ZAUN GULF WAR
Sabina Louise Pierce  /  AP file
Gulf War POW Jeffrey Zaun.
msnbc.com
updated 5/19/2004 3:13:40 PM ET 2004-05-19T19:13:40

During the Gulf War in 1991, when Navy Lt. Jeffrey Zaun’s A-6 Intruder was brought down by Iraqi fire, both Zaun and his pilot wound up in captivity. Shuttled between Iraqi jails during the war, including the notorious pen that POWs dubbed “The Biltmore” in Baghdad, Zaun was beaten and tortured. On several occasions, he was threatened with death and under duress forced to read a statement against the war while his captors videotaped it.

Zaun left the Navy in 1998 and now works as a financial analyst at a major Wall Street firm. He sat down with MSNBC.com’s Michael Moran to talk about the Geneva Conventions, the Iraq prisoner abuse affair and the position the United States finds itself in as it pursues warfare against militants not necessarily fighting on behalf of a nation-state.

MORAN: Given the position the U.S. now finds itself in with regard to the treatment of captives in Iraq, would it be appropriate at this point to treat all detainees in Iraq as “criminals,” i.e., to afford them attorneys, hearings? Or is it more appropriate to continue to treat them as POWs in cases like this where combat has shifted to insurrection?

ZAUN:  The Geneva Conventions on the treatment of prisoners cannot be applied in a war on terror — at least not the conditions for prisoner release.  There’s no group whose surrender would justify prisoner release and no one who could be held responsible for prisoners’ behavior upon repatriation.  Our military can’t call its prisoners POWs until we have named the group for which they are fighting.  But because we are, indeed, at war, the prisoners aren’t criminals either.  We can’t sentence them unless they’ve broken the “law in war,” and they don’t get such rights as a speedy trial, legal representation, or the right to be released if not charged.

MORAN: It appears that the administration long ago determined that the Geneva Conventions were no longer a realistic framework for handling captives that are not part of a regular army. Why do you think they didn’t publicly address the issue — suggest formal renegotiations — before this situation became public knowledge?

ZAUN: Ironically, Abu Ghraib may have forced progress by making us lay out rules for the treatment of prisoners, and the monitoring of this treatment, by which we will be bound.   

Both the Geneva Conventions and the U.N. Charter were designed by nation-states for nation-states.  We are fighting terror groups embedded within sovereign states.  We have finessed the fact that we can't respect other nations' sovereignty over some of their citizens or trading partners.  Nation-states won't voluntarily surrender elements of their own sovereignty — or the sovereignty of trading partners.  It would be unrealistic to have expected the U.S. to negotiate changes to the conventions before Abu Ghraib.  

To establish a point from which to negotiate new elements of a convention on prisoners, the U.S. would have had to make clear to the "international community" that the alternative to negotiating such an agreement is having the U.S. do as it sees fit with regard to prisoners (and terror groups) without regard to state sovereignty.

In negotiation-speak, this would be called resetting the international communities BATNA (Best Alternative To a Negotiated Agreement). The Bush administration has had the courage to deal with terror, WMD and prisoners directly — and take the heat. But for good reasons, they're still finessing the language.

Abu Ghraib might force us to state the unpleasant: We are fighting terror groups, and the countries from which they hail don't have final say in our military's rules for engaging the members of these groups or holding them prisoner. That's a starting point from which we can negotiate rules by which we will be bound. 

The conditions of release are important to prisoners. So is having your captors deal directly with the group for which you were fighting (Pakistan might not look after interests of former al-Qaida members; Iraq's government probably won't care much for former Saddam Fedayeen or Al-Sadr militia). I have suggested that our least bad alternative is to name a terror or insurrectionist group and tie the conditions for release to our defeating or coming to terms with that group, say Al-Sadr's militia. But this isn't a solution because it entails aggravating nation-states.

One thing we should do immediately is separate "POWs" from those terrorists and insurgents who can be prosecuted for breaking the "law-in-war." Those terrorists can be prosecuted criminally — and they get lawyers, a right to face their accusers, to be released, etc. (maybe not the right to a speedy trial).  But once again, this will be diplomatically unpleasant because we will be using classified information for some prosecutions; thus, prosecution can't be handed over to an international organization. For some prisoners, we might say we're holding them for international prosecution until we can make an unclassified case against them.

Once we're done interrogating prisoners, there's little reason not to treat them well.  There is some justification for being strict around rules, though. In the Korean War, there was a serious riot by North Korean prisoners because we didn't use a firm hand.  It's covered in a book called "This Kind of War," by T.R. Fehrenbach. The book also covers the problems faced by U.S. POWs that led to the "Code of Conduct" that we use today.

MORAN: Do you think its practical at this point to win approval for changes to the Geneva Conventions, or has the Abu Ghraib affair doomed that effort?

ZAUN: I see three real options moving forward:

1. Declaring unilaterally a set of rules for treatment, release, prosecution and monitoring by which we intend to bind ourselves.  It's not a great option.  It's my favorite, but it's probably not going to happen. This option sets up a situation where it's us against the rest of the world, but it will also reset the BATNA for the rest of the world.  We can negotiate an international agreement from there; but remember, an "international" agreement will be negotiated by nation-states, so it won't necessarily look to the interest of people who have fought for non-state actors.

2. Acting against "terror" and WMD directly while finessing the language so as to spare other nations from a loss of face and an unpleasant precedent.  We can have international organizations inspect our treatment of prisoners without unilaterally stating the rules for treatment and release by which we will bind ourselves.  This means you lose clarity by fighting a “war on terror” (not terror groups), but you also don't enrage the international community.  I bet this is what the current administration will do.  It's a compromise.

3. Backing off a bit in the "war against terror" and WMD by submitting to international rules for war and "international" representation of prisoners. The Taliban and Saddam are gone; we have less need act unilaterally now. We can hand back a lot of prisoners we no longer need to hold (most aren't criminals, just poor people fighting for groups under warlords).  I think this is what a  new administration would settle into, and we might get away with it. But to the extent we break off engagements with terror groups, we're more likely to experience another attack. Also, if we don't follow through in Iraq — and there will be a lot more setbacks — then we lose the leverage of having a successful free country putting pressure on Iran, Saudi Arabia, Syria and other countries in the region.

MORAN: Do you think the Geneva Conventions are obsolete?

ZAUN: The Geneva Conventions lay out rules for POW treatment and roles for institutions, such as the Red Cross. They're not obsolete. They stand as the right model for "inter-national" war, and they're a good starting point for a war on terror groups. They do not, however, address situations that have arisen because we are not fighting a nation-state. 

MORAN: Do you think it had any benefit to you during your captivity?

ZAUN: I was released because America followed through with our military's mission. The Iraqis heeded the conventions, and handed me over to the Red Cross once they'd been beaten.  To the extent that the Iraqis obeyed any rules, they did so because the U.S. Army's 7th Corps and the USMC's 2nd Marine Division crushed and cowered them. The Iraqi and terrorist prisoners don't have the benefit of a military instrument that intimidates their American captors. Civilians may be intimidated by Iraqi insurgents or Taliban, but our soldiers are not. The insurrection slows rebuilding and hurts Iraqis, but it does not come close to affecting combat power of U.S. forces in country. The Iraqis who held me suspected they'd be beaten by our military. The U.S. soldiers holding Iraqis have no concern about Iraqi wrath; they'll only be beaten from behind; that is, if the U.S. electorate behind them decides that the war isn't worth it. Thus, there is a need for an international check on our treatment of prisoners.

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