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.

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.

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?

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.

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.

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.

Declarations of war have never been a constitutional requirement for military action abroad.

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.

President Bush and his commanders announced early in the conflict that the Conventions applied.

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

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

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

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.

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.

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.