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.

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.

Declarations of war have never been a constitutional requirement for military action abroad. The United States has used force abroad more than 130 times, but has only declared war five times - the War of 1812, the Mexican-American War, the Spanish-American War, and World Wars I and II.

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.

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.

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.