Feith's Red Herring Posted by David Shorr

Let's get this straight, because Douglas Feith is either still confused or deliberately trying to confuse. The questions of the status and rights of a prisoner of war are separate from the issue of the treatment and interrogation of detainees. POW status relates to whether someone is a legitimate combatant in a war, or a murderous criminal liable to prosecution. The claim that a captured terrorist is not a POW, in itself, is hardly groundbreaking or barely even controversial. You can't prosecute a POW (assuming they acted in accordance with the laws of war); you can prosecute a terrorist (though this poses other dilemmas). You can't torture either one.

This has been a big red herring in the detainee treatment debate. Because POWs do indeed have special protections, the hard-liner sleight of hand is to warn against the danger that the Geneva Conventions (which basically are the laws of war) would somehow wall off detainees from our counterterrorism efforts. The exact point of Common Article Three is that, being common to multiple of the different Geneva Conventions, it establishes minimum standards of treatment for a prisoner of any kind or status. Not to mention the separate Convention Against Torture, to which the United States is a party. So repeat after me: POW STATUS HAS NOTHING TO DO WITH STANDARDS FOR THE TREATMENT OF DETAINEES.

For an excellent and more extensive discussion of these issues by real experts (Elisa Massimino of Human Rights First and Ken Anderson of AU Law School), buy this excellent book -- which has excellent pieces on other issues too -- or just write me, and I'll send a copy of Elisa and Ken's chapter. You could also read one of the two new journalistic books on the subject by ace foreign policy correspondent Jane Mayer or international law expert Philippe Sands. (Having trouble deciding which to get first myself.)

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