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June 02, 2005

Why Oh Why Can't We Have a Better Press Corps? (Yet Another New York Times Edition)

I do not like the work of Maureen Dowd--I think that she exemplifies a lot of what is wrong with American journalism today. Nevertheless, I would like to note on her behalf that Danny Okrent is being grossly unfair when he complains that:

13 Things I Meant to Write About but Never Did: Maureen Dowd was still writing that Alberto R. Gonzales "called the Geneva Conventions 'quaint'" nearly two months after a correction in the news pages noted that Gonzales had specifically applied the term to Geneva provisions about commissary privileges, athletic uniforms and scientific instruments.... No one deserves the personal vituperation that regularly comes Dowd's way.... But that doesn't mean that their boss, publisher Arthur O. Sulzberger Jr., shouldn't hold his columnists to higher standards...

It is true that Gonzales does not think the whole Geneva convention is "quaint": he thinks that it is obsolete, and that the restrictions it places keep Americans from doing what must be done by opening the possibility of their being put on trial for war crimes. Given what Gonzales does think of the Geneva Conventions, accusing him of calling them "quaint" seems a very minor sin indeed.

Here is Gonzales in context:

As you have said, the war against terrorism is a new kind of war. It is not the traditional clash between nations adhering to the laws of war that formed the backdrop for GPW. The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians, and the need to try terrorists for war crimes such as wantonly killing civilians. In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (i.e., advances of monthly pay), athletic uniforms, and scientific instruments.

Although some of these provisions do not apply to detainees who are not POWs, a determination that GPW does not apply to al Qaeda and the Taliban eliminates any argument regarding the need for case-by-case determinations of POW status. It also holds open options for the future conflicts in which it may be more difficult to determine whether an enemy forcea s a whole meets the standard for POW status.

By concluding that GPW does not apply to al Qaeda and the Taliban, we avoid foreclosing options for the future, particularly against nonstate actors.

Substantially reduces the threat of domestic criminal prosecution under the War Crims Act (18 U.S.C. 2441).

That statute, enacted in 1996, prohibits the commission of a "war crime" by or against a U.S. person, including U.S. officials. "War cime" for these purposes is defined to include any grave breach of GPW or any violation of common Article 3 thereof (such as "outrages against personal dignity"). Some of these provisions apply (if the GPW applies) regardless of whether the individual being detained qualifies as a POW. Punishments for violations of Section 2441 include the death penalty. A determination that the GPW is not applicable to the Taliban would mean taht Section 2441 would not apply to actions taken with respect to the Taliban...

Posted by DeLong at June 2, 2005 12:24 PM