The ACLU is asking the courts to strike down the law Congress just passed (and the President signed) about the military’s interrogation of captured terrorists. They say the law allows interrogations and military trials that violate cherished traditions and civil liberties. Now, it is natural that anytime the American government passes a law limiting civil liberties – even if it is just for terrorists – it causes unease. But the broader issue here is what limits we put, voluntarily, on ourselves in the war against terrorism and that matters because to some extent, inevitably, those limits may provide comfort to our enemies.

Historically, this is an old debate. On one extreme Attila, Genghis Khan, and Stalin put no limits on war. They would have murdered or enslaved the entire population of Iraq, both the innocent and guilty, to win the war. On the other extreme – more honored in the breach than in the practice – is the view you only make war on enemy solders. Somewhere in between is the view we took in World War II when we decided bombing cities, factories, and oil refineries was acceptable – even with the inevitable harm to civilians – because it was necessary to destroy the Germans’ ability to wage war.

This, in a way, is the debate we are having now and here’s how Congress set the limits:

• The new law only applies to non-citizens who are declared “unlawful enemy combatants.” Enemy combatants is defined as those who fight against us and those who support them.
  
• ‘Enemy Combatants’ will not be granted the same civil liberties as American citizens; they can be ‘detained’ and tried by military courts.
  
• And the President is not allowed to authorize any interrogation technique that amounts to a war crime – torture, serious bodily injury, sexual abuse, rape and biological experiments are prohibited.

In other words, a captured terrorist comes up short on civil liberties but he won’t be tortured either. Critics, like the ACLU, say that’s not good enough, that America should maintain high legal standards to send a message to the rest of the world, which is a noble sentiment. And in a better world interrogation laws and military tribunals wouldn’t exist. But, there is also no doubt granting terrorists more civil liberties would provide them a help and comfort the current law denies.

So the question is, is giving our enemies greater comfort a rational act? Or is it trying to fight a war as if it is not a war at all? As if this whole mess is an inconvenience which we hope to put behind us with as few nettlesome disruptions as possible? The News & Observer recently carried a story about a sniper who wounded a Marine in Anbar province. Our soldiers were under orders, in effect, not to shoot back unless they could target the sniper without harming civilians. They couldn’t, so they didn’t shoot back. The problem is this makes life a lot safer for snipers – just as giving terrorist the same civil liberties as American citizens may help them.

Boiled down to its starkest form this dilemma leaves us between the proverbial ‘rock and a hard place:’ We have soldiers fighting terrorists on battlefields in Iraq. When we try to limit the cruelty of war at the same time we increase their risk.

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