I believe that the Administration misread Article 4 of the Third Convention with respect to the Taliban. I think that under any fair assessment, the Taliban constitute the armed forces of a party to a conflict. Even our own military manuals, and no one is citing them, but if you take a look at Air Force Law of War Manual, it says "upon capture, any person who does not appear to be entitled to prisoner of war status but has committed a belligerent act is required to be treated as a prisoner of war until his status is properly determined."

The Administration is applying the wrong part of the Conventions. They have invoked the provisions for irregular combatants not under Article 4-1, but under Article 4-2. They are treating them as though they are guerrillas or partisans who were fighting for a party to the conflict. And that’s wrong in my view. The Taliban are the armed forces of the state. As far as I’m concerned, this belies the Administration’s other statements that the Taliban are organized, they are dangerous, they have tanks, etc. I think the Administration is definitely subverting the object and intent of the Convention. These people are the armed forces to a conflict and they should be judged against the standards in Article 4-1. They have a command structure. They were fighting. The United States clearly knew who to target which means they were distinguishable. And the fact that members of regular armed forces may commit violations of the laws of war or do not always comply with those does not in effect make them non-lawful combatants. It just means that if they have committed a war crime they enjoy no immunity from prosecution for that war crime. They don’t forfeit their status as lawful combatants entitled to POW status because they may have committed a war crime.

There is a lot of misinformation coming out of the press. For example, you can interrogate a prisoner of war for as long as you want. You can’t torture them, you can’t beat them, but then you can’t do that to an unprivileged combatant either. The Administration has done something very dangerous in stating that the Taliban are irregular combatants and don’t meet the standards of Article 4-2 and are unprivileged (combatants). In taking this stance, the Administration has virtually said that the Taliban’s resistance to US Forces who invaded their country, or that merely pointing a gun an American or shooting at an American troop would render them subject to a prosecution under US criminal law for murder or attempted murder. An unprivileged combatant is a person who without a privilege or license goes out and engages in hostilities without having a right to do it. This is one of the things people don’t understand. The essence of prisoner of war status is that lawful combatants authorized by a party to the conflict are entitled to POW status because they have a license to go out and kill and destroy the enemy. Upon capture, they are immune from prosecution for their lawful acts of war. They could only be tried for violations of the laws of war or other pre-capture offenses. If you are an unprivileged combatant however, you can be punished for your mere combatancy and each and every one of your hostile acts even if you complied with the laws of war.

I would make two distinctions between Al Qaeda members who are captured in third countries and those captured in Afghanistan. Those captured in the United States, the UK or elsewhere are essentially being treated as law enforcement matters and are being tried under domestic statutes and criminal law. If those Al Qaeda members would declare prisoner of war status, it would be denied because that attack is the work of private individuals. To make war, you have to be sanctioned by the state and this does not appear to be the case so therefore they will be treated as common criminals. I think the situation is different however with respect to those Al Qaeda members who effectively fought on the side of the Taliban once the United States undertook military action. And the reason that is different is that the Geneva Conventions are not conditioned on the causes of the conflict or the causes that the people espouse. It applies equally across the board. And in that case, I think the United States could have said, that the Geneva Convention applies to these particular Al Qaeda combat detainees but they were not regular members of the Taliban’s armed forces. They fall under Article 4-2, and our reading under Article 4-2, and the Administration would be right in my view, that they belong to an organization that openly and notoriously has as its goal targeting civilians. They have concealed their arms on other occasions. It would be very plausible if the Administration used that logic to deny Al Qaeda members POW status. Again, it is still arguable, and what I would have urged the Administration to do is go ahead and give them an Article 5 tribunal. Any Article 5 tribunal is going to deny them POW status. In point, I support the Administration’s determination on Al Qaeda, but I disagree with their reasons.

If the Administration had listened to the experts on this, they would have said, "Hey guys, this has real implications for us if we don’t give prisoner of war status. We risk nothing. We can find that Al Qaeda are unprivileged combatants and apply the convention to them. We’ll even give them an Article 5 tribunal."

In the case of the Taliban, whether we like them or not is irrelevant to the application of the Convention. And if they were involved in September 11 or other kinds of acts and if they constitute either violations of US law or international law, then we can still subject them to trial and still give them prisoner of war status. A good example is Noriega. Noriega was held as a prisoner of war. Nonetheless, he was tried on drug trafficking charges that did not come within the jurisdiction of either a military commission or a military tribunal and therefore he was tried for that offense in a US District Court, but he is held as a prisoner of war to this day.

By denying the detainees prisoner of war status, the US finds itself at variance with the International Committee of the Red Cross, with most experts, and with most of our European allies. But the real danger is that the kind of rhetoric that was used – the Geneva Conventions don’t’ apply to this kind of war and that we will selectively apply the Conventions – can open up problems for us down the line in military actions that we surely will be undertaking where people in effect will try to say the same thing about US special forces.

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