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

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.

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

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

Unlike previous wars, our enemy now is a stateless network of religious extremists. They do not obey the laws of war, they hide among peaceful populations and launch surprise attacks on civilians. They have no armed forces per se, no territory or citizens to defend and no fear of dying during their attacks. Information is our primary weapon against this enemy, and intelligence gathered from captured operatives is perhaps the most effective means of preventing future attacks.

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 effort to blur the lines between Guantanamo and Abu Ghraib reflects a deep misunderstanding about the different legal regimes that apply to Iraq and the war against al Qaeda.