TWLJ, Volume 28, Number 2

BOSTON COLLEGE THIRD WORLD LAW JOURNAL Volume XXVIII Spring 2008 Number 2 ESSAY On “Waterboarding”: Legal Interpretation and the Continuing Struggle for Human Rights Daniel Kanstroom [pages 269–288] Abstract: While some aspects of the “waterboarding” debate are largely political, the issues also implicate 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 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 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. ARTICLES Racial Reification and Global Warming: A Truly Inconvenient Truth Bekah Mandell [pages 289–344] Abstract: Scientists have warned of the dangers of climate change for decades, yet no meaningul steps have been taken to address its underly- ing causes; instead ineffective strategies to reduce CO2 emissions incre- mentally have become popular because they do not disturb the racial hierarchy that sustains the social, economic, and legal structure of the United States. The segregated land use patterns and transportation systems that dominate the U.S. landscape have reified race through the per- petuation of a distinct white over black racial hierarchy; those same land use patterns and transportation systems have contributed significantly to global warming by causing a dangerous spike in CO2 emissions. To address the root causes of climate change thus requires a dismantling of the land use and transportation patterns that protect racial hierarchy and preserve white privilege in the United States. As a result, a consensus of inaction has developed to prevent meaningful reductions in emissions. Looking Beyond Amnesty and Traditional Justice and Reconciliation Mechanisms in Northern Uganda: A Proposal for Truth-Telling and Reparations Cecily Rose [pages 345–400] Abstract: This article examines the role that amnesty and traditional practices play in fostering justice and reconciliation in northern Uganda. Al- though the twenty-year conflict involving the Lord’s Resistance Army (LRA) in northern Uganda has not yet come to an end and peace talks are still ongoing, many former LRA rebels have begun to return to their commu- nities after taking advantage of the amnesty offered by the government of Uganda. Consequently, reintegration, accountability, and reconciliation are currently prominent legal issues in northern Uganda. Literature on this subject, however, mainly touches upon how the amnesty process and the peace talks are in tension with the International Criminal Court’s pending arrest warrants for LRA leaders. This article, by contrast, argues that given the shortcomings of the amnesty process and the traditional practices, a truth commission and a reparations process could play a criti- cal role in northern Uganda’s transition from conflict to peace. NOTES Deprivation of Care: Are Federal Laws Restricting the Provision of Medical Care to Immigrants Working as Planned? Ryan Knutson [pages 401–436] Abstract: The Personal Responsibility and Work Opportunity Act of 1996 has severely limited immigrants' access to medical care. In enacting the legislation, Congress stated that immigrants were too great a burden on the U.S. medical system and cost the federal government too much. In reality, immigrants do not place an unduly high burden on the medical system. The Act also limits the autonomy of local medical providers by restricting their ability to provide preventive medical care, care that is better for patients’ health and, in the long run, more cost effective. Further complicating this issue is that medical providers are often unable to re- cover complete reimbursement from the federal government because the Act authorizes repayment only for services rendered to patients in an emergency condition. This note calls for a repeal of the anti-immigrant provisions of the Act and suggests that decisions regarding the provision of care are best left to medical providers at the local level. Birthright Citizenship: The Fourteenth Amendment’s Continuing Protection Against an American Caste System Nicole Newman [pages 437–482] Abstract: Intending to reverse Dred Scott and to abolish the southern “Black Codes,” Congress ratified the Fourteenth Amendment in 1868, guaranteeing automatic citizenship to most people born on U.S. soil. However, the Amendment’s framers specifically excluded particular groups, including those considered not “subject to the jurisdiction” of the United States. In 1898, the Supreme Court clarified the meaning of this Citizenship Clause in Wong Kim Ark, and citizenship by birth has been part of American jurisprudence ever since. Currently, many Americans oppose providing birthright citizenship to children of undocumented immigrants. This note examines the basic purpose of the Citizenship Clause and how Americans have made similar attempts in the past to ex- clude unwanted minority groups. Such attempts have failed over time and should be rejected now because they would recreate the hereditary caste system the Fourteenth Amendment sought to eliminate and are unneces- sary considering the existing legal barriers to chain migration. BOOK REVIEWS Recognizing Women’s Worth: The Human Rights Argument for Ending Prostitution in India Nicole J. Karlebach [pages 483–512] Abstract: In Indian Feminisms: Law, Patriarchies and Violence in India, Gee- tanjali Gangoli recounts how the Indian feminist movement, identifiable for its uniquely Indian concepts of womanhood and equal rights, has been effective in promoting equality for women. Gangoli attributes this success to the fact that Indian feminists have influenced legislation and dialogue within the country, while also recognizing the reality of intense divides among castes and religions. This book review examines the vague nature of Indian law in regard to prostitution, a topic that has been the source of extensive feminist debate. India should fully outlaw the practice of prostitution in order to protect the fundamental human rights of women. This ban must phase out prostitution and its related activities by providing education and commensurable profit-earning alternatives to women. Following Lozano v. Hazleton: Keep States and Cities out of the Immigration Business Rachel E. Morse [pages 513–538] Abstract: In Immigrants: Your Country Needs Them, Phillipe Legrain makes an economic argument for open borders. While he describes an ideal, the reality is that the United States will not implement an open border policy anytime soon. In recent years, Congress has been unable to reach a consensus regarding immigration policy reform. While Congress is stalled on the issue, there are twelve million undocumented immigrants living in the United States and that number is increasing. In response to the lack of a federal movement on the issue, many states, cities, and towns have begun passing their own laws regulating the rights of illegal immigrants. This book review examines the legality of these laws in light of recent challenges brought in federal courts and concludes that dur- ing this period of federal legislative transition, it is the responsibility of the courts to invalidate those local laws that violate the preemption doc- trine. Immigration and naturalization are exclusively federal legal terri- tory, and laws passed on the local level must not be permitted to thwart federal progress in creating and enforcing a uniform national policy. Legislating Beyond an Educated Guess: The Growing Consensus Toward a Right to Education Stephen E. Spaulding [pages 539–558] Abstract: In Retained by the People, Daniel A. Farber argues for a robust ren- aissance of Ninth Amendment jurisprudence in analyses of fundamental rights, because this amendment and its history most clearly encompass the Framers’ belief that certain rights are retained by the people. Farber argues that fundamental rights are at their most vulnerable when rooted in the inherently procedural structure of the Due Process Clause of the Four- teenth Amendment. This book review criticizes the factors Farber uses to determine whether a given right is fundamental and argues that legislation must be the most important factor in discerning fundamental rights that are so-retained, particularly when the Court has explicitly denied the exis- tence of a disputed right. When applied to the right to education, the overwhelmingly bipartisan passage of the No Child Left Behind Act indi- cates that this right is indeed retained by the people. The Medical Legal Partnership For Children: Policy Strategies For Expanding A Gateway Program Arianna Tunsky-Brashich [pages

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