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32 B. C. Int'l & Comp. L. Rev. 203 (2009)
On Waterboarding: Legal Interpretation and the Continuing Struggle for Human Rights

handle is hein.journals/bcic32 and id is 207 raw text is: ON WATERBOARDING: LEGAL
INTERPRETATION AND THE CONTINUING
STRUGGLE FOR HUMAN RIGHTS
DANIEL KANSTROOM*
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 bal-
ance heinousness and cruelty against information that we might get?
Mr. Mukasey's approach appears to be careful lawyering. However, it por-
tends a radical and dangerous departure from a fundamental premise of
human fights 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 hocjudgments. We
have clear enough standards to conclude that waterboarding is and was
illegal. Official legal equivocation about waterboarding preserves the po-
tential 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.
This is the destiny of a democracy-it does not see all means as ac-
ceptable, and the ways of its enemies are not always open before it. A
democracy must sometimes fight with one hand tied behind its back.
Even so, a democracy has the upper hand. The rule of law and the
liberty of an individual constitute important components in its un-
[Editor's Note: This article appeared originally in volume 29, issue 2, of the Boston College
Third World Law JournaL Its publication coincided with Mr. Mukasey's commencement ad-
dress. Because of the article's obvious affinity with this symposium, the Third World Law Jour-
nal kindly permitted us to reprint it in this issue. We gratefully acknowledge that permission
and offer our thanks to Eleanor Downes, the article's original editor.]
* Director, Boston College Law School Human Rights Program; Associate Director,
Boston College Center for Human Rights and International Justice, and Clinical Professor
of Law. This essay is the first part of a larger attempt to analyze the deep legal and ethical
issues raised by the waterboarding debate. I am deeply grateful to Ellen Downes for en-
couraging me to undertake this project, and to Kent Greenfield, David Hollenbach SJ, and
Zyg Plater for helpful critique.

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