International law v. the United States

In the wake of recently leaked charges from the International Committee of the Red Cross that the United States has employed interrogation methods that are "tantamount to torture" against foreign enemy combatants detained at Guantanamo Bay – an attempt to redefine international law in a manner detrimental to American sovereignty and security – it is necessary to reexamine the appropriateness of America’s adherence to the existing, politically charged international legal framework.

In an article for National Review Online, Andrew C. McCarthy makes a persuasive case for – in this "confrontation against barbarians who make a mockery of the civilizing impulses behind international law" – a new legal paradigm that balances national security interests with due process principles. The current arrangement is unsustainable, the author points out, because the "global village’s idealized vision of U.S. obligations is often importantly different from our actual obligations."

McCarthy notes, moreover, that the ICRC’s "offensive use of international law to chip away at sovereignty and democratic self-determination…is not merely an ICRC gambit" but rather part of a "wider and more perilous trend." This trend, sadly, is being facilitated by American jurisprudence. In awarding POW status to al Qaeda operative Salim Ahmed Hamdan, for example, a federal district judge in Washington, D.C. fully ignored that the U.S. has for over a quarter-century expressly refused to ratify a treaty (the 1977 Protocol I to the Geneva Conventions) that would grant POW protections to non-state militias. The judge justified his blatant disregard for the United States Constitution and the democratic process by citing "general international understandings."

As McCarthy concludes: "Thus used, international law portends breathtaking derogations of sovereignty, self-determination, and democracy. Its proponents couch their impositions in the loftiest of inspirational rhetoric, cleverly casting naysayers as the enemies of justice and human dignity. But this is a wolf in sheep’s clothing. For the sake of our security and authority to forge our own national destiny, we must begin to push back."