Congress has created and funded a huge peacetime military that has substantial abilities to wage offensive operations, and it has not placed restrictions on the use of that military or the funds to support it, because it would rather let the president take the political risks in deciding on war. If Congress wanted to play a role in restricting war, it could - it simply does not want to. But we should not mistake a failure of political will for a violation of the Constitution.

There was nothing wrong - and everything right - with analyzing a law that establishes boundaries on interrogation in the war on terrorism.

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.

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

Personally, I do not think that torture is necessary. But it may be the case that interrogation methods that go beyond questioning, but do not arise to the level of torture, may be necessary to get actionable intelligence from high-ranking al Qaeda leaders

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

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.