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.

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.

There are pros and cons about the policy decision whether to follow the Geneva Conventions in a war where they do not legally apply. Among the pros might be benefits for America's image, its ability to argue in future conflicts that the Conventions should be followed, and training soldiers to follow only the Geneva standards. Among the cons might be greater security and safety for our troops who capture and detain al Qaeda operatives and the ability to gather more actionable intelligence swiftly.

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

There was nothing wrong - and everything right - with analyzing a law that establishes boundaries on interrogation in the war on terrorism.

I do not think that torture is necessary. But it may be the case that interrogation methods that go beyond questioning, but do not arise to the level of torture, may be necessary to get actionable intelligence from high-ranking al Qaeda leaders.

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.