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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 misconceptions about intelligence gathering and coercion that are common to all sides of the torture debate, this article describes the reality of intelligence collection. It then reviews the wide range of competing definitions of torture; those provided by international courts, those proposed by commentators and those implemented by governments around the world. Some proposed definitions are so broad that practically any form of interrogation would be illegal, others so narrow as to allow for a wide variety of shockingly brutal techniques.
What becomes apparent, not surprisingly, is that people or governments under pressure from terrorist attacks view the definition of "severe pain and suffering" differently from those outside such a cauldron. Yet international law's reliance upon self-enforcement requires a good faith interpretation of malleable terms such as "severe pain and suffering" by those under such pressure. The inevitable result, as witnessed in the US after 9/11, in the UK at the height of IRA violence in the early 1970's, in Germany during the "German Autumn" battle against the Red Army Faction in 1977, and in Israel during its struggles against Palestinian violence, is that such a "good faith" interpretation is not readily forthcoming from those charged with the protection of their civilian population. The excesses that followed were generally later regretted, but such regrets do little to comfort the victims of these excesses.
This article proposes a solution. To prevent the definition of "severe pain and suffering" from changing between September 10 and September 12 (or more accurately from not being considered at all on September 10 to being considered in a very dark light on September 12), it recommends tying the definition to pre-existing standards that are difficult to manipulate and internally self-policing.
torture, interrogation, coercion, national security, war on terror, detainee treatment, cruel inhuman and degrading treatment
Abstract: The Supreme Court's decision in Hamdan v. Rumsfeld was hailed by many as a victory for international law. By basing part of its decision on the Geneva Conventions, the Court was seen as forcing a reluctant administration to recognize and comply with international law. A closer look at the Geneva Convention analysis, however, calls that conclusion into question. By ignoring its own canons of treaty interpretation the Court produced an uncharacteristically cursory analysis of the international law issues in this case. In so doing, it missed an opportunity to definitively answer important questions concerning both the scope and substance of Geneva's protections in the conflict with al Qaeda. It was silent on the competing values underlying the Conventions and the difficult status questions that arise in non-international armed conflicts, leaving the Fourth Circuit to wrestle with these issues in al-Marri. It also failed to discuss the application of Protocol II, which by definition applies to Common Article 3 conflicts, preferring to apply the more expansive protections of Protocol I without explaining that choice. Lastly, the Court's unfortunate comparison of the military commissions with the summary executions meted out by the Japanese during World War II served only to inflame the rhetoric surrounding the debate rather than advance the legal understanding of how Geneva applies to the current situation.
Geneva Conventions, Hamdan, Common Article 3, armed conflict, law of armed conflict
Abstract: The current laws governing diversity removal are badly broken. They create counterproductive incentives that have increased the workload of federal courts while rewarding deceptive practices on the part of plaintiffs. Defendants have every incentive to remove even low value cases to federal court, on the chance that the vague and uncertain standards governing amount in controversy issues will allow them to succeed. At the same time, the current rules encourage plaintiffs to conceal the true value of their cases for one-year, to prevent removal to federal court, and then to reveal the true value, while using the one-year bar to keep their cases in state court. The circuit courts are not only split, but in some cases internally fractured on how to deal with this issue. While the American Law Institute and the Committee on Federal-State Jurisdiction of the Judicial Conference of the United States have both proposed legislative solutions for this problem, it is unlikely that these solutions will be acted upon in the near future. Even if they are, this article discusses potential shortcomings in these proposals that will leave many of these problems unaddressed. The practical solution to this problem must take into account the realities of modern litigation and must properly align the incentives of both plaintiffs and defendants, while supporting the legislative goals that underlie the one-year bar. By showing greater initial deference to the plaintiffs' choice of forum, but ensuring that any manipulation will not ultimately succeed, this proposal will greatly reduce improper removals by defendants, while eliminating any benefits that plaintiffs' derive from deceptive practices.
Removal, remand, diversity jurisdiction, amount in controversy, federal jurisdiction, forum manipulation
Abstract: By examining the effects of a seemingly trivial choice, the selection of different apprehension forms, this short essay illustrates how the operational realities of soldiers engaged in counterinsurgency operations are shaped, and the ethical dimensions that go along with such choices. It urges that these operational realities be taken into account during the ongoing abstract debates about process.
law of war, rules of engagement, apprehension forms, combat training, ethics, international law, international humanitarian law
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