Under the Geneva Convention, for example, a POW is required only to provide name, rank, and serial number and cannot receive any benefits for cooperating.

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.

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.

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.

This is not to condone torture, which is still prohibited by the Torture Convention and federal criminal law.

The United States is at war with the al Qaeda terrorist group. 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.

Without territory, it does not even have the resources to provide detention facilities for prisoners, even if it were interested in holding captured POWs.