The Wall Street journal picks up the theme Andy and Mark have elucidating: Thanks to last week’s Hamdan Supreme Court decision and to Pentagon officials who have overinterpreted the meaning of that decision:

”[F]ive years after 9/11, the U.S. is about to give to people who ram commercial jets into buildings many of the same legal privileges and immunities as the average GI. …

“In practice, this means that a captured terrorist such as September 11 mastermind Khalid Sheikh Mohammed is now protected by Common Article 3… forbidding, for example, ‘outrages upon personal dignity, in particular, humiliating and degrading treatment.’

“What exactly constitutes personal dignity and outrages upon it? Who knows, though we bet the ACLU will be more than happy to supply some answers. Our guess is that the concept can be read so expansively as to forbid the U.S. from so much as shouting at captured al Qaeda suspects, never mind ‘waterboarding’ them, as was reportedly done to break KSM. In a war in which actionable intelligence acquired from captives is crucial to uncovering terrorist plots and preventing future attacks, it’s hard to imagine a greater self-inflicted setback to counterterror efforts. ..

“What the world needs is a new legal framework for distinguishing between legal and illegal combatants, but instead we are now heading toward the European model where terrorism is seen as just another fact of life and not a unique evil or grave threat. In Germany, the High Court earlier this year released from custody Mounir El Motassedeq, an accomplice of 9/11 ringleader Mohamed Atta, on a technicality. Germany may be able to afford such legal exquisiteness; as the main terror target, the U.S. and its citizens cannot.“ More here .