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Full-Text Articles in Law
Non-State Actors "Under Color Of Law": Closing A Gap In Protection Under The Convention Against Torture, Anna R. Welch, Sangyeob Kim
Non-State Actors "Under Color Of Law": Closing A Gap In Protection Under The Convention Against Torture, Anna R. Welch, Sangyeob Kim
Faculty Publications
The world is experiencing a global restructuring that poses a serious threat to international efforts to prevent and protect against torture. The rise of powerful transnational non-state actors such as gangs, drug cartels, militias, and terrorist organizations is challenging states’ authority to control and govern torture committed within their territory.
In the United States, those seeking protection against deportation under the Convention Against Torture (“CAT”) must establish a likelihood of torture at the instigation of or by consent or acquiescence of a public official acting in an official capacity or other person acting in an official capacity. However, what is …
Un-Torturing The Definition Of Torture And Employing The Rule Of Immigration Lenity, Irene Scharf
Un-Torturing The Definition Of Torture And Employing The Rule Of Immigration Lenity, Irene Scharf
Faculty Publications
In the first three sections, I examine the background of the Convention in the context of international human rights instruments (Section I); the context for a critique of the CAT’s definition of torture, given the legislative history of the Convention and an existing statute that could aid in correcting the misinterpretation adversely affecting CAT enforcement (Section II); and the adverse international implication of the United States’ restrictive meaning of torture (Section III). In a concluding section (IV), I offer possible solutions to the problem, invoking a robust principle of Immigration Lenity to prevent the return of potential torture victims to …
Organizational Management Of Conflicting Professional Identities, Cassandra Burke Robertson
Organizational Management Of Conflicting Professional Identities, Cassandra Burke Robertson
Faculty Publications
Professionals in the military have suffered criticism for their failure to counter military excess in the so-called "War on Terror" - especially in the area of torture and maltreatment of detainees. Much of the criticism leveled against such professionals has assumed that they were bad actors who were making a conscious choice to avoid the strictures of their code of ethics. This Article counters that narrative by applying identity theory to offer a more situations explanation. It argues that some of these professional failures arise from the cognitive incentives faced by individuals in an organization that rewards organizational deference over …
The Torture Lawyers, Michael P. Scharf
The Torture Lawyers, Michael P. Scharf
Faculty Publications
This article recounts the story about how these four individuals intentionally cut off the government's primary experts on the Geneva Conventions, the Torture Convention, and customary international law from the decision making process. In doing so, they presented a one-sided and distorted view of U.S. obligations under international law that led to a widespread government policy and practice of torture. It also reveals how a trio of important Supreme Court precedents disrupted these plans, and ultimately swung the balance back in favor of compliance with international law.
Overcoming Necessity: Torture And The State Of Constitutional Culture, Thomas P. Crocker
Overcoming Necessity: Torture And The State Of Constitutional Culture, Thomas P. Crocker
Faculty Publications
No abstract provided.
Torture, With Apologies, Thomas P. Crocker
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, …
Dark Ages Of Human Rights?, Linda A. Malone
Dark Ages Of Human Rights?, Linda A. Malone
Faculty Publications
No abstract provided.
The Elephant In The Room: Torture And The War On Terror, Michael P. Scharf, Rory T. Hood
The Elephant In The Room: Torture And The War On Terror, Michael P. Scharf, Rory T. Hood
Faculty Publications
Forward to the Case Western Reserve University School of Law "Torture and the War on Terror" symposium issue.
American Innocence, Robert N. Strassfeld
American Innocence, Robert N. Strassfeld
Faculty Publications
The sad fact is that our relationship to torture and other atrocities is more complicated and less innocent than we or President Bush would like to believe. This article examines that relationship and the ways in which we try to distance ourselves from torture and atrocity. Part II briefly explores our notions of exceptionalism and innocence. Part III then turns to our efforts to evade responsibility for torture and atrocity. First, it briefly discusses ways in which we try to deny our own acts of torture and abuse through rhetorical misdirection and by relegating torture to the shadows. Part III's …