I think you're getting a bit down in the weeds on this issue of conferring POW status to Gitmo detainees and in a way that suggests Holder was at one point a little soft on the Geneva Conventions.

To be clear: I don't think Holder was soft on Geneva because of the POW issue. I think he was soft on Geneva because he explicitly said that Al Qaeda detainees are not entitled to Geneva protections -- the same position advocated by Rumsfeld and, ultimately, the Bush administration:

It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention.

Here's the full exchange - it's clear what Holder is saying:

PAULA ZAHN, CNN ANCHOR: Getting back now to the question of the detainees. Secretary of Defense Rumsfeld has been out front restating the administration's hard line. He says the detainees, the -- quote -- "unlawful combatants are terrorists and should not be entitled to prisoner of war status."

ZAHN: Meanwhile, there are reports that Secretary of State Powell wants the administration to state that the detainees will be treated in accordance with the provisions of the Geneva Convention. Why is that important? And what kind of line will the administration continue to hold?

Joining us now with a law enforcement perspective from Washington, former Deputy U.S. Attorney General Eric Holder -- good to see you, sir. Thanks so much for joining us this morning.

ERIC HOLDER, FORMER DEP. ATTORNEY GENERAL: Good morning.

ZAHN: The president will be meeting with his National Security team this morning to talk about, well, the apparent discord here. Give us a preview of what this discussion might entail. When you have Secretary of State Powell saying, "Let's abide by the Geneva Convention," and then folks on the other side, we are told, saying "Wait a minute. If we hold them to that kind of status, then all they'll be required to give us is their name, rank and file number."

HOLDER: Yes, it seems to me this is an argument that is really consequential. One of the things we clearly want to do with these prisoners is to have an ability to interrogate them and find out what their future plans might be, where other cells are located; under the Geneva Convention that you are really limited in the amount of information that you can elicit from people.

It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war. If, for instance, Mohammed Atta had survived the attack on the World Trade Center, would we now be calling him a prisoner of war? I think not. Should Zacarias Moussaoui be called a prisoner of war? Again, I think not.

He was taking the Rumsfeld line: given the way they have "conducted themselves," they are unlawful combatants, not prisoners of war, and therefore "they are not, in fact, people entitled to the protection of the Geneva Convention."

The tenet of equal right to representation for all being grounded in the concept of fair play and justice even for those morally reviled, one's revulsion for the representation of the corrupt but super-wealthy is itself grounds for application of the tenet. The tenet cannot stand or fall depending on the popularity or influence of the represented at any given time.

Marrying the worthiness of representing an "evil" client with the client's paucity of resources or influence, saying that "evil" cients with an abundance of such are not entitled to the same assumption, is an unsustainable paradox. This is because, if such a moral standard actually took hold, the list of people willing to represent the wealthy evil would be reduced to such a degree as to place them, paradoxically, in the camp most needing the right of equal representation.

You cannot say those deemed "evil" are entitled to representation and fair play, while exempting from the class of things deemed "evil" those entitites that you consider MOST evil by dint of their wealth.

To press the point, many lawyers and law professors rush at the opportunity to represent alleged terrorist detainees, due to the professional prestige and opportunity to make histoical precedent that such opportunities allow. Substituting that incentive with the desire to make money, and do we have a difference worthy of inverting the principle of equal representation?

Bye for now.

It's important because, if we are going to talk context (proximity to September 11) for the comment about prisoners and the Geneva Conventions, it matters when the other statement about government abuses was, relative to the April 2004 watershed event: the broadcast of the Abu Ghraib pictures on April 28, 2004. People may not like to compare the two events, but I would wager both changed many people's thinking just as much.

As for jschultz's comments, there are no people during war who are not entitled to protection under Geneva. None at all. There are differences in the protections offered. jschultz mentioned spies and saboteurs, the only privilege they are denied that POWs are granted is the privilege of sending letters through the ICRC/IFRC.

Actually, despite the best efforts of Douglas Feith and the Reagan administration, we are still signatories of the 1st and 2nd 1977 additional protocols to the Geneva Conventions, although we have not ratified them (Douglas Feith was the primary lobbyist in getting Reagan to send them to Congress with a recommendation against ratification, it's a Israel/Palestine thing). Under the Vienna Convention, we are therefore beholden to obey them, even though we are not required to apprehend offenders. They detail the rights of prisoners in conflicts that are not between two nation states. They are almost the same as those of POWs, something Feith is vehemently allergic to. It is also not true that POWs and other prisoners cannot be interrogated. They can't be coerced or abused.

I, for one, do not forgive Eric Holder his opinions of January 2002, although I do believe it is one item in a mix and will look at the whole mix, especially his recent statements and what he says at confirmation. I was an early opponent to the idea that we needed to immediately decide (as was pushed by the media in the immediate, still in September, aftermath) on how to re-balance civil liberties and security, and therefore also an opponent of the PATRIOT Act. I was pretty vocal about it (although I didn't comment on blogs or usenet about such things then, I wrote perhaps a few hundred letters to the editor between 2000 and 2006 or so, almost never published, the NYT doesn't like my writing much).

Among other things, I was boiling over about it by January 2002, because I had spent days tracking down an article (not)published by a grad student because the IEEE had removed it from their conference proceedings, because they felt it was disrespectful of the President so soon after September 11 (the paper was delivered in conference on September 11). I said as much at a conference, and several people pulled me aside to give me "a word of advice" not to say such things, "one had to be careful." My arguments at the time were that setting the two conditions up in such a way presented a class of optimizations known well in signal processing as "rate-distortion curves". One has to know that one is getting all the civil liberties one can for the current amount of security before one can postulate that any change in one must change the other.

That isn't a legal or political viewpoint, but if logic is the underpinnings of such viewpoints, perhaps it should have been. It is provable, given some pretty common linearity assumptions.