Eagleionline

By Jesse Stellato, May 18, 2008

Eagleionline has obtained a draft of Professor Daniel Kanstroom’s upcoming article: “On ‘Waterboarding’: Legal Interpretation and the Continuing Struggle for Human Rights.” The abstract appears below. Kanstroom is the Director of the Boston College Law School International Human Rights Program, Associate Director of the Boston College Center for Human Rights and International Justice, and Clinical Professor of Law. He teaches Immigration and Refugee Law, International Human Rights Law, and Administrative Law.

 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.

Kanstroom’s draft comes on the heels on an earlier essay on the topic of waterboarding, which Eagleionline published on February 12, 2008.

For more information about the debate at Boston College Law School that Attorney General Michael Mukasey’s invitation has spawned, click here. For the Wall Street Journal’s reaction, click here. For a recent student survey on the matter, click here.