This is not to condone torture, which is still prohibited by the Torture Convention and federal criminal law.
From John Yoo
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.
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.
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.
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.
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