Abstract

http://ssrn.com/abstract=1137994
 
 

Citations (1)



 
 

Footnotes (100)



 


 



On 'Waterboarding': Legal Interpretation and the Continuing Struggle for Human Rights


Daniel Kanstroom


Boston College - Law School

May 27, 2008

Boston College Third World Law Journal, Vol. 28, 2008
Boston College Law School Legal Studies Research Paper No. 157

Abstract:     
While some aspects of the "waterboarding" debate are largely political, the practice also implicates deeply normative underpinnings of human rights and law. Attorney General Michael Mukasey has steadfastly declined to declare waterboarding illegal or to launch an investigation into past waterboarding. His equivocations have generated anguished controversy because they raise a fundamental question: should we balance "heinousness and cruelty" against information that we "might get"? Mr. Mukasey's approach appears to be careful lawyering. However, it portends a radical and dangerous departure from a fundamental premise of human rights law: the inherent dignity of each person. Although there is some lack of clarity about the precise definition of torture, all is not vagueness, or reliance on "circumstances," and post hoc judgments. We have clear enough standards to conclude that waterboarding is and was illegal. Official legal equivocation about waterboarding preserves the potential imprimatur of legality for torture. It substitutes a dangerously fluid utilitarian balancing test for the hard-won respect for human dignity at the base of our centuries-old revulsion about torture. That is precisely what the rule of law (and the best lawyers) ought not to do.

Number of Pages in PDF File: 21

Keywords: torture, human rights, human dignity, Michael Mukasey

Accepted Paper Series


Download This Paper

Date posted: May 28, 2008  

Suggested Citation

Kanstroom, Daniel, On 'Waterboarding': Legal Interpretation and the Continuing Struggle for Human Rights (May 27, 2008). Boston College Third World Law Journal, Vol. 28, 2008; Boston College Law School Legal Studies Research Paper No. 157. Available at SSRN: http://ssrn.com/abstract=1137994

Contact Information

Daniel Kanstroom (Contact Author)
Boston College - Law School ( email )
885 Centre Street
Newton, MA 02459-1163
United States
Feedback to SSRN


Paper statistics
Abstract Views: 2,025
Downloads: 408
Download Rank: 39,302
Citations:  1
Footnotes:  100

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo7 in 0.234 seconds