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

Nonetheless, Article 5 makes clear that if an Iraqi civilian who is not a member of the armed forces, has engaged in attacks on Coalition forces, the Geneva Convention permits the use of more coercive interrogation approaches to prevent future attacks.

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.

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.

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

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.

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