The news that continues to filter out about the prison abuses just seems to get more horrific.

There seem to be SO many issues surrounding our detainment of prisoners in the Wars on Terror, Afghanistan, and Iraq.

Right now there is all this press about the abuses to the Iraqis.
Concerns have been raised about Gitmo and the tenuous legal position of the U. S. in its designation of "enemy combatants" who don't merit treatment as "prisoners of war."
Plus I've wondered for some time what is going on with those high ranking prisoners of the war on terror who have never appeared at Gitmo. I remember reading at one time that there was speculation that we had taken them to Syria, a land with little respect of human rights, so that we could interrogate them without impunity. I don't know if this is true or not, but I wonder what might start to leak out now that attention has been turned to our treatment of prisoners.

The administration has argued that it can treat the Gitmo prisoners differently because of precedents in World War II and other American wars. They argue that this is a war power of the President.

But there is a very serious problem here.

I would be able to entertain the notion that there are special powers granted to the government, particularly the military and the executive branch, in a time of war. But the President currently has no legal grounds to execute his war powers. Despite the rhetoric, we are not in a state of war. Yes, we are in a de facto war, but we are not in a de jure war. It takes two thirds of the U. S. Congress to place us in a state of war and to grant the President, the executive branch, and the military war powers. It is a stringent test because we don't want to easily grant those powers. And according to our Constitution they can't just be assumed, even in a time of crisis, they must be granted.

This has been a problem for me since Operation Desert Storm. I thought then that we needed an actual Declaration of War in order to keep the legal parameters clear. And it is even moreso the case in the War on Terror. The government has assumed many powers that are not within their purview without a Declaration of War. After 9/11, if we were going to engage in war, then we needed to declare war -- follow the rule of law.

Of course, some ask who we were supposed to declare war on. One would only ask that question if trapped in a modernist worldview that views the world as a bunch of competing nation-states. However, war existed long before nation-states existed and will continue to exist long after. In this postmodern world there are international organizations that function much as the modern nation-state and many international organizations (corporations, religious groups, terrorist organizations, charities, UN agencies) who wield great influence and sometimes great power. Al-Qaeda is an entity and could have been the object of a Declaration of War.

That last paragraph was really a tangent. My main point is that we need to be upholding the rule of law. So we should follow our own laws. The administration is currently exercising powers that it cannot legally execute without a Declaration of War.