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Glenn, it is quite clear that Zahn was asking about whether or not these guys would be POWs by her allusion to only being required to state name, rank and serial number. I think Holder was (at least) clearly responding to that question. I think most people can agree that terrorists should generally not be given POW status as they blatantly and purposely violate the rules of war.
Now, you infer from his statement a stronger assertion that such captured people are not covered by any of the GCs at all. I agree that when removed from the context of the question, his statement does clearly say that. However, I would be reluctant to hang my hat on a single sentence in the midst of a TV interview when the interviewer and intended audience are lay people rather than legal scholars. If you have other evidence that backs up that this is truly Holder's view on the GCs wrt al-Qaida, then I'd be much more comfortable agreeing with your conclusion.
Now let's suppose for the sake of argument that you are indeed correct that Holder doesn't think such people deserve any of the rights and privileges under the GCs. We've had several different rulings (Yugo ruling, Hamdan, etc.) that have said that that GCs cover everyone in a conflict (when the GCs govern) -- that is that any captive falls under the categories of one of the GCs when the GCs apply.
My question to you and other legal scholars, though, is has it been clearly decided that the GCs (that we have ratified) legally apply to and govern our conflict with al-Qaida? I'm asking because I don't actually know the true answer.
Al-Qaida is clearly an international organization that is at declared war/conflict with us (and us with them) that is not a signatory to the 4 basic GCs. Furthermore, they neither accept nor apply the provisions of the GCs in their own conduct. Therefore, it seems likely to me that members of al-Qaida are not covered by the GCs at all because the GCs do not apply to our conflict with them as spelled out in common article 2:
"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."
The last sentence conditions our being bound by the GCs on whether our enemy accepts and upholds the GCs. Since they do not, then it seems to me that we are not bound to uphold the GCs with respect to them.
So what would this mean in practice? Well, under the 4th Geneva convention we would still have to protect prisoners whose status (i.e. - membership in al-Qaida) was questionable or disputed until that question was answered by a well constituted court or tribunal. But, if someone freely claimed membership in al-Qaida or a tribunal found that they belonged to al-Qaida, then, in my view, the GCs no longer apply to that person. At that point, I think such people would be governed by other law. For example, the US could pass laws that specifically deal with how such people are to be handled, etc., so long as they were deemed constitutional, etc.
My primary point though is that a strong argument can be made that at that point the GCs no longer bind our actions against such people.
