WaPo editorial today gets Geneva Conventions wrong

The Washington Post, in its Sunday, January 16, 2005 editorial today opposing the confirmation of Alberto Gonzales as attorney general, gets it wrong on the Geneva Conventions. My guess is that the editorial writers have never actually read the relevant article of the conventions, but instead have simply relied on press releases from various rights groups that tell the WaPo what it wants to hear. The editorial reads:

"In fact, the White House counsel [Gonzales] endorsed the view that the hundreds of combatants rounded up by U.S. and allied forces in Afghanistan, who included members of the Taliban army, foreign volunteers and a few innocent bystanders, as well as al Qaeda militants, could be collectively and indiscriminately denied Geneva protections without the individual hearings that the treaty provides for." (Emphasis added)

The Post's editorial writers might have troubled themselves to read what Article 5, paragraph 2 of the Third Geneva Convention actually says:

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." (Emphasis added)

It has long been my view, in scholarly and other writing, that sound policy urges the US to give each detainee a tribunal to determine their status, at least if it is proposed to deny someone Geneva protections. This is the view in 1997 Department of Defense regulations that afforded a brief, three officer panel to make such determinations and which was informally regarded, according to my understanding, by the ICRC as beyond the standard required by the Third Geneva Convention. I believe the decision of the Bush Administration not to apply those regulations was inappropriate and unwise. But it was not a violation of the Convention.

The Bush Administration was - and is - not in violation of Article 5 of the Third Geneva Convention. Read it. It does not say that a "competent tribunal" shall determine whether any doubt has arisen with respect to the POW status of a detainee. It says, rather, that "should any doubt arise" as to whether a detainee is entitled to POW status, then the person shall be treated as a POW until a competent tribunal shall determine his or her status. The question of who is entitled to determine whether any doubt has arisen is left open - it does not say that this matter must be determined by a competent tribunal. It leaves open the possibility that the President or the Secretary of Defense may determine, even for an entire group of detainees, that no doubt arises and hence no tribunal is required.

This was a bad - very bad - policy judgment by the Bush Administration in these circumstances. It should have gone with DoD's existing regulations; I agree entirely with Tod Lindberg's analysis in the Weekly Standard, here. But it is not a violation of the actual language of the treaty. The consistent inability of MSM such as the Post - slamming this at the administration in article after article for now several years - strongly suggests to me that few, if anyone, in MSM have actually read the text. Instead, I suspect, reporters and op ed writers find it easier to rely on various highly unobjective and partisan NGOs. But reading this one sentence is not rocket science; even a Post editorialist ought to be able to parse it without deferring to Amnesty International or Human Rights Watch. (Note to MSM reporters: Groups such as AI and HRW perform an invaluable service. But their legal analyses are not objective; they are lawyers' briefs, aimed at reaching a particular, foreordained conclusion. I understand that, being MSM, you like analyses that reach foreordained conclusions; it's a process only too familiar to you, and it's especially congenial when it reaches your foreordained conclusions. But don't forget, somewhere in the back of your mind, that it is not, and never was intended to be, objective. Lawyers write briefs - just as, alas, so many of you do.)

But it is not merely through a technical oversight that Article 5 was drafted this way, as the treaty drafting history indicates. It was designed to take account of the following kind of situation. Suppose the US Navy picks up drug smugglers with tons of cocaine onboard their vessel, out in the Caribbean. One of them claims POW status - "I am a FARC member from Columbia! I am a POW!" Now, if a hearing were held, obviously that claim would be rejected forthwith. (Or would have been. By reason of the Bush administration's very poor lawyering in front of the Supreme Court, overreaching on a constitutional theory of unitary executive power that didn't even win over Justice Scalia and taking down a perfectly defensible interpretation of the Geneva Conventions with it, fullblown and perhaps even civilian court hearings may now be required, in place of the informal, battlefield 1997 DOD regulations' hearings. But that's another post.) Should that claim by drug smugglers to be entitled to POW treatment pending a fullblown hearing be required? Article 5 was drafted precisely to make clear that you do not have to afford a hearing in every case, only in those cases where some doubt has arisen - and it is not required, under the language of the treaty, for a tribunal to make that determination. In the case of the drug smugglers, it makes perfectly good sense for the commanders to make the determination that doubt has not arisen. It does not make sense, nor is it fair, in the case of fighters picked up in Afghanistan - but it is within the literal wording of the text. It is not a violation of international law.

One of the few commentators to have picked up on this is jurisprudentialist Ronald Dworkin - scarcely a friend of the Bush administration. Nevertheless, with admirable objectivity, his analysis of the detainee cases in the Surpreme Court, in the New York Review of Books, carefully avoids the claim that this action by the administration violates the Conventions, although he slams the administration on nearly every other matter. Read his article here. (Dworkin makes the same point in an earlier article in the NYRB, but it is only subscriber available.) The key excerpt (emphasis added):

"The Geneva Conventions draw a fundamental distinction between two classes of people that a nation might capture in war or other military action. One class must be treated as prisoners of war, which means, among other things, that they may not be punished simply for bearing arms against the capturing nation, that they must be held in conditions comparable to those of the soldiers guarding them, and that they may not be exposed to coercive interrogation. The second class includes not only civilians fighting independently of any government but soldiers in a more organized action who do not wear uniforms or other identifying badges or who fight with a force that does not respect the laws of war. They are not entitled to prisoner-of-war status; they may therefore be prosecuted and punished as criminals for acts of war, though the Geneva Conventions require that they be treated humanely.

The Bush administration claims that these provisions allow it to detain some prisoners, whom it calls "unlawful combatants," indefinitely without charge or prosecution, even though they are not treated as favorably as prisoners of war and may be subjected to coercive interrogation. It claims that Hamdi, Padilla, and its other prisoners belong to that category, and it may continue to do so if, as seems likely, they are unable successfully to challenge their detention before military commissions or in habeas corpus proceedings. In an earlier article in these pages I argued that, whether or not this option is permitted by a strict understanding of international law, a decent respect for human rights requires that the administration set it aside and choose between prosecuting its prisoners as criminals, with the normal safeguards of the criminal process, and treating them as prisoners of war, which would mean an end to round-the-clock interrogation, sensory deprivation, humiliation and other forms of coercion. I said that the administration's present policy shows an impermissible contempt for the rights and dignity of its victims.

The Court's recent decisions suggest that a new and stronger claim can now be made: that the government's treatment of prisoners it calls "unlawful combatants" is not only morally indefensible but forbidden by the Constitution as well."

Note that although Dworkin severely criticizes the administration on moral and even, finally, on Constitutional grounds, he is careful to refrain from declaring that it is in violation of international law - i.e., Article 5 of the Third Geneva Convention.

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The point, then, is that the Post editorial repeats a error oft-heard across MSM, that by failing to provide individualized hearings, the US is in violation of the Geneva Conventions. As a policy matter, and indeed as a matter of basic fairness, it should do so. As a matter of international law, that, I'm afraid, amounts to a MSM urban legend.

(I discuss Article 5 of the Geneva Conventions in more detail on this blog here.)