Article V Tribunals

The administration's entire premise of denying detainees an Article V tribunal under the Geneva Conventions rests on a presidential determination that there is no "doubt" as to their status as enemy combatants rather than POWs. The legal cohesiveness of this position rests on whether the president has the power to categorically strip the "doubt" from a detainee's capture. Under now AG Alberto Gonzalez's view, the president has the power to interpret treaties (true), but does this interpretive power enable him to to effectively become a fact-finder in place of a properly constituted tribunal? This seems unlikely.

The categorization proposed by Gonzalez is that whomever is an Al Qaida or Taliban soldier is not a POW. A problem with this formulation is that whether an individual is an Al Qaida or Taliban soldier is by its very nature question of fact, not law. As such, we fall back into Article V's sticky "doubt" language. (Which, I imagine in the view of the treaty framers, is not by accident.)

In fact, during the 1991 Persian Gulf War, the Army Army conducted over 1,200 (p. 578 of the linked report, p. 663 of the pdf) Article V tribunals!! An Army Manual even provides a transcript (Appendix F of link) for a convened tribunal to follow. Why are such tribunals (a way the administration could easily add at least procedural legitimacy) continuing to be tossed aside?