Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- University of Denver (9)
- Georgetown University Law Center (4)
- Mitchell Hamline School of Law (4)
- New York Law School (4)
- University of Michigan Law School (3)
-
- Selected Works (2)
- SelectedWorks (2)
- Valparaiso University (2)
- American University Washington College of Law (1)
- Chicago-Kent College of Law (1)
- Cornell University Law School (1)
- Pace University (1)
- Pepperdine University (1)
- Roger Williams University (1)
- Schulich School of Law, Dalhousie University (1)
- Touro University Jacob D. Fuchsberg Law Center (1)
- U.S. Naval War College (1)
- US Army War College (1)
- University of Baltimore Law (1)
- University of Pennsylvania Carey Law School (1)
- University of Pittsburgh School of Law (1)
- University of San Diego (1)
- University of South Carolina (1)
- University of Washington Tacoma (1)
- Washington and Lee University School of Law (1)
- Publication Year
- Publication
-
- Human Rights & Human Welfare (9)
- Georgetown Law Faculty Publications and Other Works (4)
- William Mitchell Law Review (4)
- All Faculty Scholarship (2)
- Articles (2)
-
- Law Faculty Publications (2)
- Michael W. Lewis (2)
- Michigan Journal of International Law (2)
- NYLS Law Review (2)
- American University National Security Law Brief (1)
- Articles & Chapters (1)
- Chicago-Kent Law Review (1)
- Cornell Law Faculty Publications (1)
- Dalhousie Law Journal (1)
- Faculty Publications (1)
- Global Honors Theses (1)
- International Law Studies (1)
- Jens David Ohlin (1)
- Life of the Law School (1993- ) (1)
- Other Publications (1)
- Pace Law Review (1)
- Pepperdine Law Review (1)
- San Diego International Law Journal (1)
- Stephen P. Hoffman (1)
- The US Army War College Quarterly: Parameters (1)
- Touro Law Review (1)
- Washington and Lee Law Review (1)
- Publication Type
Articles 1 - 30 of 47
Full-Text Articles in Law
The Conservative Court And Torture Attenuation, Ari B. Rubin
The Conservative Court And Torture Attenuation, Ari B. Rubin
American University National Security Law Brief
No abstract provided.
Personality Disruption As Mental Torture: The Cia, Interrogational Abuse, And The U.S. Torture Act, David Luban, Katherine S. Newell
Personality Disruption As Mental Torture: The Cia, Interrogational Abuse, And The U.S. Torture Act, David Luban, Katherine S. Newell
Georgetown Law Faculty Publications and Other Works
This Article is a contribution to the torture debate. It argues that the abusive interrogation tactics used by the United States in what was then called the “global war on terrorism” are, unequivocally, torture under U.S. law. To some readers, this might sound like déjà vu all over again. Hasn’t this issue been picked over for nearly fifteen years? It has, but we think the legal analysis we offer has been mostly overlooked. We argue that the basic character of the CIA’s interrogation of so-called “high-value detainees” has been misunderstood: both lawyers and commentators have placed far too much emphasis …
The Authoritarianization Of U.S. Counterterrorism, Sahar F. Aziz
The Authoritarianization Of U.S. Counterterrorism, Sahar F. Aziz
Washington and Lee Law Review
No abstract provided.
Torture And The Human Mind, Larry D. Miller
Torture And The Human Mind, Larry D. Miller
The US Army War College Quarterly: Parameters
No abstract provided.
Newsroom: Closing Guantanamo Isn't Enough 03-14-2016, Jared Goldstein
Newsroom: Closing Guantanamo Isn't Enough 03-14-2016, Jared Goldstein
Life of the Law School (1993- )
No abstract provided.
Obama's National Security Exceptionalism, Sudha Setty
Obama's National Security Exceptionalism, Sudha Setty
Chicago-Kent Law Review
The label of national security exceptionalism fits the Obama administration in two ways: first, although the administration has actively sought to address and improve the protection of human rights and civil rights of racial minorities suffering disparate negative treatment in a variety of contexts, those moves toward rights protection generally do not extend to the realm of counterterrorism abuses, although almost all of those who have suffered from violations of human and civil rights in the post-9/11 counterterrorism context are racial and/or religious minorities. One of the justifications for this exceptionalism is based on the widespread view that national security …
The Admissibility Of Confessions Compelled By Foreign Coercion: A Compelling Question Of Values In An Era Of Increasing International Criminal Cooperation, Geoffrey S. Corn, Kevin Cieply
The Admissibility Of Confessions Compelled By Foreign Coercion: A Compelling Question Of Values In An Era Of Increasing International Criminal Cooperation, Geoffrey S. Corn, Kevin Cieply
Pepperdine Law Review
This Article proceeds on a simple and clear premise: a confession extracted by torture or cruel, inhuman, or degrading treatment should never be admitted into evidence in a U.S. criminal trial. Whether accomplished through extending the Due Process or Self-Incrimination based exclusionary rules to foreign official coercion, or by legislative action, such exclusion is necessary to align evidentiary practice regarding confessions procured by foreign agents with our nation's fundamental values as reflected in the Fifth Amendment and our ratification of the CAT. This outcome is not incompatible with Connelly. Rather, this Article explores the limits of the Court's language in …
Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson
Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson
Articles
In this section: United States Objects to Russia’s Continued Violations of Ukraine’s Territorial Sovereignty, Including by Convoys Purporting to Provide Humanitarian Aid • United States and Afghanistan Sign Bilateral Security Agreement • United States Announces “Changes and Confirmations” in Its Interpretation of the UNConvention Against Torture • United States and China Make Joint Announcement to Reduce Greenhouse Gas Emissions, Bolstering Multilateral Climate Change Negotiations • United States Deepens Its Engagement with ISIL Conflict • NATO Affirms that Cyber Attacks May Trigger Collective Defense Obligations
The Bounds Of Necessity, Jens David Ohlin
The Bounds Of Necessity, Jens David Ohlin
Jens David Ohlin
The current controversy surrounding the legality of torture can only be understood through an analysis of the distinction between justified necessity and excused necessity. Although there may be strong prudential reasons for international criminal courts to declare torture unlawful under any circumstance, this would not necessarily prevent a court from recognizing that an excuse may apply. However, the hallmark of the necessity excuse should not be understood, as it is in German law, as an exception that only applies when a defendant breaks the law to save someone close to him. Rather, the basic principle of the excuse ought to …
Legal Affairs: Dreyfus, Guantánamo, And The Foundation Of The Rule Of Law, David Cole
Legal Affairs: Dreyfus, Guantánamo, And The Foundation Of The Rule Of Law, David Cole
Touro Law Review
Analogous to the Dreyfus affair, America's reaction to the events of September 11, 2001, subverted the rule of law to impose penalties on those it viewed as a threat. There are lessons to be learned from both the Dreyfus affair and America's reaction to September 11, 2001.
On The Conflation Of The State Secrets Privilege And The Totten Doctrine, D. A. Jeremy Telman
On The Conflation Of The State Secrets Privilege And The Totten Doctrine, D. A. Jeremy Telman
Law Faculty Publications
The state secrets privilege (SSP) has become a major hindrance to litigation that seeks to challenge abuses of executive power in the context of the War on Terror. The Supreme Court first embraced and gave shape to the SSP as an evidentiary privilege in a 1953 case, United States v. Reynolds. Increasingly, the government relies on the SSP to seek pre-discovery dismissal of suits alleging torts and constitutional violations by the government. Lower federal courts have permitted such pre-discovery dismissal because they have confused the SSP with a non-justiciability doctrine derived from an 1875 case, Totten v. United States …
Is Torture Justified In Terrorism Cases?: Comparing U.S. And European Views, Stephen P. Hoffman
Is Torture Justified In Terrorism Cases?: Comparing U.S. And European Views, Stephen P. Hoffman
Stephen P. Hoffman
This essay discusses issues of torture and some of the philosophical underpinnings. First, I define torture as it is used in international and human rights law. Then, I discuss three primary theories of torture: deontology, consequentialism, and threshold deontology. After setting this groundwork, I introduce particular issues in terrorism cases such as the “ticking bomb” scenario, which is often used to argue that torture may be appropriate and possibly required when done to save many lives. This invariably must include a discussion of the necessity doctrine, the legal doctrine allowing an individual to take extraordinary — even illegal — measures …
The Taint Of Torture: The Roles Of Law And Policy In Our Descent To The Dark Side, David Cole
The Taint Of Torture: The Roles Of Law And Policy In Our Descent To The Dark Side, David Cole
Georgetown Law Faculty Publications and Other Works
Was the Bush administration’s decision to employ “enhanced interrogation techniques” a mistake of policy, a violation of law, or both? This essay responds to Philip Zelikow’s insider account of how the decision to use these techniques was reached. The author suggests that while Zelikow makes a strong case that the decision to authorize the CIA to use coercive interrogation tactics was a mistaken policy judgment, it is important not to lose sight of the fact that it was also illegal. The latter conclusion demands a different response than the former. In particular, it underscores the necessity for accountability. The author …
Intolerable Abuses: Rendition For Torture And The State Secrets Privilege, D. A. Jeremy Telman
Intolerable Abuses: Rendition For Torture And The State Secrets Privilege, D. A. Jeremy Telman
Law Faculty Publications
In Mohamed v. Jeppesen Dataplan, Inc., the Ninth Circuit, sitting en banc, dismissed a complaint brought by five men claiming to have been victims of the U.S. government’s extraordinary rendition program, alleged to involve international kidnapping and torture at foreign facilities. Procedurally required to accept plaintiffs’ allegations as true, the court nonetheless dismissed the complaint before discovery had begun based on the state secrets privilege and the Totten doctrine, finding that the very subject matter of plaintiffs’ complaint was a state secret and that the defendant corporation could not defend itself without evidence subject to the privilege. This Article contends …
The Torture Debate: What The Scholars And The Intellectuals Are Saying, Dieudonné Balla
The Torture Debate: What The Scholars And The Intellectuals Are Saying, Dieudonné Balla
Global Honors Theses
In the aftermath of the Abu Ghraib investigation and the 2009 CASUSS report on post-9/11 interrogation practices, the question of state-sanctioned torture has become the subject of much public and scholarly debate. In this thesis, the author examines three arguments in support of lawful torture: Alan Dershowitz’s Law of Necessity and the concept of “torture warrants,” Michael Walzer’s “problem of dirty hands,” and Richard Posner’s notion of Constitutional interpretation in times of emergency.
Fundamental Norms, International Law, And The Extraterritorial Constitution, Jules Lobel
Fundamental Norms, International Law, And The Extraterritorial Constitution, Jules Lobel
Articles
The Supreme Court, in Boumediene v. Bush, decisively rejected the Bush Administration's argument that the Constitution does not apply to aliens detained by the United States government abroad. However, the functional, practicality focused test articulated in Boumediene to determine when the constitution applies extraterritorially is in considerable tension with the fundamental norms jurisprudence that underlies and pervades the Court’s opinion. This Article seeks to reintegrate Boumediene's fundamental norms jurisprudence into its functional test, arguing that the functional test for extraterritorial application of habeas rights should be informed by fundamental norms of international law. The Article argues that utilizing international law’s …
The Object Of Torture Is Torture: Extraordinary Renditions To Jordan And Human Rights In The War On Terror, Kat Mitchell
The Object Of Torture Is Torture: Extraordinary Renditions To Jordan And Human Rights In The War On Terror, Kat Mitchell
Human Rights & Human Welfare
Hassan Saleh bin Attash, a Yemeni national, was just seventeen at the time of his September 2002 arrest in Pakistan. The young man spent four days in a Karachi prison before being taken to a United States-run prison in Kabul, where he was held and allegedly tortured through the middle of September. He was then rendered to Jordan.
A Dark Descent Into Reality: The Case For An Objective Definition Of Torture, Michael W. Lewis
A Dark Descent Into Reality: The Case For An Objective Definition Of Torture, Michael W. Lewis
Michael W. Lewis
Abstract The definition of torture is broken. The malleability of the term “severe pain or suffering” at the heart of the definition has created a situation in which the world agrees on the words but cannot agree on their meaning. The “I know it when I see it” nature of the discussion of torture makes it clear that the definition is largely left to the eye of the beholder. This is particularly problematic when international law’s reliance on self-enforcement is considered. After discussing current common misconceptions about intelligence gathering and coercion that are common to all sides of the torture …
Constitutionality Of Torture In A Ticking-Bomb Scenario: History, Compelling Governmental Interests, And Supreme Court Precedents, Riddhi Dasgupta
Constitutionality Of Torture In A Ticking-Bomb Scenario: History, Compelling Governmental Interests, And Supreme Court Precedents, Riddhi Dasgupta
Pace Law Review
No abstract provided.
Responses To The Ten Questions, Edward B. Macmahon Jr.
Responses To The Ten Questions, Edward B. Macmahon Jr.
William Mitchell Law Review
No abstract provided.
A Dark Descent Into Reality: Making The Case For An Objective Definition Of Torture, Michael W. Lewis
A Dark Descent Into Reality: Making The Case For An Objective Definition Of Torture, Michael W. Lewis
Michael W. Lewis
The definition of torture is broken. The malleability of the term “severe pain or suffering” at the heart of the definition has created a situation in which the world agrees on the words but cannot agree on their meaning. The “I know it when I see it” nature of the discussion of torture makes it clear that the definition is largely left to the eye of the beholder. This is particularly problematic when international law’s reliance on self-enforcement is considered. After discussing current common misconceptions about intelligence gathering and coercion that are common to all sides of the torture debate, …
De-Cloaking Torture: Boumediene And The Military Commissions Act, Alan W. Clarke
De-Cloaking Torture: Boumediene And The Military Commissions Act, Alan W. Clarke
San Diego International Law Journal
The Military Commissions Act of 2006 (MCA) marked the high tide and endgame for hiding torture. It's unraveling did more to uncover the Bush administration's secret interrogation practices than did the political change in Washington. International and domestic backlash against the government's embrace of harsh interrogation techniques, frequently rising to the level of torture, also played a role. However, the Supreme Court's decisions ending in Boumediene v. Bush played the decisive role. Boumediene, and the Supreme Court decisions that led up to it, made inevitable that which politics had left contingent and reversible. It also provided legal and political cover.
Looking Forward, Backward, Or Just Away?, Chandra Lekha Sriram
Looking Forward, Backward, Or Just Away?, Chandra Lekha Sriram
Human Rights & Human Welfare
The declassification and leaking of the so-called “torture memos” only supplements much which was already publicly well-known, but has offered a fresh opportunity to frankly debate American values, in particular its commitment to the rule of law, its own constitution, and international human rights and humanitarian law obligations to which it has committed itself, and which the Supreme Court has confirmed are part of domestic law. It is a shame, therefore, that the debate has been so stunted, diverted by the red herring of Dick Cheney’s rantings, and the apparent willingness of a segment of the population to accept, first, …
Let Us Not Become The Evil We Deplore, Rebecca Otis
Let Us Not Become The Evil We Deplore, Rebecca Otis
Human Rights & Human Welfare
On 14 September 2001, Representative Barbara Lee (CA-D) voted against the House bill that granted President Bush the authority to use force in response to the terrorist attacks on the World Trade Center and Pentagon. As the sole person to vote against the bill (by a margin of 420-1), Lee was roundly vilified as a “traitor,” a “coward, and even a “communist.” Later that day, as the only voice of dissent on the House floor, Lee delivered a speech to justify her position. Famously, she said to the elected representatives of our country, “As we act, let us not become …
Response To Mark Danner’S “The Red Cross’ Torture Report: What It Means”, Charli Carpenter
Response To Mark Danner’S “The Red Cross’ Torture Report: What It Means”, Charli Carpenter
Human Rights & Human Welfare
Danner’s NY Review of Books treatise on torture calls our attention to many significant issues, but in his key argument he is critically wrong.
June Roundtable: Introduction
Human Rights & Human Welfare
An annotation of:
“The Red Cross Torture Report: What It Means.” by Mark Danner. The New York Review of Books. April 30, 2009.
Righting Past, Present And Future Wrongs, Rhona Smith
Righting Past, Present And Future Wrongs, Rhona Smith
Human Rights & Human Welfare
Three legal issues are raised by the centerpiece of this month’s Roundtable: Does the legal definition of torture include “enhanced interrogation techniques”? What are the legal responsibilities of a State when torture is committed by its agents? and What should the State do now to prevent future violations of human rights? In other words, one must characterize the actions of the past, ameliorate the damage in the present, and prevent a recurrence in the future.
Torture—And Our Broader Understanding Of Human Rights, Mark Gibney
Torture—And Our Broader Understanding Of Human Rights, Mark Gibney
Human Rights & Human Welfare
Like most other human rights scholars, I am appalled at the idea that those people in the Bush White House who designed the administration’s policy on torture (but calling it something else) will in all likelihood go unpunished. In my view, the law is clear on this matter: those who directed and/or carried out torture must be held accountable for their actions. However, rather than focusing on the issue of accountability, I will use the issue of torture to make a broader point about how we have come to conceptualize the extent and scope of a state’s human rights obligations.
The Moral High Ground In An Age Of Vulnerability, Tyler Moselle
The Moral High Ground In An Age Of Vulnerability, Tyler Moselle
Human Rights & Human Welfare
Mark Danner’s New York Review of Books piece on torture in conjunction with John Nichols’ comment on the Bush administration, outline moral, legal and political problems related to the global war on terrorism and the ascendancy of the American imperial presidency. Most people seem to be repulsed by the idea of torture but are not morally committed enough or fully dedicated to prevent it from being employed to defend their way of life. Torture is a policy decision predicated on fear, self-defense, and vulnerability in an age of globalized insurgency: one way to respond is to take the moral high …
National Security Lawyering And The Persistent Neglect Of Institutional Culture, Peter Margulies
National Security Lawyering And The Persistent Neglect Of Institutional Culture, Peter Margulies
William Mitchell Law Review
No abstract provided.