The comments to the post on GPW Article 129 have raised the issue of how many conflicts are in issue when one is discussing the war on terrorism. Here one must be careful to distinguish the broad rhetoric of the war on terrorism from the Administration's specific legal positions. As I understand it, the Administration's legal position has been (at least since early 2002) that the US is involved in distinct armed conflicts vis-a-vis the Taliban and al Qaeda, a position that the Supreme Court at least arguably endorsed in Hamdan (Any comments on that?)
The distinction could have, but ultimately did not, meant something substantive to Taliban detainees. Though the Office of Legal Counsel (OLC) had recommended that the President determine that neither of these armed conflicts satisfied Common Article 2 (CA2) of the Geneva Conventions, the President ultimately agreed (with the State Department) that the conflict iwth the Taliban was an international armed conflict within the scope of CA2. That is, the President determined that the US-Taliban conflict was one between High Contracting Parties, triggering the potential applicability of a wide variety of protections under the third (POW) and fourth (civilian) conventions. This moved the analysis as to the Taliban to the second step in a Geneva Conventions analysis: as to particular persons, are they within a category (such as POW) entitled to particular protections. The President's order concludes that Taliban members as a group were not entitled to POW status, a decision that raises a host of complex substantive and procedural questions. As many have observed, that conclusion ought to have been followed by a discussion of whether Taliban members instead should be categorized as persons protected by various provisions of the Fourth (Civilian) Convention, a possibility that again raises complex substantive and procedural questions. In any event, Taliban detainees ultimately ended up in the same position as al Qaeda detainees.
So what do you think? The issues get awfully complicated. Take Iraq. It certainly seemed a distinct armed conflict to begin with, but is it still so today? Does it matter what percentage of the insurgency is al Qaeda-related? Is there a lack of judicially-manageable standards here suggesting that the categorization issue is a political question?