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Declarations of war have never been a constitutional requirement for military action abroad.
President Bush and his commanders announced early in the conflict that the Conventions applied.
It is also worth asking whether the strict limitations of Geneva make sense in a war against terrorists.
A decision by the Supreme Court to subject Guantanamo to judicial review would eliminate these advantages.
This is not to condone torture, which is still prohibited by the Torture Convention and federal criminal law.
First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.
It is the policy of the United States not to engage in torture, and there are federal criminal laws that prohibit torture.
There was nothing wrong - and everything right - with analyzing a law that establishes boundaries on interrogation in the war on terrorism.
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.
Without territory, it does not even have the resources to provide detention facilities for prisoners, even if it were interested in holding captured POWs.
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.
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.
We can guess that the unacceptable conduct of the soldiers at Abu Ghraib resulted in part from the dangerous state of affairs on the ground in a theater of war.
The Justices are currently considering a case, argued last month, which seeks to extend the writ of habeas corpus to al Qaeda and Taliban detainees at Guantanamo.
Applying different standards to al Qaeda does not abandon Geneva, but only recognizes that the U.S. faces a stateless enemy never contemplated by the Conventions.
That is because the conflict with al Qaeda is not governed by the Geneva Conventions, which applies only to international conflicts between states that have signed them.
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.
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.
American soldiers had to guard prisoners on the inside while receiving mortar and weapons fire from the outside. Guantanamo is distant from any battlefield, making it far more secure.
Punishing abuse in Iraq should not return the U.S. to Sept. 10, 2001, in the way it fights al Qaeda, while Osama bin Laden and his top lieutenants remain at large and continue to plan attacks.
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.
It urges policy makers and the Supreme Court to make the mistake of curing what could prove to be an isolated problem by disarming the government of its principal weapon to stop future terrorist attacks.
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.
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 important to recognize the differences between the war in Iraq and the war on terrorism. The treatment of those detained at Abu Ghraib is governed by the Geneva Conventions, which have been signed by both the U.S. and Iraq.
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.
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 prisoners of war under the Geneva Conventions.
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.
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.
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.
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.
Once the attacks occur, as we learned on Sept. 11, it is too late. It makes little sense to deprive ourselves of an important, and legal, means to detect and prevent terrorist attacks while we are still in the middle of a fight to the death with al Qaeda.
Personally, 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
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.
Our enemy now is a stateless network of religious extremists. They do not obey the laws of war, they hide among peaceful populations and launch surprise attacks on civilians. They have no armed forces per se, no territory or citizens to defend and no fear of dying during their attacks.
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.
The United States of course wants to follow the highest standards of conduct with regard to enemy combatants who follow the rules of war. It should and does follow the Geneva Conventions scrupulously when fighting the armed forces of other nations that have signed the Geneva Conventions or follow their principles.
I think it can be very important for the president to seek congressional approval for war , even though not constitutionally required to do so, in certain situations. It makes sense to go to Congress to signal our national resolve and our willingness to fight to defend other nations or the freedom of their peoples.
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.
It is easy now for critics to claim that the work was poor; they haven't produced their own analyses or confronted any of the hard questions. For example, would they say that no technique beyond shouted questions could be used to interrogate a high-level terrorist leader, such as Osama bin Laden, who knows of planned attacks on the United States?
An American leader would be derelict of duty if he did not seek to understand all his options in such unprecedented circumstances. Presidents Lincoln during the Civil War and Roosevelt in the lead-up to World War II sought legal advice about the outer bounds of their power - even if they did not always use it. Our leaders should ask legal questions first, before setting policy or making decisions in a fog of uncertainty.
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.
Unlike previous wars, our enemy now is a stateless network of religious extremists. They do not obey the laws of war, they hide among peaceful populations and launch surprise attacks on civilians. They have no armed forces per se, no territory or citizens to defend and no fear of dying during their attacks. Information is our primary weapon against this enemy, and intelligence gathered from captured operatives is perhaps the most effective means of preventing future attacks.
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.