The laws of war, as subscribed to by most civilized nations -- even if adherence can be spotty -- draw an important distinction between uniformed prisoners of war and irregulars who wear no recognizable uniform, the better to meld into the general populace of non-combatants in order to act as spies or saboteurs, blowing up military installations behind the lines.
Once uniformed prisoners are taken, the rules call for them to be treated in a humane manner. Not so plainclothes spies, partisans and irregulars. In part because their activities blur the line between the military and the civilian populace, leading inevitably to more civilian casualties, the rules of war allow such operatives to be summarily lined up against a wall and shot.
Into which category above do the al-Qaida operatives captured after the attacks of Sept. 11, 2001, fall? They are certainly not uniformed prisoners of war, with a right to expect treatment as such under the Geneva or Hague conventions.
These al-Qaida thugs conspire to murder innocent women and children, without the slightest pretext that these are merely "collateral casualties" in a campaign against commonly recognized military targets. To what country can such thugs be remanded for justice? They can be taken out and shot at any time. The laws of war raise no objection.
From 2001 to 2003, when he was appointed a federal judge, Jay Bybee was head of the Justice Department's Office of Legal Counsel. In that role, he was asked for a legal opinion as to what interrogation techniques could be used on al-Qaida captives, in the -- finally successful -- attempt to get them to reveal their additional terrorist plans.
Documents recently released by the Obama administration -- even though heavily redacted -- reveal those interrogations were successful. Real plans for real additional deadly attacks, including one in Los Angeles, were revealed. The attacks could thus be thwarted. American lives were spared.
Mr. Bybee, now a justice of the 9th U.S. Circuit Court of Appeals and a senior fellow at the University of Nevada, Las Vegas Boyd School of Law, read and interpreted the law, as requested. There is no reason to believe he did anything but interpret -- to the best of his legal training -- what the law said. He wrote that using on the al-Qaida prisoners such techniques as simulated drowning, sleep deprivation, cramped confinement in boxes and other tactics do not constitute torture under the law.
Now, President Obama says Judge Bybee could be impeached for writing that 2002 memo.
On Tuesday, Nevada Sen. John Ensign called that prospect "outrageous."
"To call for him to be impeached when he was trying to give the proper legal advice is just ridiculous," Sen. Ensign told the Review-Journal. "You impeach people for ethical violations, for criminal violations. It would be like impeaching a member of Congress because they voted the wrong way."
Sen. Ensign further said he agrees with Mr. Bybee's reasoning.
"This was not torture," Sen. Ensign said. "This is the thing we have to get away from, that this is somehow accepted that it was torture. The United States does not engage in torture. This was 'advanced interrogation techniques.' "
Is that an attempt to draw too fine a line? Well, lines must be drawn somewhere. Our guys refrained from hooking anyone up to an electric generator, or pulling teeth with pliers. We certainly didn't cut off any heads with dull and rusty swords -- a technique our enemies have proudly videotaped themselves practicing ... on non-combatant journalists and charity workers.
How gentle must we be to please Mr. Obama's core peacenik constituency? Should mass murderers be expected to spill their future plans after we put them up in the presidential suite at the Boston Four Seasons and allow them daily consultations with a public defender, all on the U.S. taxpayer dime?
More to the point, does Barack Obama really want to set a precedent that -- within 100 days of a new administration taking office -- officials of the past administration will be subject to trial and imprisonment based on tactics adopted in good faith to combat this nation's murderous enemies?
Where would such a precedent end? Republicans will return to power, eventually. Should they begin, today, writing up indictments for every Obama official who proposes sending troops to Afghanistan, or to combat the Somali pirates? For every member of the Obama administration who plans to violate his or her oath of office to exercise only those powers specifically delegated in the Constitution?