FOX News Channel host Bill O'Reilly argued that the Geneva Convention does not apply to detainees held at Guantánamo Bay, Cuba, by claiming that "[a]ll of the Guantánamo guys are Al Qaeda. All of 'em!" In fact, according to the Defense Department, a significant number of Guantánamo detainees are Taliban fighters, and even President George W. Bush has taken the position that unlike Al Qaeda detainees, the Geneva Convention does apply to Taliban fighters held at Guantánamo. Moreover, the Associated Press reported on October 10 that "[a]bout three dozen men already have been freed," suggesting that they were neither Al Qaeda nor Taliban (though at least ten ex-detainees did return to the battlefield to fight against U.S. forces in Afghanistan and Pakistan).
On the November 11 broadcast of the nationally syndicated Radio Factor with Bill O'Reilly, O'Reilly told a caller who argued that at least some Guantánamo detainees deserve the protections of the Geneva Convention that "you have to make that analysis on the facts":
O'REILLY: You think that [Abu Musab al-]Zarqawi and [Osama] bin Laden are entitled to Geneva Convention protections?
CALLER: No, I don't.
O'REILLY: All right, so what are you disagreeing with me for? That's the crux of the matter.
CALLER: Well, I'm disagreeing with you because the overwhelming of people [sic] aren't bin Laden or Zarqawi -- they're --
O'REILLY: They're all bin Laden guys!
O'REILLY: Wait, wait, wait -- [caller's name], [caller's name] --
CALLER: Let me finish.
O'REILLY: Hold it! No! I'm not lettin' you finish a fallacious analysis. All of the Guantánamo guys are Al Qaeda. All of 'em! Whadda you think they were doing there? Go ahead --
O'REILLY: But [caller's name], look, if you're gonna make an analysis and disagree with me then you have to make that analysis on the facts. You saying that the Guantánamo people -- the 500 people being held in Guantánamo -- aren't Al Qaeda is wrong.
On May 7, 2003, then-White House press secretary Ari Fleischer announced: "President Bush today has decided that the Geneva Convention will apply to the Taliban detainees, but not to the Al Qaeda international terrorists." Fleischer proceeded to explain that while the Bush administration does not consider either Al Qaeda or Taliban to be prisoners of war under Article 4 of the Geneva Convention, the convention still governs the detention of Taliban members, presumably as "enemy combatants." By contrast, human rights groups, including Human Rights Watch, argue that because they were fighting for the de facto government of Afghanistan -- which is a party to the Geneva Convention -- Taliban detainees are legally entitled to prisoner of war (POW) status under Article 4 of the Third Geneva Convention.
Later in the show, O'Reilly and co-host E.D. Hill ridiculed those who believe that the Geneva Convention applies to detainees from Afghanistan. They claimed that, as "normal people would interpret it," the Geneva Convention's "letter of the law" excludes fighters who are not in uniform. In fact, though the Geneva Convention notes that a requirement for POW status is "a fixed distinctive sign" -- a uniform signaling affiliation with a militia or volunteer corps -- that requirement applies to only one particular category of prisoners, which does not include Taliban fighters:
CALLER: [T]o be eligible for Geneva Convention rights, don't you have to be in uniform of a nation?
O'REILLY: No, see that's where it gets murky. That's the letter of the law, but they're not interpreting it that way. So, look --
HILL: That's how normal people would interpret it. You've gotta have a symbol or a uniform or something.
O'REILLY: We're not dealing with normal people. We're dealing with the Los Angeles Times. We're not dealing with normal people. We're dealing with the ACLU. Not normal people -- Human Rights Watch.
HILL: If they [the authors of the Geneva Convention] meant they didn't have to have uniforms of a nation --
O'REILLY: They woulda said it.
HILL: That's right.
Article 4 of the Third Geneva Convention sets out six distinct categories of prisoners whom the convention defines as POWs. According to Human Rights Watch, Taliban fighters belong in the third category: "Members of regular armed forces who profess allegiance to a government or an authority [in this case, the Taliban] not recognized by the Detaining Power [in this case, the United States]." The requirement that potential POWs are in uniform applies only to the second category:
2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.
Since Taliban fighters are not covered under this provision, the "distinctive sign" requirement does not apply to their status. As Human Rights Watch explains: "the four-part test of Article 4(A)(2) applies only to militia operating independently of a government's armed forces, not to members of a recognized (Article 4(A)(1)) or unrecognized (Article 4(A)(3)) government's armed forces."