So where are all those lawyers finding their Geneva Convention loophole? Apparently it’s in Article 5 of Convention IV:
Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.
This section seems mostly designed to prevent captured members of an ongoing resistance from using their rights under the Geneva Conventions to continue to coordinate with and share intelligence with their comrades. If you read it generously, though, it’s carte blanche. If you can say with a straight face that it would be “prejudicial to the security” not to torture your “individual protected person… definitely suspected of or engaged in activities hostile to the security of the State” then, voila! — you’re free to haul out the thumbscrews. Just be sure to treat them “with humanity” (and we all know what humanity is like).
What a nice little loophole. It’s hard to imagine anyone you couldn’t throw to the wolves with this little clause if you just interpreted it this way. After all, you wouldn’t want to torture them in the first place if you didn’t suspect them of activities hostile to the security of your State.
Can you imagine the glee of the lawyers who found this? “Hey! It says here we have to treat our prisoners well unless we suspect them of being hostile to us!” There’s a place on our Supreme Court for brilliant legal minds like that. Because that’s what the Geneva Conventions are all about — protection for those prisoners of war you don’t suspect of being on the other team.
Wouldn’t it be awful if the Dubya Squad had the same sort of contempt for the laws that protect American citizens too?