Return to Transcripts main page

CNN Live Saturday

Interview With Criminal Attorney Barry Pollack

Aired January 26, 2002 - 22:08   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
CATHERINE CALLAWAY, CNN ANCHOR: Now when U.S. forces in Afghanistan began capturing Taliban and suspected al Qaeda members, the Bush administration made a point of calling them detainees and not prisoners of war, as you heard. But the latter distinction would have granted them the protections contained in the Geneva Convention.

But now, Secretary of State Colin Powell is said to be considering a different course. A draft of a White House memo indicates that he may ask President Bush to bring the detainees under the Geneva Conventions, but not necessarily change their status. So what exactly does all this mean?

To help put in perspective for us is Barry Pollack. He's a criminal attorney in Washington and a partner in the law firm Nixon Peabody. And thankfully, very schooled in these complicated matters, which we're about to discuss. Thank you very much for being with us tonight.

BARRY POLLACK, PARTNER, NIXON PEABODY: Thank you, Catherine.

CALLAWAY: Let's talk about, first, do they have to be declared POWs to receive any type of benefits from the Geneva Convention? I'm a little confused about that?

POLLACK: Well, I don't think that there's any question that the distinction has to be made which of these detainees qualify for POW status. But until that distinction can be made, they should all be treated as if they are POWs. The Geneva Convention requires in a situation where there's some doubt, you assume that they're POWs until you're able to demonstrate otherwise for particular individuals.

CALLAWAY: And what happens when the now detainees are then declared POWs?

POLLACK: Well, POWs have a number of rights that other detainees do not. First of all, all detainees, whether they're POWs or not, under international law, have the right to be treated humanely and to be kept in humane conditions. But POWs have additional rights. In fact, they are to be kept in the same kinds of conditions and same kinds of facilities as the American military forces are.

CALLAWAY: In this -- in that particular war, but are we saying that if a Taliban or al Qaeda member were to capture a British or U.S. troop, that they would be treated the way these detainees are being treated?

POLLACK: Well certainly the Taliban and al Qaeda have not had a very good track record for following international law. We would hope that the United States would follow a higher standard.

CALLAWAY: Right.

POLLACK: And what they should be doing under international law is treating them as they would Americans who had been arrested and are facing potential charges themselves. And that's the type of environment that they should be kept in.

CALLAWAY: The Geneva Convention is a product of World War II. This is the year 2002. We're talking about terrorists in America's new rule -- war. I mean, should new rules apply?

POLLACK: Well, the problem is deciding which rules apply. There are a lot of very tricky questions that need to be resolved because certainly the Geneva Convention and other international laws for that matter were not designed with this type of situation in mind, where we have a hostility that is not a declared war, is not primarily or solely against a nation-state, but is against an irregular militia organization.

And so, we have to do is take the current state of international law and figure out which rules apply to this situation.

CALLAWAY: Barry, that sounds like a long process. You know, what's your opinion on what these detainees -- how they should be classified at this point?

POLLACK: Well, at this point, they need to be classified as POWS. But what needs to happen is the United States needs to very quickly set up a system to get them before a court or some other authority to decide who's a POW and for that matter who's properly being detained. The United States, of course, believes that each of these individuals or either al Qaeda or Taliban, but it's entirely possible the mistakes have been made and that some of the individuals are neither.

So what we need to do is set up a system, where they can get before a court or another body, that can look at each individual case and make a decision.

CALLAWAY: It is such a difficult dilemma for the U.S. about how to go about distinguishing the difference between the detainees and those who should be considered POWs?

POLLACK: Well, it's certainly a difficult situation, but it's something that has to be done. You can't hold 160 people and hold them indefinitely, and not come up with any process for deciding which ones you're holding properly and which ones possibly should be repatriated and sent back to Afghanistan.

CALLAWAY: In your opinion, is there any indication that the detainees have not been treated fairly under the international law that does apply here?

POLLACK: I don't have any reason to believe that they have not been kept in humane conditions when the security concerns are considered. What I think is of greater concern is what happens to them now. What kind of process is going to be set up to make sure that they are rapidly processed and that we treat each of them individually, not treat them as a group.

CALLAWAY: What are the possibilities that could happen here on -- once some of these detainees have been declared POWs? What are the some of the possibilities of where they would go? Would they be released back to Afghanistan?

POLLACK: Under the Geneva Convention, a POW, if a POW is injured and therefore not likely again to be a combatant, they're to be returned immediately. There may be some individuals that qualify for that status.

For healthy POWs, they may be detained for the duration of the hostilities. Now it's not going to be entirely clear, necessarily, when the hostilities are done, but presumably at some point, there will not be active fighting any longer in Afghanistan. At that point, POWs should be returned.

CALLAWAY: what do you think the next step of the U.S. should be now. We've already said that this is, you know, a new war, a new situation. What do they look in the history books to realize the right path to take in this situation?

POLLACK: Well, you have to look at prior wars, prior hostilities, and try to pick guidelines out of them. But clearly, what needs to happen, what needs to happen very rapidly is a court needs to be established so that each individual can be brought before it and judged on the evidence against that individual.

CALLAWAY: Barry Pollack, thank you very much for joining us today.

POLLACK: Thank you, Catherine.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com