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Bush administration's "shift" on the Geneva Convention
had its intended effect in all the headlines Friday heralding the
administration's "shift" on the Geneva Convention.
After leaked
memos and high-stakes meetings, Bush decided that the Geneva Convention
formally applies to Taliban prisoners. What this means, effectively,
is nothing.
The administration's
new position is that, although Taliban soldiers could in theory
qualify for POW status under the Geneva Convention (this is the
"shift"), none of them do because they flunk the Geneva
Convention tests for POW status.
This is little
like saying that Alec Baldwin (to use a Goldbergesque analogy) could
in theory have qualified for graduation from MIT, but flunked all
the tests. Obviously, the qualification in theory is much less important
than the flunking in practice.
Amazingly,
administration critics aren't even going to get the least of what
they wanted from the administration: a separate hearing for each
Guantanamo detainee to determine whether he qualifies for POW status.
What critics
are going to get is a supposed "victory" for Colin
Powell and the administration's European critics. If that makes
the administration's p.r. life easier, it's probably worth it (although
this might provide a hook for more agitation about the administration
"selectively" applying the convention).
But the administration's
position that the Geneva Convention 1) does apply in theory and
2) doesn't apply in practice is not as clean intellectually as it
would been simply to rule out the Taliban for Geneva protection
altogether.
As far as I
can tell from chatting with Geneva guru and Yale/Johns Hopkins law
professor Ruth Wedgwood, the administration's position comes down
to this: If the Taliban were to wage a lawful war, wearing uniforms,
with a neighboring country, say over a border dispute, they would
qualify for Geneva protection.
But instead
the Taliban were waging a war, out of uniform, in the league with
terrorists who do not respect the laws and customs of war, and so
are not as a group entitled to Geneva protection in this particular
instance.
What bothers
me about the administration's position is that it is a sort of retroactive
recognition of the Taliban as a legitimate government. To recognize
them now, after we never recognized them while they were in power
and after we waged a war to chase them from power, seems strange.
But such will
be the odd wrinkles when you want to do your international law by
press release.
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