The Justices are currently considering a case, argued last month, which seeks to extend the writ of habeas corpus to al Qaeda and Taliban detainees at Guantanamo.
Congress’s definition of torture in those laws – the infliction of severe mental or physical pain – leaves room for interrogation methods that go beyond polite conversation.
It is also worth asking whether the strict limitations of Geneva make sense in a war against terrorists.
That is because the conflict with al Qaeda is not governed by the Geneva Conventions, which applies only to international conflicts between states that have signed them.
It urges policy makers and the Supreme Court to make the mistake of curing what could prove to be an isolated problem by disarming the government of its principal weapon to stop future terrorist attacks.
Human-rights advocates, for example, claim that the mistreatment of Iraqi prisoners is of a piece with President Bush’s 2002 decision to deny al Qaeda and Taliban fighters the legal status of prisoners of war under the Geneva Conventions.
While Taliban fighters had an initial claim to protection under the conventions, they lost POW status by failing to obey the standards of conduct for legal combatants: wearing uniforms, a responsible command structure, and obeying the laws of war.
It has never demonstrated any desire to provide humane treatment to captured Americans. If anything, the murders of Nicholas Berg and Daniel Pearl declare al Qaeda’s intentions to kill even innocent civilian prisoners.
A decision by the Supreme Court to subject Guantanamo to judicial review would eliminate these advantages.
In light of the Abu Ghraib prison scandal, critics are arguing that abuses of Iraqi prisoners are being produced by a climate of disregard for the laws of war.