January 05, 2005

That’s odd. I can’t access Instapundit, Powerline, or LGF at the moment. Could it be Internet congestion?

Update 5:43pm: Hosting Matters, which provides the servers for both LGF and Instapundit, was indeed offline briefly. Per LGF:

Hosting Matters went offline for a little while, while the crew performed a major upgrade that should improve service. Hope no one broke any New Years resolutions as a result.

All three sites are accessible now.

The Hole In The Geneva Conventions - And The Confirmation Hearings For Judge Gonzalez

The Senate is soon to hold confirmation hearings for Judge Alberto Gonzales, who is nominated by GWB to succeed John Ashcroft as attorney general. The Left is expected to object to Gonzalez prior advice regarding the status of al-Qaeda prisoners under the Geneva Conventions. From the National Review:

President Bush’s nomination of Judge Alberto Gonzales to succeed John Ashcroft as attorney general will soon come before the Senate for its advice and consent, and there is going to be a battle royal. The Left is marshaling its forces to bloody Gonzales, and clearly hopes to deny him confirmation. The pretext for opposing this superbly qualified appointee will be his role, as White House counsel, in developing the administration’s legal position on the classification and treatment of individuals captured in the War on Terror. The stakes in this battle are high: At issue may be nothing less than the future of American sovereignty.

Ever since the Abu Ghraib prisoner-abuse photographs surfaced nearly a year ago, opponents of the Bush administration’s policies in Afghanistan, Iraq, and elsewhere have used those images in their ongoing effort to discredit the American legal position on “detainees.” That position – which correctly denies captured al-Qaeda and Taliban members the rights and privileges granted to honorable prisoners of war under the Geneva Conventions – was outlined by Gonzales, based on legal advice received from the Departments of Justice and State, in a memorandum to the president dated January 25, 2002.

My brother, Jed Rubenfeld, Professor of Constitutional Law at Yale University, has discussed this issue on prior occasions unrelated to these Senate confirmation hearings. Professor Rubenfeld has noted (no link):

The Third Geneva Convention the Convention relative to the Treatment of Prisoners of War (hereafter GC III) establishes a comprehensive set of protections for prisoners of war. It also sets forth the requirements with which combatants must comply in order to qualify for prisoner-of-war status. These requirements, entailing respect for the most fundamental laws of war, are routinely violated by terrorist organizations.

...But the Third Geneva Convention is silent about the treatment of captured combatants who fail to qualify for prisoner-of-war status.

The authors of the Geneva Conventions made no provision for combatants who purposely violate the requirements under which they would qualify for protected status under those Conventions.

My personal speculation is that those authors may have presumed that any combatants who failed to qualify under GC III, would have the protections they were provided prior to the signing of the Geneva Conventions—in other words, no internationally sanctioned protections of any kind.

The Fourth Geneva Convention specifies protections for civilians interned during wartime, as for example the Japanese civilians interned in the U.S. during World War II. Professor Rubenfeld continues:

Many international lawyers assert that the Geneva Conventions solve this problem by treating unlawful combatants as civilians protected by the Fourth Convention (hereafter GC IV). The following statement is representative: [P]risoners detained by an enemy in an armed conflict either are protected by the Third Convention as prisoners of war, or by the Fourth Convention as civilians….

The difficulty with this position is clear. GC IV establishes a comprehensive set of protections for detained civilians. These protections are, naturally, robust both substantively and procedurally, as befits the situation of civilians interned by hostile forces. In many ways, these protections are much stronger and more solicitous than those conferred on prisoners of war: they include, for example, prohibitions on forced transfer, periodic and frequent review of detention with an eye toward release, restrictions on detention in the absence of criminal charges, and so on. Such protections are thoroughly reasonable in the case of detained civilians.

But it is highly unsatisfactory to say that unlawful combatants combatants who have not complied with the most fundamental laws of war and who ought to occupy a legal status inferior to both civilians and prisoners of war should be entitled to these special, robust GC IV protections, which are denied to lawful combatants. To be sure, civilians may be prosecuted for acts that would not be criminal in the case of lawful combatants, but this does not alter the basic problem. Unlawful combatants should not be granted a panoply of rights and protections denied to lawful combatants.

And there it is. The Geneva Conventions have a hole in them. There is nothing in them that specifies a status for combatants, such as terrorists, who willfully violate the requirements by which they would qualify under GC III.

It appears to me that Judge Gonzalez advice on this subject to President Bush was entirely correct.