The CA3 standard, though, is much more specific and detailed than the phrase “humane treatment.” Indeed, one might say that the language of CA3 “fleshes out” what is meant by “humane treatment.” So there was no need to go through that “fleshing out” process again.

I was out for a while, but I’ll at least read what you wrote if not comment.

Mirengoff’s point – and I believe the transcript bears this out – is that Sands deliberately conflated Feith’s take on CA 4 – that the Taliban were not to be afforded “proper” POW status – with a general complaint that he would not afford them any Geneva protections, including those under CA3 – which Feith at least implicitly did do.

At the time those issues were discussed, was it ever considered that this would have implications for the interrogation of people who were caught?

Oh yes, sure.

So the fact that they were outside the Geneva Conventions …

Absolutely. Hold on a second—you said outside the …

Sorry—they are not entitled to prisoner-of-war status?

That’s a big difference.

So let’s stick to your distinction, which I recognize. They are not prisoners of war; therefore, they are not entitled to the protections …

… of prisoners of war.

Mirengoff labels Sands’ characterization of that conversation deceptive, and I’m inclined to agree with him. As for the promise to review quotations in context with Feith prior to publication, I’ve no primary sources to reference there, but as I said it makes sense in context and I’ve no reason to doubt Mirengoff on that point.

In his Vanity Fair article, written in support of this book, Sands says:

How had the administration gone from a commitment to Geneva, as suggested by the meeting with Rumsfeld, to the president’s declaration that none of the detainees had any rights under Geneva? It all turns on what you mean by “promoting respect” for Geneva, Feith explained. Geneva didn’t apply at all to al-Qaeda fighters, because they weren’t part of a state and therefore couldn’t claim rights under a treaty that was binding only on states. Geneva did apply to the Taliban, but by Geneva’s own terms Taliban fighters weren’t entitled to P.O.W. status, because they hadn’t worn uniforms or insignia. That would still leave the safety net provided by the rules reflected in Common Article 3— but detainees could not rely on this either, on the theory that its provisions applied only to “armed conflict not of an international character,” which the administration interpreted to mean civil war. This was new. In reaching this conclusion, the Bush administration simply abandoned all legal and customary precedent that regards Common Article 3 as a minimal bill of rights for everyone.

Which again sounds like a dishonest characterization of that discussion to me. The CA3 standard – which again, never came up in the transcript, means “humane” treatment, precisely what Feith did say in that interview, adding that the operational definition of that needed to be “fleshed out.”

The discussion on whether this distinction under CA4 was a wise one, morally, legally or politically is separate from the discussion of the facts within the interview and the way that Sands characterized them in his testimony to the Senate committee.

I’m sorry.

Conceded what point, Lex? That Doug Feith took the position that Middle Eastern detainees could not call on the G.C. for protection because they were not POWs? Or that Feith took the position that Middle Eastern detainees could not call on the G.C. for protection at all, even under Common Article 3? Because the first point is not one I ever disputed.

You say that Common Article 3 was not a part of the Feith-Sands interview discussion. But that is not true. Sands did ask Feith about C.A. 3, precisely because Feith was insisting that Middle Eastern detainees were not entitled to POW status and thus had no rights they could call on in the G.C.

To wit:

I was impressed, but how had they gone from that discussion to the decision that none of the detainees had any rights under the rules reflected in Geneva? Feith seemed surprised by my question and went on to explain. .. In his view, Geneva did not apply at all to Al Qaeda fighters , because they weren’t part of a state and so couldn’t claim rights under a treaty that was only binding on states. Geneva did apply to the Taliban, but by Geneva’s own terms Taliban fighters weren’t entitled to POW status because they hadn’t worn uniforms or insignia. “I said we should not be worming out, wiggling out, of the applicability of the Geneva Conventions to the conflict,” he explained. “So the argument I made in this memo was that … we needed to say that the Geneva Conventions applied as a matter of law to the conflict with the Taliban,”but what I thought was … also important, is the Taliban fighters are not entitled to POW status under the Geneva Conventions.” He referred again to the incentive system that was built into the Geneva Conventions, providing the greatest protection to non-combatants and the least protection to “fighters who don’t obey the rules.” “If we promiscuously hand out POW status to fighters who don’t obey the rules,” Feith offered, “you are undermining the incentive system that was wisely built into the Geneva Conventions.” This was at least arguable, I thought. But what should have been left was the safety net provided by the principles reflected in Common Article 3, including the prohibition on abusive interrogation. But that too went: none of the detainees could rely on Common Article 3 since its provisions only applied to “armed conflicts not of an international character.” To reach this conclusion, which also removed the protections of customary law, required a departure from long-standing practice that treated the rules reflected in Common Article 3 as a minimum that applied to everyone, in all conflicts. Feith might have looked to the official commentary to Geneva (“The scope of the Article must be as wide as possible”) and numerous judgments of the World Court and international criminal tribunals (“There is no doubt that, in the event of an international armed conflict, these rules also constitute a minimum yardstick”) But he didn’t. The upshot was that no one at Guantanamo was entitled to protection under any of the rules reflected in Geneva. …”

This is not changing the topic, Lex. It is bringing in the context that Mirengoff left out and that you don’t know about because you did not read Sands’ book. Mirengoff’s argument is that Sands misrepresented Feith’s position. But, in fact, Sands did not misrepresent Feith’s position.

I think I will leave it at this, because when any argument shifts from the disagreement itself to accusations of “effectively conceding the argument by changing the topic” that tells me that the person one is arguing with does not want to continue the argument but, for whatever reason (I will not speculate on motivation because it’s not fair to do so) prefers not to actually say that, and thus begins to use nonsubstantive rhetorical self-defense strategies to end the argument.

I don’t have any wish to upset you or anger you or challenge your belief system. I like you, I think you’re an interesting, intelligent person, and I have enjoyed our friendly non-political conversations enough that I don’t want to endanger that.

So enough of this for now.