On yesterday's WSJ editorial page, Douglass Feith displays his virtuosity by spinning US detention policy and the Geneva Conventions into a big ball of fuzz. He begins by trumpeting the virtues of the Geneva Convention:
Next , like a good hard right-winger, he asks what's in it for us:
U.S. forces are more likely to benefit from the Convention's protections if the Convention is applied universally.
It is highly dangerous if countries make application of Convention hinge on subjective or moral judgments as to the quality or decency of the enemy's government. (That's why it is dangerous to say that U.S. is not legally required to apply the Convention to the Taliban as the illegitimate government of a "failed state.")
Feith leaves no room for doubt here. He's thought things through. Its great to have intellectuals of his caliber in government so were certain to avoid setting any bad precedents.
Sticking with his pro-convention rhetoric, he purports to find some thematic echoes of the Bush's "war on terrorism " in -- of all places -- the Geneva Conventions:
A "pro-Convention" position reinforces [the U.S. government's] key themes in the war on terrorism.
- The essence of the Convention is the distinction between soldiers and civilians (i.e., between combatants and non-combatants).
- Terrorists are reprehensible precisely because they negate that distinction by purposefully targeting civilians.
- The Convention aims to protect civilians by requiring soldiers to wear uniforms and otherwise distinguish themselves from civilians.
- The Convention creates an incentive system for good behavior. The key incentive is that soldiers who play by the rules get POW status if they are captured.
- The U.S. can apply the Convention to the Taliban (and al Qaeda) detainees as a matter of policy without having to give them POW status because none of the detainees remaining in U.S. hands played by the rules.
Most international lawyers say the conventions are about protecting all people caught up in armed conflict, not drawing a distinction between soldiers and civilians. Mr. Feith's pro-convention position has a curious emphasis on defining classes of detainees unqualified for POW status. But the most egregious distortion is his statement that none of the detainees deserve POW status because they didn't "play by the rules". He overlooks the Convention requirement that a tribunal determine whether or not a detainee is entitled to POW status. If the administration reserves the right to determine who does and doesn't qualify for POW status, then the protections of POW status can be negated by simply misclassifying detainees.
Feith purposes the following "public" position for the US :
In sum, U.S. public position on this issue should stress:
- Humane treatment for all detainees.
- U.S. is applying the Convention. All detainees are getting the treatment they are (or would be) entitled to under the Convention.
- U.S. supports the Convention and promotes universal respect for it.
- The Convention does not squarely address circumstances that we are confronting in this new global war against terrorism, but while we work through the legal questions, we are upholding the principle of universal applicability of the Convention.
So this is the U.S. "public" position, what is the actual position?
What does upholding the principle of universal application of the convention mean if "the Convention does not squarely address ... this new global war on terrorism"? Apparently U.S. policy asserts that the Fourth Geneva Convention -- generally regarded to protect all non-POW detainees -- does not apply by law to detainees the administration chooses to classify as "illegal combatants". So apply in principle but not in law, means does not apply. Remember these are Feith-based Geneva Conventions -- no need for the laws here.
Feith then jumps in line behind Mr. Bush:
A few days later, President Bush protected these important Defense Department and U.S. interests by determining that the Conventions apply by law (and not just by policy) to our conflict with the Taliban regime. But Taliban detainees are entitled only to basic humane treatment, for the Taliban failed to meet the Convention's conditions for POW status -- e.g., wearing uniforms and complying with the laws of war. The Conventions do not apply to the conflict with al Qaeda. But al Qaeda detainees are entitled anyway to the same basic humane treatment, consistent with the Conventions' principles.
So the Convention applies to the Taliban regime, just not any actual people in the regime. By arbitrarily classifying Taliban members as illegal combatants, the administration exempts them not only from POW status but from having any status at all under the Convention. Similarly, Al Queda detainees are asserted to have no status under the Convention.
Turning to Iraq, Feith becomes slightly less obtuse:
As to Iraq, the U.S. government has recognized from the outset that the Geneva Conventions apply by law and all Iraqi detainees are covered by them. All Iraqi military detainees have had POW status. As we all know from the horrible photos, some detainees in Iraq have been abused, but that mistreatment violated the Defense Department's policy as promulgated by the secretary.
We want the members of our armed forces, the American people and the world to know that U.S. policy is "pro" Geneva Conventions, and that the Defense Department's leadership has been and remains committed to applying them properly throughout the war on terrorism -- in Afghanistan, with al Qaeda, in Iraq and around the world.
Feith appears to leave a loophole in the convention applicability for any non-Iraqi detainees captured in Iraq. And despite his claim that DOD policy from the beginning of the Iraq conflict extended Geneva Convention applicability to all Iraqi detainees, even the legal staff of the U.S. Commanding General in Iraq, General Sanchez, thought some Iraqi detainees were not covered by the Geneva Conventions.
Feith-based Geneva Conventions are remarkable. The trick is all in the application. Decide at your convenience to whom they apply. And when you deem they don't apply, apply them in principle but not in law. That way you're always pro-convention - in principle. It's a wonderful world if you stay positive, make things work for you and leave the mess for someone else.
Feith's editorial is here by subscription only.
Here is background information on the legal status of the Guantanamo detainees.