Friday, April 25, 2008

Don't like torture? Blame Carter.

David Rivkin and Lee Casey have a piece in today's Wall Street Journal discussing the ongoing controversy over US interrogation techniques (among other things) and the more recent push to try the Bush administration's legal counsel for "war crimes."

Of particular interest, I thought:

In truth, the critics' fundamental complaint is that the Bush administration's lawyers measured international law against the U.S. Constitution and domestic statutes. They interpreted the Geneva Conventions, the U.N. Convention forbidding torture, and customary international law, in ways that were often at odds with the prevailing view of international law professors and various activist groups. In doing so, however, they did no more than assert the right of this nation – as is the right of any sovereign nation – to interpret its own international obligations.

But that right is exactly what is denied by many international lawyers inside and outside the academy.

To the extent that international law can be made, it is made through actual state practice – whether in the form of custom, or in the manner states implement treaty obligations. In the areas relevant to the war on terror, there is precious little state practice against the U.S. position, but a very great deal of academic orthodoxy.

For more than 40 years, as part of the post World War II decolonization process, a legal orthodoxy has arisen that supports limiting the ability of nations to use robust armed force against irregular or guerilla fighters. It has also attempted to privilege such guerillas with the rights traditionally reserved to sovereign states. The U.S. has always been skeptical of these notions, and at critical points has flatly refused to be bound by these new rules. Most especially, it refused to join the 1977 Protocol I Additional to the Geneva Conventions, involving the treatment of guerillas, from which many of the "norms" the U.S. has supposedly violated, are drawn.

Well, of course it is the Evil Republicans (TM) who are to blame for this as well, right? Certainly, no self-respecting (Secularly) Holy Democrat (TM) could have committed a Crime Against Humanity (TM) like this.

Now, which Evil Republican (TM) was president in 1977? Let's see here...


...wait, it'll come to me...


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