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Unconventional UnwisdomHow the Bush administration is breaking the rules of war.

By Scott Shuger
Posted Thursday, Dec. 6, 2001, at 3:56 PM ET

Most of the discussion of the Bush administration's anti-terrorism reconfiguration of the justice system has focused on whether or not these changes violate the U.S. Constitution. I'm plenty concerned about that, too, but there's another legal standard that the Bushies appear to be flouting—the Geneva Convention.

Consider the plan to try some accused terrorists in military tribunals and wiretap their meetings with lawyers. The Fourth Convention, issued in 1949 and titled "Relative to the Protection of Civilian Persons in Time of War," safeguards "as a minimum" the rights of all "persons taking no active part in the hostilities, including members of armed forces who have laid down their arms" and those removed from combat "by sickness, wounds, detention, or any other cause ..." [emphases added]. Clearly this stricture of international law is intended to protect throughout the course of a war all civilians and all fighters who are put out of action. And it goes on to say that none of these people can be sentenced without trial in a "regularly constituted court" that affords all guarantees, "which are recognized as indispensable by civilized peoples." Surely the rights to an open trial, a ban on secret evidence, and freedom from warrantless government wiretaps are among those guarantees.

The Fourth Convention also requires countries to apply to war detainees the law as it existed at the time of their offenses. Since U.S. courts have generally extended to defendants the protections mentioned in the previous paragraph, it's therefore at least a violation of the spirit of the convention to drop them now.

And what of the 548 civilians who are still being detained unnamed and uncharged in the United States as part of the government's post-9/11 investigation? Attorney General John Ashcroft's steadfast refusal to release any information about them certainly seems to violate the GC's requirement that countries shall "immediately" give out information about detainees so that their next of kin can be notified "quickly." And the GC explicitly states that this information should "make it possible to identify the protected person exactly." Certainly the United States would demand such basic information if any of our troops in Afghanistan were taken prisoner. Therefore it should likewise provide it to Taliban officials now. And once the United States has done this, maintaining its current refusal to inform American lawyers and reporters would be reduced to the nonsense that Mullah Omar is entitled to know things about the U.S. justice system the American people are not.

Perhaps the administration would respond that the Geneva Convention is irrelevant here because it covers wars between nations while the United States' anti-terror campaign is being waged against a rump band that hijacked a country and the criminal gang they hosted. But that misconstrues the GC, which states that its key provisions also apply "[i]n the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties." In other words, it doesn't matter if the Taliban isn't a nation—the GC applies to any land belonging to a country that has signed it. And since both the United States and Afghanistan are signatories, anyone taken prisoner in the course of this war should enjoy its protection.

Both President Bush and Ashcroft have consistently defended their changes to our legal system by citing the demands of war. But they seem to have forgotten that war doesn't just entail special demands that must be met. It also entails special laws that must be obeyed.

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Scott Shuger is a Slate senior writer who spent five years in the U.S. Navy and served overseas as an intelligence officer.
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