University of Massachusetts Amherst



University of Massachusetts Amherst Fall 2006

Department of Legal Studies

Legal 397b: TORTURE, TERRORISM, AND THE LAW



Instructors: Judy Holmes, Legal Studies Jeremy Wolf, Political Science

Office: Gordon Hall 108 Gordon Hall 114

In-person office hours: Wednesdays, 1 - 4 PM By appointment

On-line office hours: Wednesdays, 3 - 4 PM Friday, 10 AM - noon

Telephone: (413) 545-2305

E-mail: jholmes@legal.umass.edu jnwolf@polsci.umass.edu

Course description and goals

Torture is an ancient practice in western civilization; just think about Roman gladiators or medieval trials. Both state and church used torture in these public rituals. It was the political theorists of the Enlightenment who first challenged the state’s use of torture based on concepts of individual liberty, personal freedom, and limits on state power. The U.S. Consitution enshrined this ideal in law in the eighth amendment’s prohibition against cruel and unusual punishment. Nevertheless, since the definition of torture remained imprecise and the reach of liberalism’s legal protections was limited, torture remained part of western culture in private institutions, such as slavery, and in government interrogation chambers.

The practices of the Nazi regime during World War II spurred the growth of international law in many directions, including a worldwide demand to prohibit all forms of torture. The International Covention Against Torture, entered into force in 1987, defines torture and unconditionally prohibits use of torture by any government official. The United States and 74 other countries ratified this international treaty, and it is considered part of customary international law.

The terrorist attacks on the United States on September 11, 2001, launched a new debate concerning the use of torture to extract information from suspects. Leading legal scholars and government lawyers advanced arguments to support the use of torture in limited situations while others maintained a position of absolute prohibition. This is the debate we will join over the course of this semester. Do the dangers posed by terrorism to an open democratic society require the use of torture? Can liberalism survive without a limited use of torture? Can it survive with a limited use of torture? Is there some way to “regulate” the use of torture? And what is the definition of torture? Do psychological tactics used for interrogation amount to torture? These are some of the thorny questions we will consider.

In order to think about these questions, we need to be well grounded in the facts. The first goal of this course is to develop the background to understand the breadth and nuances of these issues. The second goal is to work through the complex issues raised by governmental use of torture and to develop a personal position based on well-reasoned arguments. The final project of the semester is to write a memorandum to a government official advocating your view regarding the government’s use of torture. The third goal is to stimulate a life-long intellectual inquiry into the nature of democracy and to activate your role as an informed citizen.

Required books and internet access:

• Available at Food For Thought Books, 106 North Pleasant Street, Amherst

The No-Nonsense Guide to Terrorism, by Jonathan Barker (Verso Books, 2003) (~$10)

Also available for sale on-line at .

• Available at Collective Copies, 71 South Pleasant Street, Amherst

Course Packet #20 (~$39)

The course packet is also available on the course website for personal downloading.

• Available at OIT Help Desk, 109 Lederle Graduate Research Center

An OIT account to access WebCT

Evaluation

23% In-class test, October 3

23% In-class test, November 7

35% Memorandum, due December 7

09% Reflection papers, due September 12, November 2, and December 14

10% Class attendance and participation in class and on-line

• In-class tests. These two tests will assess your command of the material covered. They will include identifications, short answer questions, and an essay question. There will be no surprises in these tests. If you do all the assigned preparation for class, come to class, and participate in class discussion, you should have no problems with these tests. Please note that there will be no make-ups unless you have a compelling reason to miss the test and have notified us before the test is administered.

• Memorandum. This 7-8 page paper will be addressed to a politician of your choosing and it will set forth your position on governmental use of torture. By November 2, we will ask you to identify the politician to whom you will write; it should be somebody that you disagree with. You may have to do some research to identify the person’s point of view. You will not be required to do any additional research for this paper; the material covered in the readings and class discussion should be enough to write this paper. It will be an opportunity for you to reflect on and synthesize all the material covered throughout the semester.

• Reflection papers. These three short papers (2 pages) are intended to give you an opportunity to reflect on specific issues raised and discussed in the readings and in class.

• Class participation and attendance. Our expectation is that you will do all the readings and come to every class prepared to be engaged with the material covered. If you are absent from any class, it is your responsibility to make up the work covered in class. Both instructors are available for in-person meetings and for on-line discussions. We expect that this material will generate a lot of discussion and there will be opportunities for participation in class and on-line through the course website (WebCT).

Plagiarism. Using information or taking language from any source without attribution is plagiarism. Having someone else write a paper or portion of a paper for you is cheating. These and all other forms of academic dishonesty will not be tolerated in this or any other course and will be dealt with harshly. Do not do anything that has even the appearance of cheating. If you have any questions whatsoever about plagiarism or academic dishonesty, please come talk to me.

READING ASSIGNMENTS (All assigned reading materials are available on the course website and in the course packet.)

I. Historical, political, and legal background of torture

|Thursday, Sept. 7 |Introduction to course |

|Tuesday, Sept. 12 |Historical background |

| |Reflection paper #1 due |

|Thursday, Sept. 14 |Enlightenment |

| |Reading due: Course packet, p. 1-13, “Enlightenment, Dictionary of the History of Ideas” |

|Tuesday, Sept. 19 |Legal background: US law |

| |Reading due: Course packet, p. 14-22, “US Consitution; 8th Amendment debate; Wilkerson v. Utah; In re |

| |Kemmler; US laws” |

|Thursday, Sept. 21 |Legal background: International law |

| |Reading due: Course packet, p. 23-44, “Universal Declaration of Human Rights; International Covenant on |

| |Civil and Political Rights; Covention Against Torture and US Declarations and Reservations” |

|Tuesday, Sept. 26 |Current US law and policy |

| |Reading due: Course packet, p. 45-64, “Detainee Treatment Act; Congressional debate; ‘Torture’s Terrible |

| |Toll’; National Security Strategy” |

|Thursday, Sept. 28 |Summary and review |

|Tuesday, Oct. 3 |First in-class test |

II. Terrorism and the liberal ideology of torture

|Thursday, Oct. 5 |What is terrorism? |

| |Reading due: Barker, No-Nonsense Guide to Terrorism, p. 8-60 |

|Tuesday, Oct. 10 |What is terrorism? |

| |Reading due: Barker, No-Nonsense Guide to Terrorism, p. 61-end |

|Thursday, Oct. 12 |Liberal ideology of torture |

| |Reading due: Course packet, p. 65-75, “Liberalism, Torture, and the Ticking Time Bomb by David Luban” |

|Tuesday, Oct. 17 |Interrogation |

| |Reading due: Course packet, p. 76-94, “The Dark Art of Interrogation by Mark Bowden” |

|Thursday, Oct. 19 |Dirty Hands |

| |Reading due: Course packet, p. 95-101, “Reflections on the Problem of ‘Dirty Hands’ by Jean Elshtain” |

|Tuesday, Oct. 24 |Torture Warrants |

| |Reading due: Course packet, p. 102-106, “Tortured Reasoning by Alan Dershowitz” |

|Thursday, Oct. 26 |Lesser evil or greatest evil? |

| |Reading due: Not in course packet, on-line at course website, “Lesser Evils by Michael Ignatieff and What is|

| |the Greatest Evil? by Martha Minow” |

|Tuesday, Oct. 31 |Legal precedent: Ireland and Israel |

| |Reading due: Course packet, p. 107-131, “Ireland v. United Kingdom; Landau Commission; Israeli Supreme |

| |Court; Torture and the Future by Lisa Hajjar” |

|Thursday, Nov. 2 |Summary and review |

| |Reflection paper #2 due |

| |Memorandum proposal due |

|Tuesday, Nov. 7 |Second in-class test |

III. Current U.S. practice

|Thursday, Nov. 9 |Film: “Frontline: The Torture Question” |

|Tuesday, Nov. 14 |Afghanistan |

| |Reading due: Course packet, p. 132-137, “Stress and Duress” |

|Thursday, Nov. 16 |Guantanamo Bay |

| |Reading due: Course packet, p. 138-144, “Inside the Wire” |

|Tuesday, Nov. 21 |Government memos |

| |Reading due: Course packet, p. 164-182, “John Yoo; Alberto Gonzalez; and Colin Powell memos” |

|Thursday, Nov. 23 |NO CLASS; THANKSGIVING |

|Tuesday, Nov. 28 |Government memos |

| |Reading due: Course packet, p. 183-210, “Bybee and Mora memos” |

|Thursday, Nov. 30 |Rendition |

| |Reading due: Course packet, p. 210-229, “Outsourcing Torture; Algerian Tells of Dark Odyssey” |

|Tuesday, Dec. 5 |Summary and review |

|Thursday, Dec. 7 |Memorandum due |

IV. Cultural depiction of torture

|Thursday, Dec. 7 |Television |

|Tuesday, Dec. 12 |Film |

|Thursday, Dec. 14 |Reflection paper #3 due |

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