Posted on 04/26/2009 7:29:01 AM PDT by Nevadan
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?
Something tells me this Judge Bybee must be perceived as a proper liberal on the ninth circus, considering how much of the MSM (beginning with the WaPo’s frontpage piece last week) is desperately trying to bail him out and run interference for him.
Nice to see an actual newspaper editorial make a point I’ve been making for a long time: that the Al Qaeda ‘irregulars’ are subject to summary execution under the Geneva Conventions, so even if it’s interrupted by the occasional session of water begin poured up their noses, or sitting in a box with a caterpillar, getting three hots a day (not to mention prayer rugs and copies of the Qu’ran) is better than we are obliged to give them.
I just heard John Mc Cain on Face the Nation and I wanted to barf. He continues to cite the Geneva Convention as a reason not to do what we did with some of the captured terrorists. When is he and some of the like minded pundits going to read the Geneva Conventions. The treatment of POW’s under the conventions applies to uniformed soldiers of Nation States. It specifically excludes non uniformed personnel engaging in hostile acts on the battle field and implies that they may be treated as “spies”. The terrorists that we picked up are not covered by the Geneva Conventions and never have been. The way they treat our men if captured is to torture and kill them. This argument about Waterboarding as torture is madness. I am typing this now so I don’t have to hear the other interview on Face the Nation with Patrick Leahy who based on his past leaking of intelligence ought to be prosecuted.
Water board Obama and all who love him.
Seems to me much of the talk about prosecution of the guys who wrote the “torture memos” is rather rich coming from Congress. Congress wrote the laws which these guys tried to interpret.
It is perfectly obvious to anyone but a congressman that interrogation techniques are found on a spectrum, with polite questioning on one end and the various medieval techniques we think of when we hear the word “torture” on the other. The attorneys were asked to spell out more precisely where along this line American interrogators should stop, given the laws as passed by Congress.
Now Congress is at least to some extent p*ssed off that the attorneys interpreted the law as read, not as Congress now thinks it should have read. If the law is poorly worded and doesn’t spell out precisely enough what constitutes torture, isn’t that the fault of Congress?
The liberals anguished daily over the US casualty figures flowing in from Iraq. We were treated to all sorts of reports about not just the number of brave soldiers who died, but of the thousands who were maimed and severely injured.
Most of those injuries came from roadside bombs and attacks by terrorists posing as civilians.....those attacks were organized by men just like those “interrogated”.
I guess liberals really didn’t care about all those dead soldiers after all.
Not exactly true. Illegal combatants, which is what the terrorists are, can be legally detained and tried under the laws of the detaining State before a constituted court. They have a right to humane treatment while awaiting trial, which can be civil or military and need not provide anything resembling the protections, such as legal counsel, afforded civilians or military personnel of the detaining State, or for that matter legitimate POWs. IOW, it can be a drumhead court which routinely issues sentences of execution in very short order.
I wonder if the Liberals anguished about the 37,000 people who died in the Unuited States last year from Automobile Accidents? Or, did they cheer because it was down 9% from the previous year? I guess they don’t care, because now they are forcing Automobile manufacturers to make cars that will be less safe when involved in wrecks (Light, small with better gas mileage).
Wow. Very good editorial.
I think we are saying the same thing, but they are not covered under the Geneva Conventions which were written to cover rules of conduct between Nation States. Terrorists are not fighting for any Nation State.
According to international law as presently interpreted, there is no group that falls outside the Geneva Conventions. A detainee is either legally a civilian, liable for prosecution for war crimes, or he is a POW and must be treated as such.
I don’t entirely agree with this interpretation, but the courts have been pretty clear that nobody falls “outside the law.”
It seems pretty clear that when the 4th Convention was agreed to nobody really anticipated massive international terrorist groups. It was assumed that only nation-states could engage in extended attacks.
We need rules that address the facts of today’s world. Insisting on forcing terrorists into the categories of criminals or POWs tends to wind up with them having the legal protections of both, which is pretty obviously backward. We need new international rules that are designed to deal with the terrorist threat realistically.
Won’t happen, of course, as the issue is much too political. Too many nations enjoy seeing the USA and other “advanced” nations attacked, even if they don’t admit it. In fact, a good many citizens of those nations enjoy it themselves. There are a lot of Jeremiah Wrights and Ward Churchills running around Europe and N. America.
I don't see this happening in my lifetime. For two reasons:
1) Richard Simmons is more of a fighter than the Michael Steele GOP.
2) MaoObama & the Dhimmocrats are cementing their perpetual hold on power. Watch for a repeal of the 22nd Amendment. Why else would he meet with Chavez? He needed some pointers.
having a real difficult time this past week dealing with the fury I feel over this... absolute gut wrenching fury!
I can’t believe it’s happening, and up to know I haven’t hated this smiling, weak, zero of a President. I can honestly say I have hatred for him.
know = now .
re: Something tells me this Judge Bybee must be perceived as a proper liberal on the ninth circus, considering how much of the MSM (beginning with the WaPo’s frontpage piece last week) is desperately trying to bail him out and run interference for him.
No. Bybee was appointed by Bush.
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