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.
If the Court were to extend its reach to the base, judges could begin managing conditions of confinement, interrogation methods, and the use of information.
Applying different standards to al Qaeda does not abandon Geneva, but only recognizes that the U.S. faces a stateless enemy never contemplated by the Conventions.
We can guess that the unacceptable conduct of the soldiers at Abu Ghraib resulted in part from the dangerous state of affairs on the ground in a theater of war.