Gunning for Gonzales: the Left will assail the attorney general-designate on detainee policy; he, and we, should stand firm

National Review, Dec 31, 2004 by Lee A. Casey, David B. Rivkin, Jr.

Few of the critics, however, have chosen to wade through the memo's 50 single-spaced pages of text, dozens of citations, and 26 footnotes to contest the substance of the OLC's work. Rather, the Left has expressed outrage that the opinion was requested at all--as if asking what conduct is legally punishable as "torture" constitutes an endorsement of its use. Of course, the most pernicious--and baseless--accusation is that this memorandum, along with Gonzales's earlier position on the application of the Geneva Conventions, led to the abuses at Abu Ghraib by creating a "permissive climate." Although this charge is rebutted by the final report of the Schlesinger Commission (established to conduct an independent review of the abuses at Abu Ghraib and alleged abuses elsewhere), it remains an article of faith among the administration's opponents.

Some of this is clearly motivated by partisan politics, but there is much more than that at work here. The administration's most determined opponents object to the fact that the United States has refused to accept Protocol I when most other countries have accepted it, and that the American government maintains a definition of "torture" more restrictive than the norm propounded by international advocacy organizations such as the International Committee of the Red Cross, which effectively considers torture to be any coercive method of interrogation designed to break down the prisoner's resistance, regardless of physical or mental impact.

The reasons for this run right to the San Andreas fault of political philosophy. For the past 400 years or so, the global organizing principle has been one of consent. Nation-states, being equally sovereign and independent actors, can be bound to legal obligations only to the extent that they have consented to be so. The Bush administration has accordingly taken the position that the United States is not bound by new requirements for the treatment of unlawful combatants, such as those in Protocol I, because, as a sovereign and independent state, it has not agreed to be.

Its opponents, however, believe that these requirements are "universal" and applicable to all states whether or not they have assented to the treaties, or particular interpretations of treaties, that originally established the requirements. They posit this universalism as a new and better super-national organizing principle. Indeed, for decades, international activists and academics have argued that the traditional system of independent nation-states is inadequate to ensure global peace and justice. In the human-rights area, they claim states are no longer permitted to "opt out." This includes the United States on issues such as the death penalty, the use of military force without U.N. approval, and the treatment of detainees.

It is no coincidence that American democracy developed when contract theories of society and government were intellectually ascendant, or that American conservatives continue to cling to "the consent of the governed" as the source of political legitimacy. But it is not surprising that the Left's attachment to this fundamental principle-an attachment that has been waning since the mid-19th century at least-is now virtually exhausted. Popular sovereignty has a decidedly mixed record in producing "progressive" results, especially on questions of war, peace, and national security.