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

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.

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.

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.

First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.

Declarations of war have never been a constitutional requirement for military action abroad.

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.