[Opinio Juris welcomes Professor Ken Anderson as a guest respondent. Professor Anderson teaches at American University's Washington College of Law. He also is a Research Fellow at the Hoover Institution at Stanford University. He regularly blogs at his Ken Anderson's Law of War blog]

I am in agreement with John’s characterization of the legal and historical-legal status of the category of unprivileged belligerency. I would add just a couple of points on that issue and then use it as a springboard to a slightly broader comment on what appears to be the evolution of the administration’s position on how legally to regard detainees taken in counterterrorism operations.

I confess that I was quite astonished the first time I heard challenges made following 9-11 to the very idea of the legal category of illegal combatant or unprivileged belligerent. It is so long grounded in the laws and customs of war that it was very puzzling to me how anyone could raise a question about the existence of the category, save as a purely strategic attack on holding detainees. As I read further into these arguments, I understood that in part this arose from journalists, lawyers unfamiliar with the law of war, and others who mistakenly believed that the law of war existed in total in the four Geneva Conventions, and perhaps Protocol I. So, for example, an editorial in the Economist a couple of years back announced breathlessly, if ill advisedly, that the terms “unprivileged belligerent” or “illegal combatant” were nowhere to be found in the four Geneva Conventions: well, neither are the term “war criminal” or “war crime,” but of course they have an ancient legal meaning.

The idea in particular that if one flunks the test of the Third Convention, one is thereby a civilian protected under the Fourth Convention makes no sense either historically or as a matter of legal incentives. One has a status if one flunks the test of legal combatancy under Geneva Three. A person who takes active or direct part in hostilities is not a civilian, the person is a combatant. Having flunked the test for legal combatancy under Geneva Three, article 4, the person remains a combatant – but an illegal one. The charge is sometimes made that if the person who flunks Geneva Three is not a civilian under Geneva Four, then that would mean that a person lacked a status altogether. On the contrary, the person who flunks Geneva Three has a very particular status – the status of unprivileged belligerent. It surprises me particularly that the argument would now be raised that illegal combatants are actually civilians under the Fourth Geneva Convention when, as I recall discussions among friends and acquaintances in the prosecutor’s office in the Yugoslavia Tribunal in the mid-90s, such an argument must surely be unavailing in the case of defendants in that tribunal because it would increase incentives to violate the laws of war.

The fundamental reason why these kinds of ungrounded legal arguments have gained much ground in the past couple of years is, however, not simply a lack of knowledge, as in the case of journalists or lawyers not expert in the laws of war. It stemmed from a wrong assertion by the administration that the Geneva Conventions did not apply to the war on terror. This was untenable from the beginning – to announce that the war on terror was a war, but then to announce that the laws of war did not apply. The administration was forced to backtrack – but by then the damage was essentially done, with the result that not just the Bush administration, but the US government, including its military lawyers and others in government, had essentially lost “ownership” of the laws of war. Given the opening of this error, it allowed a wide variety of parties to assert less legally grounded reinterpretations of the laws of war and have them be taken credibly. By the time the administration moved to admit it was wrong, momentum in declaring the meaning of the laws of war had moved outside any precinct of the US government.

Nonetheless, the basic assertion of unprivileged belligerency is correct, insofar as the situation is one of war. The question is not the category of unprivileged belligerency, but instead who is entitled to make such a legal determination and what it means. Again, much criticism has been leveled at the US government for stating that the president or secretary of defense could make such a determination. As a policy matter, I have always agreed that the proper way to resolve these status issues was in accordance with the quick, confined process that the US military had established in its 1990s regulations, calling for a three officer panel in cases of doubt – and at the time, I never had any impression that any human rights group or the ICRC had any doubts as to the validity of those regulations as meeting the obligations of Article 5 of the Third Geneva Convention – certainly those regulations went beyond what the British did in the First Gulf War in holding Article 5 hearings, and I am unaware of any criticism at the time of those hearings. I believe the administration was wrong as a matter of policy not to follow those regulations and instead proceed by designation. Nonetheless, as a strictly legal matter, a literal reading of Article 5 does not require a hearing by a tribunal in every case to determine status – but only in cases of doubt, and it does not, on a strict reading, require that the matter of doubt be determined by a tribunal, either. To say that the administration violated Article 5 as a legal matter was, and is, simply wrong as a matter of the legal text.

If one proceeds by the law of war route in dealing with Al Qaeda detainees, then one ought to proceed as follows: Detainees would be designated as illegal combatants by a hearing and detained; the terms of detention, including interrogation, would be governed by Common Article Three; trial for crimes committed as an unprivileged belligerent would be conducted under Common Article Three in accordance with the customary law minimum procedures found under Article 75 of Protocol I, which article has been acknowledged by the United States as customary law despite its non-acceptance (correct, in my view) of Protocol I – but which is far more minimal in its trial requirements than what the US has put in place in the form of military commissions.

Where things are moving under the Military Commissions Act is different, however, and that Act seems to reflect a general sense that the paradigm is not always war, either practically or legally. The MCA does not use the traditional definition of a combatant – one who takes active or direct part in hostilities – as its fundamental touchstone for liability. It is not especially focused upon combat as such. Rather, the MCA uses definitions of terrorism and terrorist often taken out of domestic anti-terror laws – in particular, concepts such as “material support” of terrorism, and related concepts that, while making much sense as a matter of domestic criminal law, are not grounded in the laws of war. They are getting at quite different forms of conduct that those of combatants, legal or illegal.

The reason for this, quite simply, is that we are collectively coming to understand that much of what we call counterterrorism is not and will not be war. The concepts of the laws of war – grounded in combatancy, legal or not – will not apply very effectively to activities which will often be about conspiracy, material support, financing, sheltering, and so on. At the same time, there is a wide recognition – I hope – that counterterrorism will be as ineffective as it was up until 9-11 if it flips back into the law enforcement-only mode of reactive, post-hoc enforcement. There will be parts of counterterrorism which will be real war, on real battlefields – but it will only sometimes be directed against terrorists as such, and more often, as real warfare, directed against states that harbor terrorists or states that threaten to supply them with weapons of mass destruction. There will also be parts of counterterrorism which will be about genuine law enforcement, Miranda warnings, charges filed, prosecutions in regular courts. But there will also be – and this is what we are struggling to figure out – a broad middle ground of counterterrorism activity which is neither law enforcement (we are not looking to arrest people, but to kill them), nor war (the use of violence does not rise to the legal definition of armed conflict). It includes our questions about surveillance, detention, abduction, targeted assassination, destruction of terrorist property, interrogation, and ultimate release, and many other things. We do not have a worked out body of law to govern this area, either domestically or internationally. This is, however, where some of the most important matters of counterterrorism policy in the future are likely to take place.

I started this post in quite a different place – the longstanding legal category of unprivileged belligerency. I have wound up calling for a new body of domestic counterterrorism law, to address the questions that are not well addressed by the law of war, because, as we are gradually recognizing, forcing the legal paradigm of the laws of war to cover situations that are often not really war does not finally work. The MCA in part begins to recognize this, but in a passive, unstated way – in its definitions of status such as material support, for example. The laws of war work pretty well when applied to actual war (leaving aside the monumental problem that John and Eric have both addressed, which is what happens when you decide that the laws of war are not really reciprocal, and only one side really has to follow them) but they do not work especially well when applied to counterterrorism that is not really war, but something else. It is a mistake to try and reshape the laws of war to fit that something else, and it would be a far better idea to establish something new.

[Opinio Juris welcomes Professor Michael Ramsey as a guest respondent. He is a professor of law at San Diego School of Law and an expert in foreign relations law.]

My thanks to Opinio Juris for setting up this fascinating exchange and for inviting me to participate, and to John Bellinger for taking time to provide such thoughtful posts. As somewhat of an outsider to this area (my principal field is the constitutional law of foreign affairs), I find that I have more questions than answers.

Let’s assume there is a category of people who take active part in combat but are not covered by the Third Geneva Convention (because they fail the test of its Article 4) or by Common Article 3 (because the conflict is “of an international character”). It seems fairly inescapable that there is such a category (whether or not Taliban or al-Qaeda fighters are in it). Unless they are covered by the Fourth Geneva Convention, fighters in this category aren’t protected by the text of the Geneva framework. It also seems inescapable that, prior to Geneva, the extensive protections contained in the Fourth Convention did not apply to irregular fighters (that is, those who would fail the Article 4 test). The Fourth Convention’s text seems unclear on whether it covers such persons, since it covers “civilians” (which might or might not include irregular fighters). Do commentators critical of the U.S. position contend that the Fourth Convention’s signatories in 1949 intended to extend its elaborate protections to irregular fighters, contrary to traditional practice? Is that how the Fourth Convention was interpreted immediately after it was ratified? If not, what theory of interpretation allows us to be so certain of today’s meaning? (And for that matter, even if the intent was clear in 1949, are we certain that treaties’ meanings can’t evolve to adapt to new circumstances, as is often said of the Constitution?) These aren’t meant as rhetorical questions, as I haven’t studied the history of Geneva, but I have also not seen much reliance upon it.

On the other hand, for Mr. Bellinger’s side, if the Fourth Convention does not cover persons in this category, doesn’t that create a strange asymmetry: irregular forces in a civil war have the protections of Common Article 3, but (if the U.S. position is right) irregular forces have no protection at all in an international conflict? Is there any evidence that Geneva’s signatories wanted to give more protection to irregulars in civil wars than otherwise? Is it even plausible that they could have had this intent – what could possibly motivate it? Isn’t the asymmetry better explained either by saying that the Fourth Convention applies to irregulars (which you don’t want) or that the Common Article 3 protections were already understood by Geneva’s drafters to apply in international conflicts as a matter of customary law? If the latter explanation is true, though (and I must say, off the top of my head, it seems pretty plausible), then the Taliban and al Qaeda necessarily have at least the Common Article 3 protections, whether or not that Article itself technically applies to them. And if that is right, didn’t the Supreme Court get it basically right in Hamdan, whether or not it was correct on the “not of an international character” characterization of the al Qaeda conflict? Of course, it may matter for U.S. domestic law whether the protections come from the treaty itself or from customary law, but it should not matter to the United States for international purposes. So I guess I’m puzzled as to how the U.S. can maintain that the Taliban lack the protections of the Fourth Convention without acknowledging a customary law amounting to the substance of Common Article 3 for all fighters (including al Qaeda) in international conflicts.

In sum, for both sides: isn’t it plausible that Geneva’s drafters envisioned a middle ground between your claims – all fighters would get the substance of Common Article 3 protections, in international conflicts from pre-Geneva customary law and in non-international conflicts because Common Article 3 extended it to them; and fighters who complied with the requirements of Article 4 of the Third Convention would get that Convention’s additional protections?

John’s most recent post raises the question of the nature of the “bargain” theory, as he puts it, of the Geneva Conventions:

In separating lawful and unlawful combatants, the Third Convention creates a basic bargain for those engaged in an international armed conflict. Engage lawfully in combat and, if captured, you will receive the comprehensive treatment protections of the Convention. Ignore the laws of war, and you cannot seek the status given to lawful combatants. POW status is perhaps best seen then as an incentive to follow the rules in armed conflict.

I like this theory, but it is worth pointing out that many people do not like it, as it is in tension with the universalistic aspirations of human rights law, and perhaps of the laws of war themselves. It is worth considering whether the bargain theory is really sustainable.

The implicit premise of the bargain theory is that belligerents (including non-state actors) on both sides of a conflict are worse off if they use the most aggressive tactics and weapons at their disposal, than if they engage in mutual restraint. Consider the tactic of dressing like civilians. A military force, especially a guerilla group, can gain much from engaging in this tactic. The soldiers, by disguising themselves as civilians, might avoid being detected until they have obtained a tactical advantage. They also might induce the other side to kill civilians, which may reduce its support among the local population. Also, of course, an impoverished guerilla group saves the costs of purchasing and maintaining uniforms. I believe that the German army, during the Battle of the Bulge, adopted this tactic in order to penetrate allied lines. But regular armies tend to prefer to wear uniforms for a variety of practical reasons, and so dressing like civilians is mainly a tactic of insurgencies and guerillas.

If soldiers on one side only can use the tactic of disguising soldiers as civilians, then that side gains a militarily advantage. So predictably soldiers on the other side would adopt this or similar tactics in return. The result is that neither side will gain an advantage, while the war will be generally more destructive, with more civilians killed as a result of the confusion about who is a combatant and who is not. The laws of war thus prohibit soldiers from disguising themselves as civilians, an effort to give both sides an incentive to choose less destructive rather than more destructive military tactics. This logic can be extended to many of the other rules in the Geneva and Hague Conventions, as well as the general principles of the laws of war.

But if this is true, it necessarily follows that when one side breaks the rules, the other side must respond in kind. In the current conflict, the United States retaliates against al Qaida, and on John’s theory, the Taliban, for their violations of the laws of war, by depriving captured combatants of POW status—which seems more reasonable and effective than responding in kind by dressing American soldiers in civilian clothes, which in any event is prohibited (as well as pointless). The lack of command structure, if that is the case, is also a key point: if there is no command structure, then American forces cannot expect the enemy to reciprocate America’s own self-restraint, as required by the laws of war. So, again, under the bargain theory, there is no reason for the U.S. to extend POW protections to enemy combatants.

The logic extends farther than the position of the American government, however. The bargain theory, as described by John, gives the victim of law-of-war violations (the United States, here) only one, rather weak tool, for retaliation—elimination of POW status, plus the right to punish war criminals if they are captured. Yet the logic of the bargain theory implies that if this tool is too weak, the United States ought to be allowed to do much more. Put differently, if al Qaida and the Taliban have violated their side of the “bargain,” why should the United States comply with its side of the bargain? Why should the United States feel bound by any of the laws of war in the conflict in Afghanistan, including common Article 3 and, for that matter, the traditional law-of-war principles of proportionality and necessity? If the United States—and other countries, too—made clear that they would retaliate against law-breaking states and non-state entities, by refusing to extend any of the protections of the Geneva Conventions to the law-breakers, wouldn’t this threat in the long run reduce, rather than increase, the costs of war, by more effectively deterring belligerents from breaking the laws of war? This is what the bargain theory implies.

Of course, the Geneva Conventions do not permit such reprisals. They give the bargain theory only limited play by restricting the ways that a belligerent can retaliate for law-breaking on the other side. History, on the other hand, shows that tit-for-tat retaliation for violations of the laws of war has been common. If the bargain theory is accepted, the Geneva Conventions are open to criticism, for excessively restricting reprisals, and the effort to interpret them aggressively as reflecting the bargain theory to a greater extent than they explicitly do, can be defended as bringing them into line with historical practice and the moral logic of the bargain theory.

This is, I think, the source of the uneasiness that many people feel about the bargain theory in general, as well as the type of argument that John has made. It also explains why so many people reject the bargain theory and argue that a belligerent must comply with certain constraints regardless of how the other side acts. This kind of thinking makes no sense from the perspective of the bargain theory because it simply gives the other side a license to do whatever it wants, so that civilians will be worse off in the long run. On the other hand, no government seems willing to explicitly endorse the bargain theory all the way down, suggesting that the bargain theory, at some level, is not politically sustainable.

The reason, then, that some advocate treating all captured belligerents as POWs, and the like, is that they implicitly reject the bargain theory and embrace instead a universalistic interpretation of the laws of war, according to which people have certain basic rights regardless of whether they take the bargain. Ironically, John does not reject this universalistic view: he simply argues that those basic rights are more limited than his critics say they are. But, if this is right, then the argument should be about the scope of the bargain theory, and the location of the floor—those rights that one cannot give up no matter how bad one’s conduct—and John cannot expect his critics to accept the bargain theory without further defense.

Consider again the quotation with which I started. The quotation above sounds reasonable (and I believe it is reasonable) but the choice made by, say, a Taliban soldier is either to obey his commander or not obey his commander, which I suspect is not a choice at all. An ordinary soldier cannot be expected to decide to purchase a uniform and wear it in defiance of the orders of his superior, and while his comrades continue to wear civilian clothes. (And what uniform would he buy, anyway?) So it is the Taliban leadership that decides whether to accept the bargain, while the low-level soldiers bear the consequences of the leadership’s choice. Such is always the case in war, but this is another reason why many readers will reject the bargain theory in the hope that, somehow, the universalistic view can be made to stick.

In this post I would like to take issue with the suggestion that the United States invented the concept of “unlawful enemy combatants” to avoid providing protections under the Geneva Conventions to al Qaida and Taliban detainees. I frequently hear the charge in Europe and elsewhere that this term has no basis in national or international law, and I fear that this has become conventional wisdom among critics of U.S. policy. In fact, the distinction between lawful and unlawful enemy combatants (also referred to as “unprivileged belligerents”) has deep roots in international humanitarian law, preceding even the 1949 Geneva Conventions. The Hague Regulations of 1899 and 1907 contemplated distinctions between lawful and unlawful combatants, and this distinction remains to this day. As Professor Adam Roberts told the Brookings Speakers Forum in March 2002, “There is a long record of certain people coming into the category of unlawful combatants— pirates, spies, saboteurs, and so on. It has been absurd that there should have been a debate about whether or not that category exists.”

I frequently hear the question, “Why not consider all captured belligerents, lawful or unlawful, ‘prisoners of war’?” It is not immediately clear why some advocate such a move. Prisoners of war can be held until the cessation of hostilities, and, ironically, many of those advocating for POW status for Taliban and al Qaida forces object to that basic principle. Moreover, I question whether those who insist that the Taliban and al Qaida be treated as POWs have thought through the practical consequences. Do proponents of POW status for al Qaida detainees expect them to be provided with all the benefits accorded to POWs under the Third Convention, despite their failing to follow the laws and customs of war?

More critically, though, the drafters of the Third Geneva Convention were aware that they were not drafting the treaty in a way that would ensure that everyone who took up weapons on a battlefield would receive POW status. To begin with, Common Article 2 of the Conventions limits the application of the vast majority of provisions, including protections to be provided to POWs, to armed conflicts between two or more High Contracting Parties. Thus, POW status is limited to belligerents engaged in international armed conflict. The U.S. Supreme Court has decided that the U.S. conflict with al Qaida is governed by Common Article 3. Because the Court has found that the conflict with al Qaida is not one between nations, but instead a Common Article 3 conflict, al Qaida detainees are not entitled to POW protections under the Third Convention. This point has been recognized by posters earlier this week, such as Marko.

Moreover, Article 4 of the Third Convention affirms the long-standing distinction between lawful and unlawful combatants because it limits “prisoner of war” status to lawful combatants, such as members of the regular armed forces of a Party to the Convention. The underlying concept here is simple –unlawful combatants should not be provided combatant immunity during wartime, and should be held criminally accountable for their acts of war. By contrast, AU Professor Robert Goldman explains that lawful combatants have combatants’ privilege, which “immunizes members of armed forces from criminal prosecution by their captors for violent acts that do not transgress the laws of war, but might otherwise be crimes under domestic law.”

An examination of the nature of al Qaida and its members results in the conclusion that they are not entitled to POW status under Article 4. Al Qaida members are not members of the armed forces of a party to the Geneva Conventions, meaning that they are not entitled to protection under Article 4(A)(1). Al Qaida has also failed to adhere even to the most fundamental tenets of the laws of war—including the critical need to maintain distinction between civilian objects and military objectives—and have blended into the general population, deliberately choosing not to wear fixed distinctive signs or carry arms openly. Under such circumstances, the United States is correct in denying al Qaida fighters the protections owed prisoners of war.

Although most international legal scholars agree that al Qaida detainees are not entitled to POW status, I recognize there is more debate regarding the status of the Taliban detainees. The Taliban did not display the indicia of regular “armed forces of a party” for purposes of Article 4(A)(1). The armed forces of Afghanistan ceased to exist as such with the dissolution of former President Mohammad Najibullah’s armed forces in the mid-nineties, and were replaced by a patchwork of rival armies. Although the Taliban were the most powerful of these rival armies at the time of the U.S. invasion, it is does not appear that they ever rose to the level of the official armed forces of Afghanistan. Nor were they “regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power,” entitled to POW protection under Article 4(A)(3). The Taliban do not possess the attributes of regular armed forces, as they do not distinguish themselves from the general population, or conduct their operations in accordance with the laws and customs of war.

The Taliban is better conceptualized as a militia belonging to a Party to the conflict, which would be eligible for POW protection under Article 4(A)(2) if they used a command hierarchy; wore a uniform or distinctive sign; carried arms openly; and observed the laws and customs of war. The Taliban, however, fail to meet at least two of these conditions: specifically, the Taliban do not distinguish themselves from the general population, nor do they obey the laws and customs of war. Contemporary news reports from the Allied invasion of Afghanistan indicate that the Taliban dressed like civilians, and in fact used this similar dress to blend into the civilian population to evade capture. Worse still, they have targeted and continue to target civilians as such in violation of the laws of war, having adopted suicide bombing techniques similar to those used by al Qaida. These types of transgressions explain why the United States believes that Taliban detainees do not enjoy POW status under the Third Convention.

Assuming that the Taliban were the armed forces of Afghanistan, however, they still do not qualify for POW status because they fail to meet many of the fundamental criteria for POW status under the Third Convention; specifically, the Taliban lacked the command structure, distinctive uniforms, and compliance with the laws and customs of war which characterize regular military forces. Some have argued that these additional factors would not preclude POW status under Article 4(A) (1) because that provision omits the list of requirements found in Article 4(A) (2). This is a difficult question, but as Jean Pictet’s commentary on the Third Convention explains, it seems the drafters of the Convention had an expectation that the armed forces of a party would generally meet the requirements contained in Article 4(A)(2), and it’s unlikely they envisioned granting POW status to groups that openly flout these requirements.

In separating lawful and unlawful combatants, the Third Convention creates a basic bargain for those engaged in an international armed conflict. Engage lawfully in combat and, if captured, you will receive the comprehensive treatment protections of the Convention. Ignore the laws of war, and you cannot seek the status given to lawful combatants. POW status is perhaps best seen then as an incentive to follow the rules in armed conflict. It also is a way to protect civilians more effectively: when combatants masquerade as civilians to mislead the enemy and avoid detection, civilian suffering increases as a tragic consequence of the failure of these combatants to adhere to the fundamental law of war principle of distinction between combatants and the civilian population.

Long before the war against al Qaida began, the United States forcefully insisted that this incentive to follow the rules remain strong by limiting these extensive treatment protections to those who generally follow the rules of warfare. President Reagan decided not to submit Additional Protocol I of the Geneva Conventions to the Senate for ratification in part because he feared that the treaty contained a disincentive to follow the laws of war by extending combatant status in certain cases to those who do not follow the rules. As former Department of State Legal Adviser Abe Sofaer explained, “Inevitably, regular forces would treat civilians more harshly and with less restraint if they believed that their opponents were free to pose as civilians while retaining their right to act as combatants and their POW status if captured.”

I believe that the bargain of the Third Convention works: follow the laws of war to gain their robust protections and privileges. Those who believe in the rules should insist that incentives to follow those rules not be weakened.

I wanted to add a final thought about the recent Israeli Supreme Court decision in Public Committee against Torture in Israel v. Israel, where it has been reported that the Court concluded there was no category of individuals labeled unlawful enemy combatants. That is not quite what the court held. Instead, the Court held that combatants not in regular armies or militias meeting the requirements of Article 4(A)(2) of the Third Convention were in fact civilians, who lost their comprehensive protections against attacks, “for such time as they take a direct part in hostilities.”

To begin with, it’s important to stress that the Israeli Court largely agreed with our views regarding treatment of terror groups like al Qaida. We agree with the Court that these types of combatants were not entitled to protection from attack regardless of their categorization, nor were they entitled to prisoner of war status if detained. The Court did conclude that Article 51(3) of Additional Protocol I was customary international law, which limited the circumstances in which a “civilian combatant” could be considered a legitimate military target. While we agree that there is a general principle of international law that civilians lose their immunity from attack when they engage in hostilities, we disagree with the contention that the provision as drafted in AP I is customary international law. In fact, the Israeli Court’s opinion appears to recognize that point inadvertently by highlighting the lack of international consensus regarding the meaning of both “for such time” and “direct part in hostilities.”

More centrally, though, most of the sources cited by the Court support our contention that “unlawful enemy combatant” is a category of combatant, distinct from civilians, recognized under international law. Kenneth Watkin, Richard Baxter, Jason Callen, Robert K. Goldman , and Michael Hoffman, all of whom the Court cites, agree that unlawful combatants exist as a legal category, although they may disagree somewhat with us and each other about who qualifies for membership in such a group, and what the legal consequences are, such as whether unlawful combatants are entitled to protection under the Fourth Convention. My point here is that even those that disagree with us as to the legal framework for detaining al Qaida and Taliban detainees should acknowledge that we are on legally firm ground in using this construct as the basis for our framework.

In closing, my sense is that the insistent opposition to our use of the term “unlawful combatant,” despite its clear lineage in international law, is motivated by a fear that acknowledging this category might place the detainees in a legal black hole. While it certainly could be the subject of a policy debate whether we should grant POW status to detainees not legally entitled to it, saying that the Taliban and al Qaida detainees are not criminals on the one hand, nor POWs or protected persons on the other does not mean they do not have significant legal protections. Following the Supreme Court’s decision in Hamdan, all detainees in the conflict against al Qaida and the Taliban must be treated in accordance with Common Article 3 of the Geneva Conventions. They are also protected by the blanket prohibitions on torture and cruel, inhuman or degrading treatment or punishment found in U.S. law. And the Department of Defense recently promulgated a new directive on detention operations and a field manual governing interrogation that provide clear direction to the U.S. Armed Forces regarding compliance with these important norms. Nevertheless, critics prefer to strain to force the detainees to fit into the more traditional legal categories of common criminals or POWs. I am more inclined to agree with the conclusions of the OSCE Rapporteur on Guantanamo, Anne-Marie Lizin, the President of the Belgian Senate, that there is “incontestably some legal haziness” regarding the legal status of individuals captured in the course of military operations against international terrorists and that further legal work needs to be done to clarify the status of these kinds of combatants.