...The reasons to deny Geneva status to terrorists extend beyond pure legal obligation. The primary enforcer of the laws of war has been reciprocal treatment: We obey the Geneva Conventions because our opponent does the same with American POWs. That is impossible with al Qaeda. 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. Without territory, it does not even have the resources to provide detention facilities for prisoners, even if it were interested in holding captured POWs.

It is also worth asking whether the strict limitations of Geneva make sense in a war against terrorists. 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. 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. 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.

This means that the U.S. can pursue different interrogation policies in each location. In fact, Abu Ghraib highlights the benefits of Guantanamo. 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. American soldiers had to guard prisoners on the inside while receiving mortar and weapons fire from the outside. By contrast, Guantanamo is distant from any battlefield, making it far more secure. The naval station's location means the military can base more personnel there and devote more resources to training and supervision.

A decision by the Supreme Court to subject Guantanamo to judicial review would eliminate these advantages. 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. 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. Not only would this call on the courts to make judgments and develop policies for which they have no expertise, but the government will be encouraged to keep its detention facilities in the theater of conflict. Judicial over-confidence in intruding into war decisions could produce more Abu Ghraibs in dangerous combat zones, and remove our most effective means of preventing future terrorist attacks.