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.
Al Qaeda operates by launching surprise attacks on civilian targets with the goal of massive casualties. Our only means for preventing future attacks, which could use WMDs, is by acquiring information that allows for pre-emptive action.
Under the Geneva Convention, for example, a POW is required only to provide name, rank, and serial number and cannot receive any benefits for cooperating.
The United States is at war with the al Qaeda terrorist group. Al Qaeda is not a nation-state and it has not signed the Geneva Conventions. It shows no desire to obey the laws of war; if anything it directly violates them by disguising themselves as civilians and attacking purely civilian targets to cause massive casualties.
President Bush and his commanders announced early in the conflict that the Conventions applied.
Once the attacks occur, as we learned on Sept. 11, it is too late. It makes little sense to deprive ourselves of an important, and legal, means to detect and prevent terrorist attacks while we are still in the middle of a fight to the death with al Qaeda.
First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.
I do not think that torture is necessary. But it may be the case that interrogation methods that go beyond questioning, but do not arise to the level of torture, may be necessary to get actionable intelligence from high-ranking al Qaeda leaders.
It is important to recognize the differences between the war in Iraq and the war on terrorism. The treatment of those detained at Abu Ghraib is governed by the Geneva Conventions, which have been signed by both the U.S. and Iraq.
Nonetheless, Article 5 makes clear that if an Iraqi civilian who is not a member of the armed forces, has engaged in attacks on Coalition forces, the Geneva Convention permits the use of more coercive interrogation approaches to prevent future attacks.
It is also worth asking whether the strict limitations of Geneva make sense in a war against terrorists.
Declarations of war have never been a constitutional requirement for military action abroad.
This is not to condone torture, which is still prohibited by the Torture Convention and federal criminal law.
Without territory, it does not even have the resources to provide detention facilities for prisoners, even if it were interested in holding captured POWs.
American soldiers had to guard prisoners on the inside while receiving mortar and weapons fire from the outside. Guantanamo is distant from any battlefield, making it far more secure.
There are pros and cons about the policy decision whether to follow the Geneva Conventions in a war where they do not legally apply. Among the pros might be benefits for America's image, its ability to argue in future conflicts that the Conventions should be followed, and training soldiers to follow only the Geneva standards. Among the cons might be greater security and safety for our troops who capture and detain al Qaeda operatives and the ability to gather more actionable intelligence swiftly.
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.
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.
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.
Unlike previous wars, our enemy now is a stateless network of religious extremists. They do not obey the laws of war, they hide among peaceful populations and launch surprise attacks on civilians. They have no armed forces per se, no territory or citizens to defend and no fear of dying during their attacks. Information is our primary weapon against this enemy, and intelligence gathered from captured operatives is perhaps the most effective means of preventing future 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 POWs under the Geneva Conventions.
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.
The effort to blur the lines between Guantanamo and Abu Ghraib reflects a deep misunderstanding about the different legal regimes that apply to Iraq and the war against al Qaeda.
Punishing abuse in Iraq should not return the U.S. to Sept. 10, 2001, in the way it fights al Qaeda, while Osama bin Laden and his top lieutenants remain at large and continue to plan attacks.
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.
