Oh, absolutely.
Sorry, but POW just doesn't work. You really have to stretch to get the whole mess defined as a "war" in the first place, despite rhetoric. And if not...
Yer honor, ladies an' gentlemen of the jury,My client is an instructor and teacher in religious matters. Having heard the Call of the Lord to put down his Earthly goods and go minister to the souls of the people of Afghanistan, he was about his usual haunts and affairs [i.e., advanced instruction in woman-beating] when to his dismay he heard that armed strangers were abroad in the countryside.
Taking up arms in support of his friends, neighbors, and spiritual dependants, he went abroad to assist in defense against the invaders, who were going about, murdering and despoiling at their pleasure...
All of which happens to be true, for large enough values of "true"; better, it's all based on legal defenses that worked in the past.
The Geneva Convention is just the tip of the iceberg. I'm not sure that any of the ordinary legal conventions of the West even have anything bad to say about those folks. But to the extent there is anything, either they're "unlawful combatants" rather than POWs, or they don't fit the Convention(s) at all, and can only be considered under color of local law. U.S. law? Hardehar. Afghani law? Is there any? The U.S. is forbidden by the Constitution to institute ex post facto laws; is it permitted to enforce such laws for the benefit of a third party? Saudi law? What gives them jurisdiction? The offenses (if any) did not occur within their borders. Egyptian law? Same question -- and on and on.
And as you point out, it's most uncharacteristic of GWB to fail to be on top of the PR spin on something this large. Unlike some here, I take that to mean that the questions involved are hard, and the answers aren't all in yet, rather than automatically adopting the "dumber than dirt" hypothesis.
But on point, if there is one: Either they're "unlawful combatants", in which case we're being nicer than we're required to be, or the Geneva Conventions don't apply at all -- and if the latter, they're being held in durance vile without legal justification and must be released. And if they must be released, the whole effort is brought into question; and if the whole effort is in question, we have no defense against the bastards, and might as well resign ourselves to daily or hourly reports of murderous attacks. Because if allowed to do so, they will attack with intent to do murder -- they say so themselves.
"The Constitution is not a suicide pact." The guy who said that had an agenda I don't much agree with, but the notion itself is true. To the extent the Geneva Conventions constitute a suicide pact, I don't mind their abrogation too much. Hm. It occurs to me to wonder: Does Britain hold IRA prisoners as POWs under the Geneva Conventions? If not, why not?
As for getting away with it -- fortunately or unfortunately, depending on your point of view, we look to be able to get away with most anything we want to for the foreseeable future. The Verdict of History doesn't concern me overmuch. At the moment, I'll settle for having a history the future can pass judgement on, OK?