Oregon Law Review : Vol. 88 No. 3, p.746-776 : Specific Intent and the Purposeful Narrowing of Victim Protection Under the Convention Against Torture
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Date
2009
Authors
Holper, Mary
Journal Title
Journal ISSN
Volume Title
Publisher
University of Oregon Law School
Abstract
In this Article, I argue that the Board of Immigration Appeals (BIA) has adopted a misguided
approach to the United
Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT) protection that creates an insurmountable obstacle
to actually obtaining such protection. As a solution, I propose that
Attorney General Eric Holder, under the new Obama administration,
adopt a revised definition of specific intent that includes “knowing
that severe pain or suffering is foreseeable.” Such a definition is
consistent with the legislative history and purpose of the CAT and
finds ample support in criminal law jurisprudence. In addition, this
definition of specific intent is used by the Office of Legal Counsel of
the U.S. Department of Justice in its analysis of whether certain
interrogation techniques would subject Central Intelligence Agency
operatives to prosecution under the CAT. An alternative solution is
for U.S. courts to employ a “knowledge of foreseeable consequences”
definition of specific intent in CAT protection cases. Courts can
adopt this definition notwithstanding the principles of agency deference embodied in Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc. (Chevron).
Description
52 p.