Since the release of my first book on Scott Speicher – No One Left Behind1 – significant pieces of information that stood to change public perception and military action pertaining to his case can now be told, facts that make his the seminal case in the ongoing saga of America’s prisoners of war and missing in action. An American in the Basement documents the incredible true story of denial, deceit and deception that cost Scott Speicher his life. This work includes information that heretofore has been kept from the American public.
After reading An American in the Basement, each and every military operator in any Western military, and each and every parent, family member or friend of one, should seriously question the validity of the promise made by America’s leadership and the military chain of command to do everything in their power to search, locate, assist and recover all prisoners of war and those missing in action. History proves that this promise is mostly political and, worse, could mean nothing at all. When you read Scott Speicher’s story you’ll understand why.
But first there are some clarifications that need to be made. Many of you will want to call Scott Speicher a prisoner of war and that is completely understandable. But the fact is that the Pentagon hasn’t used the term since 2000. This news came as a surprise to experts in the field who were unaware of the change. The Department of Defense has replaced prisoner of war with missing-captured. “That’s very interesting,” observed Simon Schorno, spokesman for the Washington office of the International Committee of the Red Cross (ICRC) when asked for comment by Time’s Mark Thompson in the magazine’s May 17, 2012 issue. “I didn’t know that.”2
“Sometimes important things are hiding in plain sight,” added Eugene R. Fidell3, who is the Florence Rogatz visiting lecturer in law at Yale Law School, cofounder and former long-time president of the National Institute of Military Justice. “This is one. Given how the [George W.] 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.”4
Department of Defense Directive 1300.18 issued on December 18, 2000, eliminated the status/designation prisoner of war (POW) for captured American service personnel, replacing it with the ambiguous designation missing-captured. The directive states:
POW is not casualty status 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 for their personnel and for their personnel to be entitled to the humanitarian protections of the Geneva Convention.
The Pentagon’s policy sheds it of the responsibility of designating an American service member as a POW if the international community applies it automatically. But the POW moniker continues to be used extensively within the Department of Defense. Commands and offices inside and outside the Pentagon still use it as part of their naming convention, principally the Defense Prisoners of War/Missing Personnel Office (DPMO) and Joint POW/MIA Accounting Command (JPAC). Then there is the Prisoner of War Medal and the armed forces Code of Conduct (CoC), doctrine that unequivocally addresses the service member if taken as a “prisoner of war” and refers them to sections of the Uniform Code of Military Justice (UCMJ) that covers the same.
What did this policy do to the Speicher case? Secretary of the Navy Gordon R. England argued in his October 11, 2002 memorandum:
If the government of Iraq is holding Captain Speicher, he is entitled to Prisoner of War status under international law and the Geneva Convention and would have been entitled to such status from the day he first came under Iraqi control. Although the controlling missing persons statute and directives do not use the term Prisoner of War, the facts supporting a change in Captain Speicher’s category from Missing in Action to Missing/Captured would also support the conclusion that if alive, he is a Prisoner of War.
Secretary England’s statement is clear that the controlling missing persons statute and directives do not specify the term prisoner of war. Had the status prisoner of war been left in the language of the missing persons statute and directives, Scott Speicher would have been listed as a prisoner of war.
Prisoner of war wasn’t good enough for Scott Speicher in the fall of 2002 but it would be for Saddam Hussein less than two years later. On December 13, 2003, during the execution of Operation Red Dawn, Saddam was captured by American forces hiding in a spider hole outside a farmhouse in ad-Dawr near his hometown of Tikrit. Following his capture Saddam was transported to a U.S. base near Tikrit, and later Camp Cropper, a holding facility for security detainees operated by the U. S. Army near Baghdad International Airport. The facility was initially operated as a high-value detention (HVD) site, but subsequently increased its capacity from 163 to roughly 2,000 detainees. Almost immediately after Saddam’s capture the ICRC entered discussions with U.S. Central Command (USCENTCOM) and the Coalition Provisional Authority (CPA) for access to the deposed Iraqi leader, according to the Red Cross’ Washington representative Girod Christophe. Less than a month later, on January 9, 2004, Pentagon lawyers declared Saddam a prisoner of war. With this determination the former Iraqi dictator was thereafter protected by the rules of international law and the Third Geneva Convention, which provides for the treatment of prisoners of war. What got him this designation? Saddam was a prisoner of war based on the fact that he was the former head of an enemy military force who was captured on the battlefield during a declared conflict.
Just after the United States declared Saddam a prisoner of war, the ICRC stepped up pressure on Washington to release him from custody or charge him with a crime if the United States and the new Iraqi government were to remain compliant with international law. Nada Doumani, a spokeswoman for the ICRC, informed the media that at the end of the United States’ occupation all prisoners of war had to be released if they had not been charged with a crime. Doumani’s comments came as the ICRC, the only independent group with access to detainees in American custody, became increasingly concerned over the legal limbo in which thousands of people were being held in the run-up to the transfer of power between Coalition and Iraqi authorities that took place June 30, 2004. Thereafter, the American military would remain in Iraq at the invitation of Baghdad’s newly sovereign government.
Fast forward to the case of missing-captured army sergeant Bowe R. Bergdahl, 1st Battalion, 501st Infantry Regiment, 4th Brigade Combat Team, 25th Infantry Division, based at Fort Richardson, Alaska. During his unit’s normal deployment rotation to Afghanistan, he went missing on June 30, 2009, near the town of Yahya Khel in the Paktika Province, located in southeast Afghanistan, right on the border with Pakistan’s Federally Administered Tribal Areas. He was taken into custody by the Haqqani network, an insurgent group affiliated with the Taliban, probably somewhere in Pakistan.
Schorno, of the ICRC, noted that there can be no prisoners of war 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 stated. “We see it as an internal conflict with an international presence, which makes him [Bergdahl] a person detained in the context of a non-international armed conflict.”5 Were Bergdahl classified a POW he’d be covered by a key clause of that status: release at the end of the conflict. But as it stands, Bergdahl is being held by non-state Taliban insurgents under no obligation by the Geneva Convention to return him. He remains “missing in action,” despite five Taliban videos to wit showing him in captivity.
“There are aspects of what defines a prisoner of war that is not so clearly specified in the Department of Defense and Geneva Convention definitions,” wrote retired navy commander, former Central Intelligence Agency (CIA) field officer and former Defense Prisoner of War/Missing Personnel Office (DPMO) case officer William G. “Chip” Beck on August 20, 1998.6 “Not understanding what those aspects are allows practical measures on behalf of the POWs to be minimized.”
“What I mean is this: a POW is a POW, not an MIA.” This is true, Beck iterated, even if the enemy knows that the person is a POW, “but our side does not.” As long as one party, in this case the “holding party,” knows that the person is alive and captive, then he is a POW and nothing else. “When and if a POW dies,” Beck continued, “he does not become an MIA. He becomes a dead POW. The accounting procedures and methodology for finding out what happened to that dead POW, as well as any unrepatriated POWs still held in secret [bold emphasis added], is far different from those for MIAs.”
Beck explained that an MIA is a person who was killed, or lost and subsequently died but not while in captivity, and whose body was not recovered. “There are those in the DoD apparatus,” he observed, “who will argue all POWs and MIAs are MIAs. One can understand the logic, but [you] should not accept it.”
“This lack of distinction serves the enemy’s interest – not ours,” Beck concluded. “It requires us to only track down those men and women who were killed in the conduct of battle, not kidnapped by the forces they confronted.”
Beck concluded with a cautionary note to the families of POW/MIAs that should be kept in mind as you read this narrative:
“…do not…comply with the MIA jargon put out on the issues. POWs are different from MIAs. So are the answers about what happened to the POWs, and so are the questions that need to be asked about them.”
1 Yarsinske, Amy Waters. No One Left Behind: The Lt. Comdr. Michael Scott Speicher Story (Dutton/NAL, 2002, 2003; Listen and Live Audio, 2002, 2004, 2006; Topics Entertainment, 2004; Listen and Live Audio MP3, 2007; Preloaded Digital Audio Player, Playaway, April 2009)
2 Thompson, Mark, “Pentagon: we don’t call them POWs anymore,” Time U.S., May 17, 2012.
http://nation.time.com/2012/05/17/pentagon-we-dont-call-them-pows-anymore/
3 Eugene R. Fidell is the Florence Rogatz Visiting Lecturer in Law at Yale Law School. He is a cofounder and former president of the National Institute of Military Justice and of counsel at Feldesman Tucker Leifer Fidell LLP, Washington, D.C. He is a Fellow of the American Bar Foundation, a Life Member of the American Law Institute, and a member of the Defense Legal Policy Board of the Department of Defense and the board of directors of the International Society for Military Law and the Law of War. He has also taught at Harvard Law School and the Washington College of Law, American University.
4 Ibid.
5 Ibid.
6 Beck, William G., “POW definition compared to MIA,” POW/MIA E-mail Network, August 20, 1998.