Following White House Counsel Alberto R. Gonzales's January 6 Senate confirmation hearings, conservatives in the media used a series of false claims to defend the attorney general nominee's legal advice to President Bush on whether the Geneva Conventions apply to Taliban and Al Qaeda detainees. Conservatives have repeatedly claimed that the Geneva Conventions apply only to bona fide prisoners of war -- that is, uniformed soldiers fighting for a conventional army. In fact, though the Third Geneva Convention (GCIII) defines a category of detainees called "prisoners of war" (POWs) and lays out specific protections for them, the Fourth Geneva Convention ("Geneva Convention relative to the Protection of Civilian Persons in Time of War," GCIV) outlines separate protections for civilians. As Media Matters for America has documented, legal experts have argued that so-called "unlawful enemy combatants" are indeed entitled to protections under GCIV, albeit more limited ones than those reserved for POWs.
On the January 6 edition of FOX News' The O'Reilly Factor, Bill O'Reilly and his guest, National Review editor Rich Lowry, agreed that the Geneva Conventions apply only to fighters "in uniform," who are "fighting for a nation":
LOWRY: The Geneva Conventions are mid-20th century documents. They were forged with World War II in mind. The idea is that you have, you know, conventional armies clashing together. And the people who are making up that armies -- those armies are conscripts, who haven't really done anything wrong. They're just sort of in the wrong place at the wrong time. They're decent, honorable --
O'REILLY: They're in uniforms. They're fighting for a nation.
LOWRY: Right. And when you capture them, you give them [1960s TV show] Hogan's Heroes kind of treatment.
O'REILLY: Yes, because that's what we want.
LOWRY: Right, and you give them sports fields. And you give them --
O'REILLY: And the difference is what?
LOWRY: The difference is these guys are not the members of the conventional army as envisioned in the Geneva Convention. They are the members of a transnational murder gang that has no respect for any of the laws of warfare.
Media Matters has previously noted O'Reilly repeating this falsehood about the Geneva Conventions.
On the January 6 edition of FOX News' Special Report with Brit Hume, Roll Call executive editor and FOX News contributor Morton M. Kondracke reiterated the "important point" that Gonzales made in his Senate confirmation hearings earlier that day regarding the Geneva Conventions, describing it as a rebuttal "against what the Democrats were trying to say":
KONDRACKE: But the most important point I think he made against what the Democrats were trying to say, is that strict adherence to the Geneva Convention does not apply to Al Qaeda. I mean, after all, what the Geneva Convention says is that you can't interrogate a prisoner of war who's a military person dressed in a uniform. You can't interrogate him.
Moments later, Weekly Standard executive editor and FOX News contributor Fred Barnes concurred:
BARNES: The Geneva Convention does apply ... in Iraq -- to those people in prison there during the war in Iraq -- but not to, as Mort said, Al Qaeda or Taliban people who are held in Guantánamo [Bay, Cuba] or elsewhere. It doesn't apply. Clearly doesn't apply to them. They don't qualify on any of the grounds for being covered by the Geneva Convention.
On the January 6 edition of CNN's Crossfire, departing co-host Tucker Carlson asked Representative Dennis J. Kucinich (D-OH) if he was "aware" that "captured terrorists who are not members of any army" are not protected by the Geneva Conventions:
CARLSON: Are you suggesting that captured terrorists, who are members not of an army -- they're not employees of any state, they're simply independent actors bent on killing civilians -- are they protected by the Geneva Convention? ... The Geneva Convention was not, does not -- was not written to apply to actors like those, you're aware of that?
On January 25, 2002, Gonzales advised Bush to uphold his earlier decision to deny GCIII protections to suspected terrorists captured in Afghanistan, despite the State Department's request that the president reconsider his decision. But the Justice Department memo forming the basis of Gonzales's advice did not specifically address GCIV.
The Justice Department analysis did recognize, however, that "common Article 3" -- so called because the same text appears as Article 3 in all four conventions -- does appear to grant "enemy combatants" certain limited protections. But the Justice Department employed a highly controversial legal argument to conclude that Taliban and Al Qaeda detainees don't deserve even the limited protections of common Article 3. That provision forbids, among other things, "Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture." Common Article 3 applies specifically to "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties," but according to the department's analysis, this provision refers only to civil wars, not conflicts between a state, e.g., the United States, and a transnational group, e.g., Al Qaeda. But this analysis appears dubious since Afghanistan is one of the "High Contracting Parties" to the Conventions.
Bush later amended his original decision, ordering that GCIII would apply to Taliban detainees, but not to Al Qaeda members.
Though a full Justice Department opinion on the applicability of GCIV to "unlawful combatants" has not been made public, a February 2, 2002, State Department legal analysis mentions that "The Department of Justice has opined that the Geneva Convention Relative to the Protection of Civilians in Time of War (Fourth Geneva Convention) does not apply" [p. 4]. The analysis does not elaborate on the Justice Department's legal reasoning for this determination.