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.

An American leader would be derelict of duty if he did not seek to understand all his options in such unprecedented circumstances. Presidents Lincoln during the Civil War and Roosevelt in the lead-up to World War II sought legal advice about the outer bounds of their power - even if they did not always use it. Our leaders should ask legal questions first, before setting policy or making decisions in a fog of uncertainty.

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.

President Bush and his commanders announced early in the conflict that the Conventions applied.

Nonetheless, Article 5 makes clear that if an Iraqi civilian who is not a member of the armed forces, has engaged in attacks on Coalition forces, the Geneva Convention permits the use of more coercive interrogation approaches to prevent future attacks.

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.

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.