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I’ve been bashing Politifact.com lately because I think it deserves it. I’ve been critical of South Carolina GOP Sen. Lindsey Graham in the past, but he’s right on this one:

The Geneva Convention did not apply, until 2005, to the war on terror.

Now, he’s off by a year — it should be 2006. However, Politifact has determined that this is only “half-true.”

Graham is right that the Supreme Court decision clarified the law (though he was off by a year when he said the ruling came in 2005 instead of 2006). But he goes too far by suggesting it was not the case before that decision. Some legal experts disagree and say that the prisoners have always been subject to the Geneva Conventions. And we don’t think Graham can so readily state that as a fact. And so we rate his statement Half True.

Who are the only lawyers that Politifact talks to?

  • David M. Crane, a law professor at Syracuse University and one-time Chief Prosecutor of the Special Court for Sierra Leone, an international war crimes tribunal
  • Linda Malone, director of the Human Rights and National Security Law Program at William and Mary Law School
  • Florian Westphal, International Committee of the Red Cross

Of course, at issue is whether our war against al Qaeda is an “international conflict.” One nation involved in the conflict is the United States. The second one is?

There was a ton of commentary at the time of the decision in Hamdan v. Rumsfeld — the case to which Graham is referring to — that no one at the time the Geneva Conventions was ratified thought Common Article 3 referred to stateless terrorists. Former federal prosecutor Andrew C. McCarthy wrote at the time:

In any event, on Thursday, the Senate Judiciary Committee will hold a confirmation hearing for Gonzales. Critics are urging committee Democrats to question the nominee aggressively on the benighted administration policy of no Geneva protections for terrorists whose lives are singularly dedicated to annihilating Americans. Fair game, one supposes, but no senator should be allowed to take up the torch without at least answering a simple question: Do you favor a treaty with al Qaeda?

The inarguable, inconvenient fact is we have no such treaty. Al Qaeda is not and, indeed, cannot be among Geneva’s high contracting parties. It is not a country. The U.S. has for over two decades expressly rejected a treaty—the 1977 Protocol I to the Geneva Conventions—that would have vested terrorists with Geneva protections. I hate to spoil the party, but if we’re going to have such a treaty with al Qaeda and other terrorist organizations, it will have to be a new one.

Under Article III of the Constitution, the consent of two thirds of the Senate’s membership is required before a treaty can be approved. Although we haven’t yet been able to arrange getting President Bush and Emir Zarqawi together for a signing ceremony, getting the senators on record—especially given the caviling over Gonzales—could really get the ball rolling. So let’s ask them. All of them. Plain and simple, so the folks back home know just where you stand: Do you favor a treaty with al Qaeda?

Does anyone think there are 67 yea votes on that one? How about ten? How about one? No. The fact is, outside a lunatic fringe, there’s not a politician in America who would support something so absurd.

So, Politifact found the lunatic fringe and determined that Graham’s statement was “half-true.”

Is this seriously supposed to be unbiased reporting on the “facts?” Politifact found three left-wingers to challenge Graham’s statement. They didn’t talk to a single person who might have backed it up. Perhaps they thought they were being generous in giving Graham a “half-true.”

Politifact is not a neutral referee — don’t forget that.

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