It has taken longer than some hoped it might, but the US Supreme Court has finally begun to decide cases connected to the war on terrorists, thereby moving along the process of defining the legal limits of armed conflict against such an enemy.

Almost every commentator I?ve read has defined the decisions in the and cases in terms of whether they meant defeat or victory for President Bush and his administration. To me, that?s a shallow way of looking at it, because there is more to cases heard in the Supreme Court of the United States than a simple battle between two sides. The Court plays a much bigger role in the life of the US than the Privy Council, say, plays in the life of Great Britain. The US Government, and others, turn to it as an arbiter of correct legal behaviour almost in the way people used to turn to Emily Post as an arbiter of correct social behaviour away back when.

So it?s a little off-point to think of the Bush administration as having been dragged, kicking and screaming, in front of the Court to be dressed down for its scandalous treatment of detainees. On the contrary, the Bush administration is as interested as anyone else in having the Court define what it can and cannot do, because the rules that do exist were not written with the circumstances of this war in mind.

Where the detention of suspects is concerned, they are in an especial bind. If a terrorist is set free on the grounds that the administration got it wrong legally, the penalty that may have to be paid is huge. The business of a terrorist, after all, isn?t robbing shops, or passing bad cheques, it is the murder of civilians.

The Court is also in a bind ? if they get it wrong (as some commentators say they have done with one of their rulings), they risk opening the door to litigation being used as another tactic in the terrorist?s war against the West.

So these decisions are a delicate balancing act for everyone concerned. The slow pace of movement, the apparent reluctance of the administration to give an inch in the name of the rights of the detainees, the administration?s seeming lack of regard for representations by concerned individuals and groups ? these are short-term concerns that can be confusing for onlookers. They obscure the serious purpose of the proceedings ? getting it right for the long haul of the war on terrorism, and with respect to the large numbers of detainees who may be affected in the future.

These are the significant points of the Court?s rulings: First, it found the 2001 declaration by the Congress did give the President power to detain citizens and foreign nationals, if they are found on a foreign battlefield.

Second, it found that citizens detained as enemy combatants have the right to a fair process under which they can challenge that designation and their continued detention.

Third, it ruled that foreign nationals detained at Guantanamo Bay in Cuba have a right to file lawsuits in US civilian courts to contest their detention and conditions at the base.

This last ruling is what is most often pointed to as evidence of a ?defeat? for the administration. Justice Antonin Scalia, who dissented from that ruling, spoke for many on the other side when he suggested the Court had gone too far, and that it had ensured that the 600 habeas corpus suits that would be filed as a result by the 600 Guantanamo Bay detainees as a result, perhaps in 600 different courtrooms, would amount to the striking of a successful terrorist blow against the US.

Those who disagree with the Court all seem to feel the Justices should have given the administration, during this time of war, the benefit of the doubt in line with the well-known dictum, , or ?in time of war, the law is silent?. I think they?ve missed the point a bit, because having the ability to file a habeas corpus action isn?t the same as winning one.

It is obviously not correct to have people locked away indefinitely somewhere without access to due process, and if such a situation had been allowed to continue, the criticism it provoked would have taken a toll on the country?s morale. What the Court?s ruling does is give Guantanamo detainees access to the process of law. That?s perfectly fair. If such suits were all to be processed by one body, then the effect of 600 legal actions would be manageable. If there were appeals against the decisions of the body, there might then be occasions when the courts would want to give the administration the benefit of the doubt because a state of war existed.

Justice Sandra Day O?Connor, who wrote the majority opinion in , said almost as much in her ruling. ?The Constitution would not be offended,? she wrote, ?by a presumption in favour of the Government?s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided?once the Government puts forward credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence.?

It was also a step in the right direction for the Court to accept that the US is at war with terrorists, and that as a result of Congress?s brief 2001 declaration, it is entitled to take and hold prisoners. One or two of the less-thoughtful members of the political fraternity had suggested, it will be recalled, that the correct response to 9/11 was to get law enforcement to deal with Osama bin Laden as a criminal, as opposed to answering his declaration of war in kind.

However, the Court has not come anywhere near clearing up all the grey areas this war with terrorists has created.

The Bush administration policy on detainees, as announced in February, 2002, is that those held at Guantanamo Bay should be treated ?humanely and, to the extent appropriate and consistent with military necessity, consistent with the principles? of the Geneva Convention. Detainees receive shelter, food, clothing, health care and the right to worship.

On the face of it, this policy goes farther than it needs to. The Geneva Convention does not cover conflict with terrorists. It is not some species of international law that all nations must obey. It is a treaty among nations, voluntarily entered into, that applies only to conflicts between those who have signed on.

Al-Qaeda isn?t a nation, it hasn?t signed the Convention and it most certainly does not obey their rules. Its very purpose ? inflicting civilian casualties by stealth ? violates the core principle of the laws of war, which is to spare civilian lives and limit fighting to armed forces.

The Geneva Convention did apply to the Afghanistan conflict, but the Taliban militia lost its right to prisoner-of-war status because it did not wear uniforms, did not operate under responsible commanders and, like terrorists, systematically violated the laws of war.

One of the reasons nations sign the Geneva Convention is to ensure that their own troops are treated with respect. When the opposite side is in the habit of beheading, or murdering its detainees in some other fashion, the only remaining reason for restraint, really, is a country?s need to maintain its own self-respect.

Do the strict limitations of the Geneva Convention make sense in a war against terrorists? Al-Qaeda operates by launching surprise attacks on civilian targets with the goal of causing massive casualties. The only means of preventing future attacks, which might involve weapons of mass destruction, is by coercing information from detainees that allows for pre-emptive action. How much of a reason is there, therefore, to treat al-Qaeda prisoners under interrogation with the level of care the Geneva Convention demands? Can terrorists be killed out of hand? What are the self-respect limits it is reasonable to place on actions by the military?

In a sense, it would be a shame if the American judicial system were to be put in the position of having to answer this kind of question. Its area of expertise is correcting criminals, not giving soldiers instructions on how to conduct war.

But Abraham Lincoln, in his first inauguration address, said some things, specifically about the Supreme Court, which make great sense in the context of the war on terrorism and the problems it is throwing up.

?I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government.

?And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice.

?At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

?Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.?

Good, isn?t he?