Lots of people call Bowe Bergdahl, who has been held by insurgents on the Afghanistan-Pakistan frontier for nearly three years, a prisoner of war. Even his father, Bob, used the term for his son in a recent chat with Time’s Nate Rawlings. But he’s not a POW, and never has been, at least as far as the Pentagon is concerned.
In fact, the Pentagon told Time on Wednesday – to the surprise of experts in the field – that it stopped using the term “prisoner of war” in 2000. That’s before 9/11 and all the legal debate over the status of alleged al Qaeda operatives at Guantanamo Bay (the Bush Administration ultimately termed them “illegal enemy combatants”).
“It is true that Sergeant Bergdahl is being held by criminal actors, and not a nation-state and signatory to the Geneva Conventions, but the POW designation was changed several years ago to `Missing-Captured,’” Commander William Speaks, a Pentagon spokesman, says. “The `POW’ designation has gone away completely.”
“That’s very interesting,” says Simon Schorno, spokesman for the Washington office of the International Committee of the Red Cross. “I didn’t know that.”
“Sometimes important things are hiding in plain sight,” says Eugene Fidell, who teaches military law at Yale and is a former long-time president of the National Institute of Military Justice. “This is one. Given how the Bush administration struggled with how to characterize the Guantanamo detainees — avoiding calling them POWs — it’s not surprising that people tended not to focus as sharply on the other side of the equation, where one of our people is being detained by someone else. “
Speaks cites a Pentagon directive that notes:
POW is not a casualty status for reporting purposes. For reporting purposes, the casualty status and category would be missing-captured. POW is the international legal status of military and certain other personnel captured during an armed conflict between two countries and that status entitles those captured to humanitarian treatment under the Third Geneva Convention, “Geneva Convention Relative to the Treatment of Prisoners of War.” The international status of POW is automatic when personnel “have fallen into the power of the enemy.” There is no action required by any country in the conflict to have that status applied to their personnel and for their personnel to be entitled to the humanitarian protections of the Geneva Convention.
Basically, the Pentagon is saying the POW label is applied internationally and automatically, and there’s no reason for the U.S. military to do the same. But the POW label has been widely used inside the Pentagon – and continues to be used in places like the Pentagon’s Defense POW/Missing Personnel Office and the Prisoner of War Medal, created in 1985.
Schorno, of the ICRC, says there can be no POWs stemming from the Afghan conflict as far as the Red Cross is concerned. “Bergdahl’s not a POW because we don’t qualify Afghanistan as an international armed conflict,” he says. “We see it as an internal conflict with an international presence, which makes him a person detained in the context of a non-international armed conflict.” (“It is,” he concedes, “a bit convoluted.”)
All combatants captured are supposed to be accorded humane treatment under the Geneva Conventions by their captors, but plainly that’s voluntary and can be ignored, especially by non-state insurgents. The key benefit of being a POW, according to Schorno: prompt release once a conflict ends.
Bergdahl’s status has changed, but he was never listed as a prisoner-of-war. (As his status changed, so did his rank: captured as a private 1st class, the Army promoted him to specialist on June 12, 2010, and sergeant on June 16, 2011.)
Initially, when the Pentagon announced he had gone missing on June 30, 2009, it used one of the military’s rarest, but spookiest, labels to describe his status: Duty Status Whereabouts Unknown, or DUSTWUN.
Three days later, after a video surfaced that the Pentagon concluded showed Bergdahl in enemy hands, his status changed again – “Missing-Captured” – which is what it remains today.
When senior U.S. military officials discuss Bergdahl, they don’t call him a POW: “He remains missing in action,” Army General Martin Dempsey, the chairman of the Joint Chiefs of Staff, said May 10.
While Bergdahl is the sole U.S. soldier now missing in the post-9/11 wars and presumed to be alive, he is hardly the only missing member of the U.S. military.
The Hawaii-based Joint POW/MIA Accounting Command – there’s that no-longer used POW term again –is still looking for about 83,436 U.S. service members from the nation’s conflicts. Most – 73,681 – are from World War II, but a May 16 tally from the Defense Prisoner of War-Missing Personnel Office show that the hunt continues for 1,666 U.S. troops who disappeared in Vietnam, 7,957 who vanished in Korea, and 126 who never returned from the Cold War.