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 has never demonstrated any desire to provide humane treatment to captured Americans. If anything, the murders of Nicholas Berg and Daniel Pearl declare al Qaeda's intentions to kill even innocent civilian prisoners.

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.

If the Court were to extend its reach to the base, judges could begin managing conditions of confinement, interrogation methods, and the use of information.

First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.

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. I do not believe that the framers of the Constitution understood the power to declare to mean "authorize" or "commence" war. That does not mean that the separation of powers or checks and balances will not work.

It is the policy of the United States not to engage in torture, and there are federal criminal laws that prohibit torture.