The Geneva Straddle
The administration’s position is a sort of retroactive recognition of the Taliban.

February 9, 2002 4:35 p.m.

he 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.