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.

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.

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.

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

The effort to blur the lines between Guantanamo and Abu Ghraib reflects a deep misunderstanding about the different legal regimes that apply to Iraq and the war against al Qaeda.

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