While Taliban fighters had an initial claim to protection under the conventions, they lost POW status by failing to obey the standards of conduct for legal combatants: wearing uniforms, a responsible command structure, and obeying the laws of war.

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.

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.

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.

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.

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.

We can guess that the unacceptable conduct of the soldiers at Abu Ghraib resulted in part from the dangerous state of affairs on the ground in a theater of war.