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.

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.

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.

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.

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.

Al Qaeda operates by launching surprise attacks on civilian targets with the goal of massive casualties. Our only means for preventing future attacks, which could use WMDs, is by acquiring information that allows for pre-emptive action.

I believe that the power to declare war is most important in limiting the powers of the national government in regard to the rights of its citizens, but that it does not require Congress to give its approval before the president uses force abroad.