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Either Kmiec is not really a legal scholar, or Newsweek is blowing smoke, or they are both pulling their baloney on Goldsmith out of the place where the sun don't shine.
The Fourth Geneva Convention says precious little about prisoners of war, since that is the subject of the Third Geneva Convention. And Jack Goldsmith's opinion on the Fourth Convention was to state that people who were not citizens of the place where the war was taking place could be treated as illegal immigrants and deported, apparently without permission from the local government (as the Pakistanis and CIA had previously been doing at Kohat).
And he opined that the word "deport" had a different meaning in 1949 than now, so that it wasn't ever really meant to imply that civilians in a war zone who were citizens couldn't be deported, even though that's what Article 49 says explicitly ("Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive."). But just in case, he opined, if a civilian national was to be detained or interned, then they could be transported temporarily (say, from Iraq to Guantanamo or a black site for enhanced interrogation), because they wouldn't have the protected status in Article 49 until they had been charged, so it makes sense not to charge them with a crime.
I find the premature rehabilitation of Jack Goldsmith to be thoroughly repugnant, almost as repugnant as seeing John Yoo publishing in the now increasingly Neocon NYTimes Op-Ed page. It's a black mark on Harvard Law School.
BTW harpie, some additions to your latest timeline: John Bolton, after revoking the U.S. signature on the Rome Statute (May 6th, 2002) declared it the "happiest day of my life." His revocation was around a month after the capture and injury of Abu Zubaydah, who, by that time had been transferred to a black site in Thailand. They were getting ready to, or had started torturing him, with personal intervention from the top, as Kiriakou says they were on the horn to Washington for approval of each belly slap or missed night of sleep, and that was the time of the Torture sessions in the Situation Room.
This partially answers Thomas Dumm who asked before about Bolton, since the reason for removing the signature may very well have been because the Vienna Convention on the Law of Treaties states that a country that has signed but not ratified a convention is bound to uphold it but not enforce it. The Rome Statute explicitly makes systematic or widespread torture a "crime against humanity." It was also Bolton in his Interim U.N. Rep position who argued to the Committee Against Torture in 2006 that Geneva was lex specialis in war and therefore the Convention Against Torture did not apply to the conduct of U.S. military prisons in a war zone, even while simultaneously claiming that just about everybody else was not eligible for Geneva Protections.
Back to trying to catch up on the comments.
