Falsehood #2: All Guantánamo detainees are confirmed terrorists

Numerous media figures have stated or suggested that the prisoners held at Guantánamo are all terrorists. On the June 21, 2004, edition of Fox News' The O'Reilly Factor, host Bill O'Reilly stated, "From what I understand, they had -- they took most of [the Guantánamo detainees], like 95 percent of them, off the battlefield, number one. So what the heck were they doing there?"

More recently, Fox host John Gibson asserted that "We have 520 terrorists where we want them, with our boot on their neck." [Fox News' The Big Story with John Gibson, 6/15/05]

But the Pentagon's decision to release numerous Guantánamo detainees suggests that many were not terrorists. In a letter to Sen. Dianne Feinstein (D-CA), Deputy Assistant Secretary of Defense Matthew Waxman reportedly wrote that, as of April 2005, "167 [Guantánamo] prisoners had been released and 67 had been transferred to the custody of other countries." The 167 detainees released were presumably found not to be terrorists, as in the cases of Abdul Rahim and Mamdouh Habib. Both men were captured in Pakistan following September 11, 2001. The U.S. later transferred them to Guantánamo, where they remained for more than two years, accused -- but never charged -- of involvement in terrorist activities. In 2005, the United States released them without charge.

Falsehood #3: The Geneva Conventions apply only to prisoners of war

Numerous media figures have defended the harsh treatment of Guantánamo detainees by claiming that the Geneva Conventions apply exclusively to prisoners of war (POWs). Though many legal scholars agree that Al Qaeda detainees are not entitled to POW status under the Third Geneva Convention, which details protections specifically for POWs, the Fourth Geneva Convention (GCIV) grants different protections to non-POWs.

But the U.S. Army's own field manual states that GCIV protects "all persons who have engaged in hostile or belligerent conduct but who are not entitled to treatment as prisoners of war."

Even the White House has acknowledged that the Geneva Conventions grant protections to some detainees who are not POWs. On May 7, 2003, the White House announced that President Bush had revised his earlier determination and decided that the conventions would apply to the suspected Taliban (but not Al Qaeda) detainees held at Guantánamo even though they are not POWs. Then-press secretary Ari Fleischer explained:

FLEISCHER: Although the United States does not recognize the Taliban as a legitimate Afghani government, the President determined that the Taliban members are covered under the treaty because Afghanistan is a party to the Convention. Under Article 4 of the Geneva Convention, however, Taliban detainees are not entitled to POW status.

Falsehood #4: Enemy combatants do not qualify for protection under the Fourth Geneva Convention

Some conservatives have disputed whether the Guantánamo detainees even qualify for protections under GCIV. Their common argument is that GCIV applies specifically to civilians, thereby excluding so-called "illegal enemy combatants."

Again, the Army's field manual recognizes GCIV protections for non-POWs "engaged in hostile or belligerent conduct."

Further, the ICRC -- the organization that pioneered the concept of international humanitarian law and has monitored compliance with the Geneva Conventions for more than 140 years -- concluded in a 2003 legal analysis that "unlawful combatants" are entitled to protections under GCIV, citing its 1958 analysis of GCIV, which stated:

Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, [or] a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can fall outside the law. (Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Geneva, 195

Falsehood #5: Detainees captured on the "battlefield" are not criminal defendants, so they have no right to petition U.S. courts

A June 22 Washington Times editorial warned, "If the critics are right, and detained terrorists have an inalienable right to access U.S. courts, then they have created a new standard -- one which has no precedent in the Geneva Conventions, the Constitution or U.S. history."

But it is not merely "critics" who have taken the position that the detainees "have access to U.S. courts"; the U.S. Supreme Court has ruled that detainees have the right to challenge the legality of their detentions in federal court. In Rasul v. Bush (http://caselaw.lp.findlaw.com/script...0&invol=03-334), the high court ruled that the "United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantánamo Bay."

Conservatives also have attempted to paint opponents of the Bush administration's detention policy as advocates of granting detainees the full due process rights that U.S. citizens enjoy. The Times, for example, referred to "the current effort to treat Guantanamo detainees like American criminals, with full access to our courts." In fact, while "critics" have frequently argued that detainees must have some legal recourse to challenge their detention, Media Matters for America found no instances of human rights groups or elected officials arguing that the detainees have the same constitutional rights as U.S. citizens or that they deserve the same treatment as "American criminals."
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