Professor Yoo joined the Boalt faculty in 1993, then clerked for Justice Clarence Thomas of the U.S. Supreme Court. He served as general counsel of the U.S. Senate Judiciary Committee from 1995-96. From 2001 to 2003, he served as a deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice, where he worked on issues involving foreign affairs, national security and the separation of powers.
He has been a visiting professor at the University of Chicago and the Free University of Amsterdam. He has received research fellowships from the University of California, Berkeley, the Olin Foundation and the Rockefeller Foundation, and is a visiting scholar at the American Enterprise Institute. Professor Yoo also has received the Paul M. Bator Award for excellence in legal scholarship and teaching from the Federalist Society for Law and Public Policy. He has testified before the judiciary committees of the U.S. Senate and House of Representatives, and has advised the State of California on constitutional issues.
I dunno, clerked for Clarence Thomas, Fellow of the Olin Foundation, visiting scholar at the AEI...I think I'm detecting a trend here. I'm not sure, I'm just saying, he could have an agenda.
So he tells Terry Gross on Fresh Air that (and I'm paraphrasing):
The Geneva Conventions didn't apply to Al Qaeda detainees (have we ever proven that we have any? just asking) because they didn't wear uniforms, and were not state actors.
And as re: The Taliban (loved them when they opened for Santana at Woodstock), They kinda were protected by the Geneva Conventions because they were the de facto government of Afghanistan when we came crashing down on them, but maybe not, 'cause they didn't wear uniforms either.
Well, I'm no lawyer, although oft times I wish I were. But I found this in the text of the 1949 Geneva Conventions, that I think may offer some insight:
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
So, even if the enemy is not a signatory, maybe we have to actually act like we are. Interesting.
Art. 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:[ (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.
So, if you are:
1. being commanded by a leader
2. have a fixed distinctive sign (like maybe arab garb as vs. American Army duds)
3. carrying arms
4. fighting, shooting, etc.
then you are accorded the Geneva Conventions, and all their protection.
And then there's these folks too:
(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.And this:
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
Makes me wonder what the British should have done with any Minutemen they captured. After all, the proto-American revolutionaries likely didn't wear uniforms, but were distinguished from the British by the absence of specific uniforms. And they likely didn't always follow specific commanders, since things were, well, in a state of war. Still, should they have been tortured by the minions of King George (how like today) or should they have been protected by some liberal idea of fair play?
I'm not equating the insurgents in Iraq with The Minutemen, at least, not perhaps until now. Imagine if the French had invaded the US to overthrow the British, and had then stuck around, throwing their weight around, and appointing Prime Ministers and staging suspect elections.
I think we might have gotten cranky, just a bit.