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About Those Detainees . . .

The administration's legal reasoning is open to question.

Feb 11, 2002, Vol. 7, No. 21 • By TOD LINDBERG
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The apparent government position is that all local resistance to the U.S. war effort was in principle unlawful. You can take that view. But in previous conflicts, the United States has not. Current military regulations create a presumption of protected status: "All persons taken into custody by U.S. forces will be provided with the protections of the [third Geneva Convention] until some other legal status is determined by competent authority."

It is certainly plausible that a "competent authority" such as the secretary of defense or the president has made a blanket determination that the status of "all persons" is different in the present war. But doing so essentially means reading the Geneva Convention to include a very flexible and easily asserted opt-out provision, which renders inapplicable all the rest of its protections and procedures.

Does a war against terrorism, a new kind of war, justify or perhaps require such a view? Perhaps it does, but not for many of the reasons most often cited in the administration's defense. It is perfectly lawful under the convention, as Human Rights Watch points out, to question a prisoner of war, to give him privileges if he cooperates (though not to punish him for refusing to offer more than name, rank, and serial number), to prosecute him for war crimes or other crimes, and if convicted by an appropriate tribunal (operating, that is, under the same rules as apply to the members of the armed forces of the detaining power) to put him in prison for life or put him to death.

None of this is to suggest that all the detainees at Guantanamo should be deemed prisoners of war, or even any of them. It's perfectly reasonable to hold that al Qaeda members are unlawful combatants, on the grounds that the very purpose of the organization is to target civilians, among other war crimes. It's less obvious that all Taliban fighters are unlawful, though many of them might be. What is not obvious at all is that any of these conclusions, as applied to detainees in Cuba as well as those in U.S. custody elsewhere, are beyond "any doubt." The language of Article 5, moreover, calls for a hearing whenever there is "any doubt" that a detainee is a prisoner of war. This is plainly intended as a threshold protection for detainees, not as a mechanism by which the detaining power can assert that there is "no doubt" that the detainee is not a prisoner of war.

All of which suggests that either the detainees deserve a determination of their status by a "competent tribunal," as stated in Article 5, or else the Bush administration owes a competent legal argument for its conclusion to the contrary. So far, there is no public evidence it has one.

Contributing editor Tod Lindberg is a Hoover Institution fellow and editor of Policy Review.