[Updated] NO UNDERMINING THERE: New York Times' Douglas Jehl and Neil Lewis go for another Gotcha! attempt a propos the legal status of detainees at Abu Ghraib:

Presented last fall with a detailed catalog of abuses at Abu Ghraib prison, the American military responded on Dec. 24 with a confidential letter to a Red Cross official asserting that many Iraqi prisoners were not entitled to the full protections of the Geneva Conventions.

The letter, drafted by military lawyers and signed by Brig. Gen. Janis Karpinski, emphasized the "military necessity" of isolating some inmates at the prison for interrogation because of their "significant intelligence value," and said prisoners held as security risks could legally be treated differently from prisoners of war or ordinary criminals.

But the military insisted that there were "clear procedures governing interrogation to ensure approaches do not amount to inhumane treatment."

In recent public statements, Bush administration officials have said that the Geneva Conventions were "fully applicable" in Iraq. That has put American-run prisons in Iraq in a different category from those in Afghanistan and in Guantánamo Bay, Cuba, where members of Al Qaeda and the Taliban have been declared unlawful combatants not eligible for protection. However, the Dec. 24 letter appears to undermine administration assertions of the conventions' broad application in Iraq.

Jehl and Lewis base their argument in a small loophole they find in the fourth Geneva Convention, a loophole they downplay accordingly.

The way I see it, that's a false contradiction. According to the Third Geneva Convention relative to the Treatment of Prisoners of War [NOTE: link not working any longer, try this instead]-the one which must be applied in order to decide whether a combatant is legal and therefore protected by POW status, or not- anyone captured who doesn't fulfill the conditions to be considered a legal combatant (pertaining to an established military chain of command; wearing fixed distinctives recognizable at a distance; carrying arms openly; and conducting their operations in accordance with the laws and customs of war) isn't legally entitled to any of the protections that the conventions establish for lawful combatants.

So, determining that detainees who don't fulfill the conditions are not entitled for the full protections of the GC is not, as Jehl and Davis imply, that the Conventions are eschewed, but precisely the opposite: that they are fully applied. Which is exactly what the confidential letter from the American military to the Red Cross they refer to was saying.

Neither does it "put American-run prisons in Iraq in a different category from those in Afghanistan and in Guantánamo Bay, Cuba, where members of Al Qaeda and the Taliban have been declared unlawful combatants not eligible for protection," as the NYT reporters write, because the rule for Gitmo and for prisons in Iraq is the same, and a result for the strictest application of the Geneva Convention: lawful combatants=POW status and legal protections; unlawful combatants=no protection.

It's been almost two decades since I finished law school in Spain, and have been in corporate management and consulting ever since, but I haven't forgot the framework of the legal logic.

UPDATE: If you have a subscription to WSJ Online, read this article by Douglas Feith in today's issue.