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Full-Text Articles in Law
International Decision: Munaf V. Geren, Harlan G. Cohen
International Decision: Munaf V. Geren, Harlan G. Cohen
Scholarly Works
This International Decision case comment, the final version of which will be published in Volume 102, No. 4, of the American Journal of International Law (forthcoming), examines the U.S. Supreme Court's decision in Munaf v. Geren, a case arising out of U.S. operations in Iraq and allegations of potential torture in Iraqi custody. In that decision, a unanimous Supreme Court held that the federal courts have jurisdiction under the habeas corpus statute to hear claims brought by American citizens held overseas by American forces "operating subject to an American chain of command, even when those forces are acting as a …
The Bounds Of Necessity, Jens David Ohlin
The Bounds Of Necessity, Jens David Ohlin
Cornell Law Faculty Publications
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 …
Tainted Provenance: When, If Ever, Should Torture Evidence Be Admissible, Michael P. Scharf
Tainted Provenance: When, If Ever, Should Torture Evidence Be Admissible, Michael P. Scharf
Faculty Publications
Written by a consultant to the United Nation's newly established Cambodia Genocide Tribunal, "Tainted Provenance" examines one of the most important legal questions that will face the Tribunal as it begins its trials next year -- whether evidence of the Khmer Rouge command structure that came from interrogation sessions at the infamous Tuol Sleng torture facility should be considered notwithstanding the international exclusionary rule for evidence procured by torture. The issue of whether there should be exceptions to the torture evidence exclusionary rule (and how those exceptions should be crafted to avoid abuse) has significant implications beyond the international tribunal, …
Tinkering With Torture In The Aftermath Of Hamdan: Testing The Relationship Between Internationalism And Constitutionalism, Catherine Powell
Tinkering With Torture In The Aftermath Of Hamdan: Testing The Relationship Between Internationalism And Constitutionalism, Catherine Powell
Georgetown Law Faculty Publications and Other Works
Bridging international and constitutional law scholarship, the author examines the question of torture in light of democratic values. The focus in this article is on the international prohibition on torture as this norm was addressed through the political process in the aftermath of Hamdan v. Rumsfeld. Responding to charges that the international torture prohibition--and international law generally--poses irreconcilable challenges for democracy and our constitutional framework, the author contends that by promoting respect for fundamental rights and for minorities and outsiders, international law actually facilitates a broad conception of democracy and constitutionalism. She takes on the question of torture within …