The United States of America mismanaged detainees during the initial phases of the Global War on Terror (GWOT) because it did not understand its own history. The American administration failed to capitalize on its own lessons learning during the establishment of Prisoner of War (POW) procedures during World War II (WWII), and the legal precedents established in Johnson v. Eisentr?ger (1950). This is important because civil rights groups and others are legally challenging the US Government on its detention policy.
America had no plan for handling POW?s when WWII started, and spent the war refining the tactics, techniques and procedures necessary. The US had signed the 1929 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, also known as the Third Geneva Convention, and was legally bound to abide by its provisions for the POW?s. Under this Third Geneva Convention, prisoners are:
? To be quickly removed from the battlefield, and their status reported;
? Afforded conditions similar to those used by soldiers of the state holding them, to include comparable food and living quarters;
? Provided health and religious support;
? Transported when healthy, and told the details of their move;
? Allowed to correspond;
? Held under the detaining powers own military code;
? To be repatriated when seriously sick or injured.
The US signed the convention in 1932, but was unprepared to treat prisoners in accordance with it when WWII started. The US was rapidly building combat units, in order to join the war and support Britain and the Soviets, and did little initially to build units or organizations to handle POW?s. The US was also not ready for the sheer volume of prisoners of war that it detained in WWI. By mid-1943, the US held over 240,000 German POW?s alone, and by May 1945, the US held over 425,000 POW?s in the almost 500 POW camps it operated in the United States. In June of 1945, the US, UK and France held a combined 7.5 million POW?s.
As the number of POW?s held by the US rapidly increased during WWII, the US tried different approaches to handling them. Interagency efforts failed, and the administration quickly gave the burden to the military. But early in 1942 and 1943, the US focus was building combat units, not guarding prisoners; POW camps became dumping grounds for failed leaders, which only exasperated the problems associated with implementing the requirements of the Geneva Convention. This changed in 1943 and 1944, as American Army finalized its techniques and procedures for handling POW?s.
By war?s end, the American POW camps in the US had become a proven asset to their communities. The Third Geneva Convention allows for the use of prisoners as laborers, under certain provisions, and small communities across the US benefited from this. From logging to harvesting the crops, the prisoners helped sustain the American economy and indirectly support the war effort, largely through the efforts of the effective and efficient procedures established by the US Army.
Things, though, changed with the defeat of Nazi Germany. General Dwight Eisenhower, Military Governor of the U.S. Occupation Zone in Germany, designated newly detained civilians and soldier as Disarmed Enemy Forces, and applied the label to personnel already in US custody in Germany as POW?s. In doing so, Eisenhower did not have to afford these personnel the same provisions accorded POW?s under the 1929 Third Geneva Convention. The convention would have required the release of POW?s to their parent nation upon the completion of hostilities, and would have afforded them the above specified protections and treatment as POW?s, neither of which Eisenhower did for the Disarmed Enemy Forces. Eisenhower argued that, with the collapse of the Third Reich, there was no parent country to which the POW?s could be returned. Some one million Disarmed Enemy Forces were kept in Rheinwiesenlager (Rhine meadow camps), the official name for the Prisoner of War Temporary Enclosures (PWTE) that were little more than open fields. Others were put to work in hard labor, to include clearing minefields.
Additionally, US forces captured a number of German soldiers in China after the German surrender but before the Japanese surrender. The US military transported these personnel to Germany, and subjected them to a trial by a military commission, for violating the laws of war. The trials and detainees were held outside of the United States. In Johnson v. Eisentr?ger, 21 of these prisoners sued the US Government, claiming their treatment violated US law. The US Supreme Court, in hearing the case, concluded that it had no jurisdiction over the case, as the prisoners, captured in China and transported to Germany, had never been on US soil. The Court ruled that ?the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.? The US military could continue its practice of trial by military commission outside the legal framework of the international treaty, Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field.
The United States thus looked to the Johnson v. Eisentr?ger extrajudicial process in 2001, when American began its Global War on Terrorism. The Bush administration viewed the developing conflict with Al Qaeda and, to a lesser extent, the Taliban as itself being an extrajudicial battle, given that Al Qaeda is an organization and not a state, and that the Taliban government in Afghanistan was not recognized as being valid or sovereign. The White House identified their fight as unconventional warfare, and expected to rely heavily on Special Forces, the use of intelligence, and covert action.
Specifically, the US Administration sought to exclude the use of the term Prisoner of War and the status it brings to those detained. White House lawyers coined the term Enemy Combatant, much like Eisenhower user Disarmed Enemy Forces. Doing so specifically allowed the US administration to treat detainees in a manner not prescribed by the Third Geneva Convention, since Enemy Combatant, like Disarmed Enemy Forces, is not used in the language of the Convention.
Enemy Combatants would not need to be quickly evacuated from the battlefield, or afforded care or living conditions comparable to those of US or coalition soldiers. Enemy Combatants could be subjected to interrogation methods beyond those permitted under the Third Geneva Convention and, in keeping with its ?The gloves are off? approach to the conflict, the US Administration would be free to do as it deemed necessary to win its conflict. By not granting them POW status, though, the US could not fall back on its examples from WWII, in establishing low-risk, low security camps around the United States to handle the detainees until the conflict ends. Those rules established by the Third Geneva Convention, and those techniques and procedures learned the hard way in WWII, became inapplicable with the creation of the extrajudicial term Enemy Combatant.
Like the Rheinwiesenlagers, the Disarmed Enemy Forces, and the 21 soldiers from Johnson v. Eisentr?ger, the US Administration actively sought to keep these Enemy Combatants from transiting US soil, specifically in keeping with the Supreme Court findings in Johnson v. Eisentr?ger. While the US has had some success in detaining personnel at Guantanamo Base, Cuba, it has had few other choices for locations for detention facilities for the Enemy Combatants, given the international acceptance of the Third Geneva Convention. Many of these individuals are being detained in Iraq and Afghanistan, on the very battlefields where they have been detained, or later subjected to rendition, their return to the security services of their home nation.
The Bush Administration misunderstood the American history of POW?s and detainees, and thus has mismanaged detainee operations during the GWOT. The US administration failed to capitalize on its own lessons learning from during and after WWII, by not declaring those detained today to be POW?s and by not being able to process these thousands of modern detainees in the same manner as had been the POW?s of WWII or the 21 Germans detained in China.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Office of the High Commissioner for Human Rights, 21 October 1950 (http://www.unhchr.ch/html/menu3/b/q_genev1.htm).
Johnson v. Eisentr?ger, 339 U.S. 763 (1950) (http://www.law.uchicago.edu/tribunals/docs/jve.pdf).
Johnson v. Eisentrager Talking Points – Background for Current Cases, U.S. Federal Courts (http://www.uscourts.gov/outreach/topics/habeastalk_johnsoneisentrager.htm).
Joint Investigation Into September 11th: Fifth Public Hearing, Cofer Black, Joint House/Senate Intelligence Committee Hearing, 26 September 2002 (http://www.fas.org/irp/congress/2002_hr/092602black.html).
Medical Department, United States Army Preventive Medicine in World War II, Volume IX, Special Fields, Prepared and published under the direction of Lieutenant General LEONARD D. HEAT0N The Surgeon General, United States Army Editor in Chief, Colonel ROBERT S. ANDERSON, MC, USA Editor for Preventive Medicine, EBBE CURTIS HOFF, Ph D, M D Assistant Editor, PHEBE M. HOFF, M.A., Office of the Surgeon General, Department of the Army, Washington, DC, 1969 (http://history.amedd.army.mil/booksdocs/wwii/EPWs/EPWs.htm).
Testimony, George Tenet, Senate Select Committee on Intelligence, 6 February 2002 (http://www.fas.org/irp/congress/2002_hr/020602tenet.html).
Trouble in Germany, Time Magazine, 22 October 1945 (http://www.time.com/time/magazine/article/0,9171,778431-1,00.html).
Was Ike Responsible for the Deaths of Hundreds of Thousands of German POW’s? Pro and Con, James Bacque and Ernest Fisher, Jr., History News Network, George Mason University, 17 February 2003 (http://hnn.us/articles/1266.html).
World War II Prisoners of War in Georgia: Camp Gordon?s POWs, Kathy Roe Coker, Command Historian Office, US Army Signal Center and Fort Gordon, Augusta, GA 1994.