The Geneva trap: Bush fight[s] terror with terror. Indefinite detention and inhumane interrogation procedures

The Geneva trap: "The Geneva trap | By Sonia Cardenas | 3/30/05 'Foreign Policy In Focus'

The administration has perpetuated the myth, which domestic public opinion and the popular media have accepted, that the Conventions do not entirely protect suspected terrorists or other non-state combatants captured abroad. This myth allowed the administration to invent a new category of detainees outside the purview of international law - "unlawful combatants" - in essence legitimating subsequent mistreatment and abuse.

Most of the controversy surrounding indefinite detention by the United States, for example, revolves around the scope of the Third and Fourth Conventions. On the one hand, the Third Geneva Convention defines "prisoners of war" (POWs) largely in state-centric terms, as members of a recognized state's armed forces who are entitled to special protections. ... On the other hand, the Fourth Geneva Convention extends basic human-rights protections (including the right to a "fair and regular trial") to all civilians in an armed conflict, whether or not they are engaged in hostilities.

The United States has focused exclusively on determining who is entitled to "prisoner of war" status (Third Convention), foreclosing an otherwise viable strategy: to extend the status of "civilians" to all non-state actors fighting the United States. Doing so would not preclude detaining suspected terrorists or restricting their freedom of movement and communication. Indeed, they would not have all of the rights accorded non-hostile civilians, but they would never have to forfeit their rights to due process and humane treatment (Article 5, Fourth Geneva Convention). Once the administration claimed exemptions to Geneva, moreover, it was free to invent the category of "unlawful combatants", further circumventing international legal obligations to protect non-POWs.
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Ironically, the same administration that labels the Geneva Conventions anachronistic has an outdated conception of international human-rights law. Today's human-rights norms are highly inclusive; they guarantee fundamental rights to all human beings simply by virtue of being human, and some of them cannot be suspended under any scenario. Denying suspected terrorists these rights is in principle no different from other exclusionary policies that deprive people of their rights on the basis of race, religion or gender. Bush administration apologists would surely claim that terrorists threaten vital national-security interests, and any temporary suspension of their rights is justified on grounds of self-defense. The problem is that rights are always withheld in the name of a greater good. Violating detainees' rights will not make the United States safer. It is only likely to threaten America's reputation, while engendering greater terrorism and instability.
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... In the fight against terrorism, the Bush administration has simply not been willing to treat all detainees humanely or provide them with due process. It has preferred to fight terror with terror. Indefinite detention and inhumane interrogation procedures are not unintended or isolated cases; they are the sine qua non of the US attempt to fight a global war on terror in an age of internationally recognized human rights. A selective reading of the Geneva Conventions has been the perfect cover for achieving these contradictory, but ultimately untenable, goals.