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

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

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.

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

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.

In light of the Abu Ghraib prison scandal, critics are arguing that abuses of Iraqi prisoners are being produced by a climate of disregard for the laws of war.

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.