Can Internees of Neutral Countries Receive POW Status?
The US Government has several separate entities that award POW Status. One is the military, and the other is the Department of Veterans Affairs. Although the eligibility criteria used by both are more or less the same, the determinations of each are not interchangeable; having POW Status through one does not guarantee the same for the other. Each branch of the military, as well as each regional VA office often interprets POW eligibility regulations differently (and subjectively), which has not promoted much uniformity in the awarding of POW Status to deserving veterans. In particular, internees of neutral countries are often denied POW Status because the officials in question have preconceived notions about POW Status and frequently do not understand what legally constitutes a POW.
Legislative History for the Military Award- the POW Medal.
The statute that established the POW Medal was Public Law 99-145, Title V, Sec. 532(a)(1), Nov. 8, 1985. The public law in question, which began as S.1160, was the National Defense Authorization Act for Fiscal Year 1986, sponsored by Senator Barry Goldwater of AZ. It was a large bill intended to authorize appropriations for the military functions of the Department of Defense, of which the POW Medal statute was only a minor portion. It was amended on May 21, 1985 by Senator William V. Roth, Jr., to include the language that first established eligibility criteria for the POW Medal in Title 10, Sec. 1128. The original wording only authorized a POW Medal to service members held captive “while engaged in an action against an enemy of the United States; while engaged in military operations involving conflict with an opposing foreign force; or while serving with friendly forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party.”[1]
The initial attempt by Congress to retroactively recognize POWs by criteria different than those used to determine POW status in previous conflicts was problematic at best, and left out large groups of deserving captives such as detainees, internees, and hostages of terrorists. Omitted groups and individuals that drew significant public attention at the time were the crew of the USS Pueblo detained in the Democratic People's Republic of Korea (DPRK), the US Navy and USAAF crews interned in neutral Russia during World War II,[2] USMC Lt. Col. William R. Higgins’ kidnapping and execution by Hezbollah-affiliated terrorists,[3] and the U.S. soldiers from the U.S. Embassy in Teheran, Iran who were held hostage by terrorists.[4] Upon review by the Department of Defense and the Office of Management and Budget, the general counsel of the Department of Defense determined that these types of captivity did not qualify for the POW Medal under the original statute, and would require an amendment to change the policy.[5]
The groups who were previously omitted from POW Medal consideration obtained congressional support and were rewarded by the 101st Congress in 1989. Title 10 Sec. 1128 was modified by Public Law 101-189, Nov. 29, 1989, which originated from H.R.2461, the National Defense Authorization Act for Fiscal Year 1990 and 1991. Sponsored by Representative Les Aspin, the bill added the fourth paragraph to Title 10 Sec. 1128 and authorized the POW Medal for those captured “by foreign armed forces that are hostile to the United States, under circumstances which the Secretary concerned finds to have been comparable to those under which persons have generally been held captive by enemy armed forces during periods of armed conflict.”[6] The bill originally began as an effort to authorize the crew of the USS Pueblo to qualify as POWs, since the Navy had previously insisted on recognizing the crew only as detainees. The original House version of H.R. 2461 explicitly authorized only the crew of the USS Pueblo to receive the POW Medal, and did not modify Title 10 Sec 1128.[7] The House version of the bill was copied verbatim from H.R. 819, introduced by Representative Jim Slattery.[8] The House Committee on Armed Services expressed its reasoning in report 101-121, which explained that the original intent of the POW Medal statute was to allow the award in incidents such as the USS Pueblo’s capture, but that due to the wording of the statute the detainees simply did not “meet the literal requirements of the law.”[9]
The legislative intent for POW Medal eligibility broadened when H.R. 2461 was considered by the Senate, which resulted in expanded eligibility for the POW Medal intended to allow the award to military captives so long as they met a standard of treatment comparable to how POWs have generally been held in periods of armed conflict. The Conference Report on H.R. 2461 reveals that the Senate originally approved no corresponding section for POW Medal eligibility in its version of the National Defense Authorization Act, and therefore receded to create an amendment that would
“clarify the intent of Congress that persons serving with the U.S. armed forces who are taken prisoner and held captive by certain hostile, foreign armed forces should receive the prisoner of war medal. This clarification is intended to cover the individuals taken prisoner as a result of the U.S.S. Pueblo seizure, as well as any similar occurrence that the Service Secretary concerned deems comparable to the circumstances under which persons have generally been held captive by enemy armed forces during a war or conflict.”[10]
The Senate Armed Services Committee almost certainly extracted the language for expanded POW Medal eligibility from S. 847, the only Senate bill in the 101st Congress that addressed the expansion of eligibility criteria for the POW Medal and was referred to the Armed Services Committee.[11] The bill included nearly the verbatim eligibility language that ended up in H.R. 2461 and Title 10. The stated intent behind S. 487 was to authorize the POW Medal for “certain individuals who were held captive in circumstances comparable to those under which persons have been held captive by enemy governments.”[12]
S. 487 was authored by Senator Alan Cranston and Senator Spark Matsunaga, and was intended specifically to streamline POW status eligibility criteria between Title 38 and Title 10 and correct the deficiency in Title 10 that prevented award of the medal to captives such as “the crewmembers of the USS Pueblo and the military personnel who were held captive in Iran during the seizure of the United States Embassy in Teheran.”[13] In his statement to the Senate, Senator Cranston explained that he previously coauthored Title 38 Veterans’ Affairs POW legislation “providing that an individual who was detained during wartime by a foreign, nonenemy government-- that is, a neutral or ally--is a former POW for VA benefit purposes, if the Administrator of Veterans' Affairs determines that he or she was held under circumstances comparable to those under which persons are held as POW's by enemy governments.” Cranston introduced S. 487 specifically to “bring eligibility for the former prisoner-of-war medal into conformance with the standard used for eligibility for benefits under title 38 that are provided on the basis of the veteran being a former prisoner of war.” In proposing this bill, he not only intended to extend eligibility for the POW Medal to the crew of the USS Pueblo, but also allow “others with similar experiences to receive the recognition which they earned at such great personal cost--recognition that they have been denied due to the rigid definition of prisoners of war currently being applied for purposes of the medal.” Cranston’s statement leaves no doubt that the congressional intent of S. 487 was to award the POW Medal based on the primary criteria of captivity “in circumstances comparable to those under which persons have been held captive by enemy governments.” Not only did Cranston not intend the diplomatic relations with the captor’s government to preclude the award, but he specifically stated that neutral or allied governments would meet the criteria so long as they treated US service members comparably to how POWs have generally been held captive by enemy forces.[14]
The POW Medal eligibility language in H.R. 2461 was shortened by the Senate Armed Services Committee prior to inclusion in the final amendment, such that the requirement for captivity was modified from “by a foreign government or its agents, or a hostile force,”[15] and changed to “by foreign armed forces that are hostile to the United States.”[16] This change introduced the ambiguity in the statute that eventually resulted in the current policy misinterpretation.
Policy Issues.
As expressed by the office of the Secretary of the Army and the Secretary of the Air Force, the policy of both services is that regardless of the individual hostile acts of a captor, if his or her allegiance is to a neutral state then the POW Medal is not authorized because a neutral state is by definition not hostile.[17] However, the statute does not require a “hostile country” as a captor, merely hostile treatment on behalf of members of a foreign country. The congressional intent of the 101st Congress was clearly to award the POW Medal based on treatment comparable to American POWs in general, not to award the medal only to the crew of the USS Pueblo, nor establish a precedent that future awardees must be held by a country at least as hostile as the DPRK (North Korea). Had Congress intended the statute to be so exclusive, they would have proceeded with the original House language in H.R. 2461 which only authorized the medal for the crew of the USS Pueblo as an explicit exception, and did not modify the POW Medal statute. The fact that Congress instead chose to modify the statute and make it more expansive clearly demonstrates the intent to award the medal in circumstances such as those where military service members were held in neutral countries, so long as the circumstances of incarceration were “comparable to those under which persons have generally been held captive by enemy armed forces during periods of armed conflict.”[18] The intent of Congress was not to authorize the POW Medal to every service member who is briefly detained against their will under any circumstances, but rather to extend the possibility of such an award after review by the military Secretary in question.
The current USAF/Army policy interpretation is also in conflict with the current DoD policy of awarding the POW Medal to hostages of terrorists. The military services currently award the POW Medal to anyone held by a terrorist under the same comparable circumstances clause of Public Law 101-189, since terrorists are not conventional enemy armed forces that would automatically qualify a captive for the award under the original statute adopted by the 99th Congress in 1985. Even though the United States is considered “at war” with terrorism, terrorists are often non-state actors, and any national allegiance is either irrelevant or unknown. For the purposes of the medal award, a terrorist is normally determined hostile by virtue of taking U.S. soldiers prisoner and mistreating or killing them. Eligibility is therefore determined by individual actions of the captors, not diplomatic relations with their state of origin. If the same AFPC/DPFC policy interpretation requiring a patently hostile government is strictly applied to this scenario, then the POW Medal cannot be awarded if the terrorists are citizens of allied or non-hostile states, since diplomatic relations would preclude the award under the same justification that AFPC/DPFC uses to deny the medal to those held by neutral states.
Military Award Precedents.
Soon after the passage of Public Law 101-189, the Navy awarded the POW Medal to the crew of the USS Pueblo in 1990, and from 1991-1992 the Air Force and the Navy awarded the POW Medal to all U.S. aircrew members interned in neutral Russia during World War II.[19] More recently, the USMC embassy guards held hostage in the U.S. Embassy in Iran received the POW Medal from the Navy in 2000, and USMC Lt. Col. William R. Higgins received the POW Medal from the Navy in 2003. In 1996 and 2006 the USAF awarded POW Medals to USAAF T/Sgt Daniel Culler and Lt. Richard Pettit for illegal incarceration in prison camp Wauwilermoos, in neutral Switzerland.[20] Recent U.S. Army hostages of terrorists in Iraq who received the POW Medal include 1st Lt. Jacob Fritz, Spc. John Chism, Pvt. 1st Class Shawn Falter, Pvt. 1st Class Kristian Menchaca, and Pvt. 1st Class Thomas Tucker.
Legislative Basis for Veterans Affairs POW Status.
The VA legislation for POW Status is somewhat less ambiguous on the subject of internees. According to 38 U.S.C. § 101(32)(B), “The term "former prisoner of war " means a person who, while serving in the active military, naval or air service, was forcibly detained or interned in the line of duty by a foreign government or its agents, or a hostile force, under circumstances which the Secretary finds to have been comparable to the circumstances under which persons have generally been forcibly detained or interned by enemy governments during periods of war.” Again, comparable conditions of internment are the burden of proof that a veteran must meet to obtain POW Status. The former director of the VA Compensation and Pension Service, Gary Hickman, restated these rules: “The tenet of the decision making process used to establish entitlement to POW status is whether or not the circumstances under which individuals were interned, or forcibly detained, were comparable to those individuals detained by enemy governments during a period of war. In other words, did an individual, interned by a neutral country suffer hardships comparable to POWs held by an enemy country. If the answer to this question is yes, recognition of POW status will be established.”[21]
VA Policy Legislative History
The VA Administrator's authority to extend POW status to veterans interned by non-enemies was authorized by the Former Prisoner of War Benefits Act of 1981, Public Law 97-37, on 14 August 1981. The original language of 38 U.S.C. § 101(32)(B) stated that the person must have been forcibly detained or interned in the line of duty "by a foreign government or its agents, or a hostile force, during a period other than a period of war in which such person was held under circumstances which the Administrator finds to have been comparable to the circumstances under which persons have general1 been forcibly detained or interned by enemy governments during periods of war." The act also established an advisory committee on former prisoners of war which is comprised partly of former POWs, and advises the VA Administrator on the administration of benefits to former POWs. [22]
VA Awards
Over a dozen internees of Switzerland have POW Status for VA purposes, and this depends largely on where the veteran lives. The Central VA office distributed a white paper in the early 1980s directing regional offices to award POW Status to internees of Straflager Wauwilermoos in Switzerland, but unfortunately this was sporadically enforced.[24] Many internees of other neutral countries during World War II (Sweden, Portugal, and Russia) also have POW Status through the VA. It all depends on which regional office the veteran falls under, and whether the veteran has the records to prove what actually happened to him. The US Government classified the treatment of most internees of neutral countries in World War II, making it extremely difficult to document conditions of internment through the US Archival System. In addition, the National Personnel Records Center lost most World War II military personnel files in a large fire in the 1970s.
[1] Amendment 175 to S.1160, (Senate- May 21, 1985), 131 Cong. Rec., S12907.
[2] Russia was an ally of the United States with respect to the European Theater, but was neutral with respect to the Pacific Theater. They signed a neutrality pact with Japan in April 1941, and only declared war with Japan on 8 August 1945, eight days prior to the unconditional surrender of Japan.
[3] Statement of Senator McConnell on U.S. Marine Lt. Col. Rich Higgins (Senate - July 31, 1989), 135 Cong. Rec., S9078.
[4] Statements on Introduced Bills and Joint Resolutions (Senate - March 01, 1989), 135 Cong. Rec., S1926.
[5] Testimony of Vice Adm. J.M. Boorda for House Armed Services Committee Hearing No. 101-19, June 23, 1989.
[6] H.R. 2461, National Defense Authorization Act for Fiscal Years 1990 and 1991, enrolled as agreed to or passed by both House and Senate.
[7] National Defense Authorization Act, Fiscal Year 1990 (House of Representatives - July 25, 1989), 135 Cong. Rec., H4165.
[8] H.R. 819 IH, 101st Congress, 1st Session (1989).
[9] Report 101-121 of the Committee on Armed Services, House of Representatives, on H.R. 2461 (House- July 1, 1989), 273-4.
[10] Conference Report on H.R. 2461, Department of Defense Authorization Act (Senate- November 6, 1989), 135 Cong. Rec., S14970.
[11] S. 487 IS, 101st Congress, 1st Session (1989).
[12] Introduction of Bills and Joint Resolutions (Senate - March 01, 1989), 135 Cong. Rec., S1919.
[13] Statements on Introduced Bills and Joint Resolutions (Senate - March 01, 1989), 135 Cong. Rec., S1926.
[14] Ibid.
[15] Ibid., S1927.
[16] Conference Report on H.R. 2461, Department of Defense Authorization Act, (Senate- November 6, 1989), 135 Cong. Rec., S14745.
[17] See BC-2003-03664, BC-2004-00557, BC-2004-00563, BC-2004-01228, BC-2004-01631, BC-2004-01748, BC-2005-02068, BC-2005-02966, BC-2006-00674, BC-2006-01927, and BC-2006-02260.
[18] 10 U.S.C. § 1128.
[19] The precedent of the Siberian internees is significant because the legal status of service members in neutral Russia was identical to those of internees in any neutral country. The USAF effort passed review by the SAF/GC and was determined to meet legal criteria. USAF Secretary Donald Rice approved POW Medals for all Siberian internees on 2 October 1992.
[20] T/Sgt Culler received the POW Medal with the help of (then) USAF Chief of Staff Gen Ronald Fogleman, and Lt. Pettit received the POW Medal from the AFBCMR in BC-2005-02774.
[21] Letter from J. Gary Hickman, Director VA Compensation and Pension Service, dated 4 March 1996.
[22] Public Law 97-37, 97th Congress, 14 August 1981.
[23] VA White Paper, "American POWs in Switzerland."
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