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at least initially, among legal experts across the political spectrum, that the Geneva Conventions did not apply to al-Qaida terrorists in U.S. custody.* The logic was simple: Al-Qaida was not a nation-state and was not a party to the Geneva Conventions.† Its fighters also did not meet the four fundamental requirements for lawful combatant and prisoner of war status in the Third Geneva Convention: operating with a responsible command structure; wearing identifiable uniforms; carrying their arms openly; and obeying the laws of war. Al-Qaida terrorists, by contrast, bombed marketplaces posing as merchants and shop-goers—with explosives under their clothes, in their car trunks, or hidden on children. The nineteen 9/11 hijackers posed as businessmen in suits and commandeered civilian airliners to attack civilians, killing three thousand Americans and citizens from ninety other nations. Such deliberate, surprise attacks on civilian targets demonstrated nothing but contempt for the Geneva Conventions.

I agreed that if the United States automatically accorded the privileges of POW status to every individual captured on the battlefield (or more privileges, such as the right to appeal their detention in U.S. courts), regardless of their compliance with the Geneva Conventions, there would no longer be any incentive whatsoever for enemies to abide by the Geneva rules. Terrorists could have the best of both worlds: all of the advantages of being irregular, unlawful combatants but without any of the consequences. If accorded POW status, terrorists would not be required to give up any intelligence they possessed. Under the Third Geneva Convention, POWs are only obligated to provide name, rank, serial number, and date of birth—the most basic information—when questioned.* That means that even a number of the interrogation methods used every day in police stations across the United States are forbidden. The Geneva Conventions also require that POWs be given access to athletic uniforms, musical instruments, alcohol, tobacco, and the military justice system used by the detaining force.†

Because neither Taliban forces nor al-Qaida terrorists met the unambiguous requirements for POW status, they were not entitled to its special protections. This determination was not “abandoning” or “bypassing” the Geneva Conventions as many have erroneously alleged.23 It was, in fact, adhering to the letter and spirit of the Conventions. President Bush directed that as a matter of policy the treatment of al-Qaida and Taliban detainees would meet a high standard. He saw this not so much as a legal obligation, but as simply the right thing to do.

The plain words of the Geneva Conventions support the position he ordered, as did the written words of his most prominent administration officials. Indeed, in February 2002, William Taft IV, the senior legal adviser to Secretary of State Powell, advised White House Counsel Alberto Gonzales: “The lawyers all agree that al Qaeda or Taliban soldiers are presumptively not POWs.”24 Powell apparently felt strongly enough in this case to put his thoughts in writing. His preferred option, he wrote, entailed announcing “publicly” that “members of al Qaeda as a group and the Taliban individually or as a group are not entitled to Prisoner of War status under the Convention.”25

Though it was clear that the privileges of the Geneva Conventions did not apply to terrorists, there was serious debate about whether the Geneva Conventions applied in any way to America’s conflict with the Taliban regime. The Taliban were the de facto government of Afghanistan, a country that was a party to the Geneva Conventions. However, officials and lawyers in the Justice Department concluded that even though Afghanistan had ratified the Geneva Conventions some years before, the Taliban had not been recognized as that country’s government, either by the United States or by most other countries, nor did they actually control a viable nation-state. Because Afghanistan was deemed a “failed state,” Attorney General John Ashcroft and Justice Department