this instance Donald Rumsfeld cannot trust the U.S. media to exercise that responsible discretion.

BROOKE GLADSTONE: Michael Byers, thank you very much.

MICHAEL BYERS: You're most welcome.

BROOKE GLADSTONE:Michael Byers is a professor of international law at Duke University, and he spoke to us from Oxford University in England where he is enjoying his sabbatical.

BOB GARFIELD: Coming up, an inside look at an inside look at moviemaking.

BROOKE GLADSTONE: This is On the Media from National Public Radio.