See no evil, hear no evil, evidence admissible?

[Garbarsardar]

Seven law lords are about to face one of the most important questions they will ever be asked to decide: should evidence extracted by torture abroad be admissible in the British courts?

The case, to be heard three weeks from today, will be the first terrorism-related human rights case to reach the Lords since July 7, and the first to test whether in the judges' eyes the suicide bombings have really, as Tony Blair says, changed "the rules of the game".

Two out of three appeal court judges ruled in August last year that evidence obtained by interrogation of third parties in foreign countries, possibly by torture, could be used at the Belmarsh detainees' hearings before the Special Immigration Appeals Commission (Siac), as long as Britain had not taken part in the torture and did not condone it.

So is it torture OK if we, the civilized west do not take part in it?

Furhtermore: That case will be decided under the Human Rights Act, five years old next Sunday. Labour piloted the act through parliament, giving individuals the power to enforce their rights in the UK courts instead of having to trek to the European court of human rights in Strasbourg. Yet ministers have chafed under the results ever since.

Before the act, the grounds on which judges could overturn decisions by government ministers were much more limited. Now judges have to decide whether the decision was a proportionate response to a legitimate aim, giving them much greater scope to interfere.

"Thanks to the Human Rights Act, the judges have been given the right to second-guess parliament," the Tory leader, Michael Howard, wrote last month.

So what exactly can the judges do according to Mr.Howard? NOT upheld the law that empowered them with this jurisdiction?

Please keep US, Iraq, GWB and the illuminati out of it. I said please.

[Tacticalwithdrawal]

oooh, nasty question.......

I think the basic answer is that information obtained illegally (including torture) should never be used in a court of law full stop.

However, it gets a bit more interesting in situations where interogation methods which are illegal in UK are legal in the country where the information was obtained.

In such a case, however, I would still say the information should be allowed as it was obtained legally at source. However, I would not allow the information if it could be shown that UK agencies, or alllies, had the individual in custody and handed them over to someone to interogate in a way that is illegal in the UK. That is plainly wrong and is done purely to circumvent the rule of law.

"Thanks to the Human Rights Act, the judges have been given the right to second-guess parliament," the Tory leader, Michael Howard, wrote last month.

Firstly, bloody good thing that someone is in a position to check the politicians. The whole point of the UK system is that the judiciary is separate from the politicians, and that should always be the case.

Secondly, when Mr.Howard can actually show that his party can act as a credible opposition, then he can start complaining about other people!

[danzig]

Ill agree if the information was obtained in a country by methods that are legal in that country (even if not in ours) then it should be usable provided our goverments didnt turn over the person to that country with that intention. Of course I think we all realize realistically Brits/US etc all get around that little loophole so yes basically as long as its not us doing it the information should be usable. I realize it is a big moral issue/question but the stakes we are involved in are far too high and you sometimes have to get your hands dirty. Id question more how effective torture is in obtaining real information, alot of intelligence experts have expressed it simply doesnt work as well as more creative (and less morally objectionable) methods. Ill also say any such 'torture' should only ever be considered in the case of people who we KNOW have information (Khalid Mohammed being a prime example) and other methods have failed and not just random 'enemy combatants'.

[Tom Paine]

Torture evidence should not be admissible on several grounds. First, moral/ethical grounds; if we accept that torture evidence, we are condoning the practice of torture, and how far is it from that to practicing it? We must condemn torture in all cases, because there is no point winning if we have become that which we are fighting, because then we have already lost.

Second, political grounds. This nation has for years condemned the use fo torture, and helped in the writing of the UN Declaration of Human Rights; do we want to be seen to be reversing that decision, do we want to be seen as a nation of double standards, especially in this matter?

Finally, reliability. Torture is an extremely unreliable way to gather evidence for obvious reasons: ypu say what you think the interogator wants to her so he stops, also because it is foolish to accept the idea someone can hold up and accurately remember the truth under torture. Using that evidence is a flaw in any trial, bcause the evidence itself is under reasonable doubt then.

[nahirean]

I don't think torture is a viable means of evidence extraction. People will say anything to cease the torture.

[imb39]

Squeakus Maximus has expressed it perfectly. Even if the ethical element was ignored (very hypocrital, if you ask me), the fact that is unreliable seals it. How can justice be served if the system uses unreliable evidence. That's not justice... At least not justice that this country officialy champions.

[Oldgamer]

I agree that Squeakus has expressed it very well, indeed.

The question remaining is, "What is torture?" This question is quite apart from what we traditionally view as torture, such as beatings, electrical shocks, eviscerations (yep, the Brits used to do that!). What exactly is torture?

One of the most extreme definitions I've heard, recently, was the silly notion that torture is any method used to force a person to divulge information. By that definition, offering an offender a plea bargain in exchange for information would be torture.

Is an Islamic detainee tortured if he is forced to watch someone eat a pork chop? Some of these people, and their supporters in the real world, would say that they are.

What is torture?

[Tom Paine]

The ethical element is not really a consideration to be taken into account in a court of law, however; on the other hand it should be taken into account on a gneral principle being adopted to those courts, maybe...

[imb39]

The ethical element should be used in drafting the law if not applying it.

[Tom Paine]

Physical or psychological force. A deal is not force, it is a bargain. Forcing them to watch a (non-Muslim) pork-easter is not torture. Forcing them to eat the pork is, on the other hand. It is an interesting question, I must say... as I expect from other members of the WBK clan!

[Oldgamer]

Physical or psychological force. A deal is not force, it is a bargain. Forcing them to watch a (non-Muslim) pork-easter is not torture. Forcing them to eat the pork is, on the other hand. It is an interesting question, I must say... as I expect from other members of the WBK clan!

Thank you, sir!

And you have moved me to show proper respect for my Patron in my signature ...

[Tom Paine]

Thank you, sir!

And you have moved me to show proper respect for my Patron in my signature ...

Hoped I might have. As a soldier/mercenary (dog of war?) yourself, what would you define as torture, and what would you say the limits should be in three situations: in the field, that is on the battlefield when you first capture someone; in the PoW camps, when you've put them in detention; and in civil law?

[Oldgamer]

Hoped I might have. As a soldier/mercenary (dog of war?) yourself, what would you define as torture, and what would you say the limits should be in three situations: in the field, that is on the battlefield when you first capture someone; in the PoW camps, when you've put them in detention; and in civil law?

I was involved, only as an angry observer, in what I regarded as a torture situation in Vietnam.

As an observer, I was placed with a unit under the command (loosely) of the South Vietnamese government. This unit was comprised solely of ex-Werhmacht, including Waffen-SS, and they had little respect for the conventions of war or ... ahem ... borders.

Several NVA were captured in Cambodia. The "Brigade" wanted information from them, and they wanted it fast. They started cutting a man, literally, to pieces. The others, who had been beaten, quickly sang "like canaries". WIth as much emphasis as I can employ, these men used torture on the captured soldiers ... to say the least.

Recently, a US officer was placed in administrative confinement for what has been loudly proclaimed to be torture. It seems that he, like the Wehrmacht people above, needed information from a detainee and he needed it fast. As I understand the situation, the purpose was to save American lives. He started firing his weapon into the ground, close to the detainees genitals. The man talked, and the action led to the US ambush of a would-be ambuscade.

On the battlefield, it becomes necessary use techniques that many find discomforting, to gain information on the movements and intentions of the enemy. There is a fine line between pressure and torture. I personally don't think that the US officer used torture, but the courts-martial disagrees with me (finding him guilty). His biggest problem was that he did what he did in front of people who would confirm the detainee's story!

But in all of the situations you have mentioned, the "fine line" is the thing, isn't it? When does "pressure" become "psychological torture"? It would be easy to say, "it becomes torture when the pressure will result in permanent pyschological harm, including delayed-stress syndrome". However, this is not easily quantifiable, is it?

I decry the use of physical torture, in any case. But the world's militaries and political structures are going to need to closely define what is psychological torture.

One last thing ...

Concerning the plea-bargain. You said that it was an agreement between two parties. Have you ever talked to anyone who actually took a plea-bargain? Most of them did so because of the threat of losing the rest of their lives, and to gain at least a hope of freedom, in the future. If I say to you, "You should buy this car", and you do, that is a bargain. If I say to you, "Buy this car or die", that is something else.

[Tom Paine]

But in all of the situations you have mentioned, the "fine line" is the thing, isn't it? When does "pressure" become "psychological torture"? It would be easy to say, "it becomes torture when the pressure will result in permanent pyschological harm, including delayed-stress syndrome". However, this is not easily quantifiable, is it?

I decry the use of physical torture, in any case. But the world's militaries and political structures are going to need to closely define what is psychological torture.

Thank you very much for sharing what must be painful memories for you. It is enlightening when you do, so I urge you not to stop. Would you say the butchering (I use the term as in chopping up meat, not with implications) was torture, and using it as an incentive was therefore wrong? or wold you say it was the right thing to do because information was gained and the method proved successful?

One last thing ...

Concerning the plea-bargain. You said that it was an agreement between two parties. Have you ever talked to anyone who actually took a plea-bargain? Most of them did so because of the threat of losing the rest of their lives, and to gain at least a hope of freedom, in the future. If I say to you, "You should buy this car", and you do, that is a bargain. If I say to you, "Buy this car or die", that is something else.

I haven't, no. If it is as you say... it is the Prisoner's dilemna, I suppose; if you plead guilty you get a reduced sentence, if you plead innocent and get found guilty you get worse, so it is a risk based on evidence. However, is it the threat thats torturous, in which case much of life can be considered torture? You've opened up another interesting question, and for that I thank you.

[Kanaric]

Torture can get any kind of answer out of a man, even ones that the guy didn't know in the first place. Torture doesn't work simply because people will make things up just to get out of it. Relying on that for "intelligence", if you can call it that, would only make things worse.

[the Black Prince]

on the torture issue, i would say that this is a case of necessity.
the temporary harm and violation of 1 person to save the lives of thousands.
would you torture one person if you knew the information he had coould lead you to where the 9/11 hijackers were waiting before they set out?

as to the lords...
the lords cannot stroke down legislation.
they are only empowered by the HRA to::
under section 3, interpret the act so as to give meaning to the convention
under section 4: rule the act is incompatible, and ask parliament to amend it, if parliament refuses, the judges then have to uphold that act and a defendant would have to challenge parliament in the european courts.

but this case does not involve an act of parliament i believe but an action of government. and the government, like any other public authority, has to act within the bounds of the ECHR. if they don't want to, they need to get permission from parliament, in the form of an act, explicitly stating so, otherwise, the courts can rule under i think section 6 of the HRA, that the government has failed its obligation to uphold basic human rights

this is not a case in law, its a case of judicial review, the judges are reviewing the legality of anact of a public authority.

the ECHR states in article 3:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

but britain is not actually breaching that, we're not doing anything wrong, and if the information so obtained can save many lives, i have no probems with it.

if the information came from another EU member state, go take them to court in strasbourg

[Erik]

As stated before: people wil say anything and confess to any crime when tortured, the "evidence" obtained by torture is extremely unreliable.

The question should be:
Should British court only accept reliable evidence.
Or should they accept unreliable evidence with the risk of punishing innocent people?
This sounds like a no-brainer, but when dealing with terrorism it seems that many people care more about finding somebody to blame than about finding the correct person to blame.

[Tacticalwithdrawal]

As stated before: people wil say anything and confess to any crime when tortured, the "evidence" obtained by torture is extremely unreliable.

The question should be:
Should British court only accept reliable evidence.
Or should they accept unreliable evidence with the risk of punishing innocent people?
This sounds like a no-brainer, but when dealing with terrorism it seems that many people care more about finding somebody to blame than about finding the correct person to blame.

I think there is a third option, which may be the only way forward and is actually what happens in a court with normal evidence:

- the court should accept the evidence but have it's source identified.

That way the judge (and jury in the unlikely event there is one) can make a judgement on the case while in position of all the facts, while at the same time being able to make a reasoned judgement on the reliability of the evidence.

I would say that I do agree with Nihil, in a perfect world we should not admit this sort of evidence but that may be a case of cutting off our nose to spite our face. The question still is, are we willing to risk 'our' peoples' lives because of a moral stance?

[Tom Paine]

So we are willing to risk other peoples' lives, as tortur can (and does) go wrong, and export people to foreign nations where we know they will be tortured in the hope that we can get some ghood evidence? We risk innocents either way, and if we start allowing torture and condoninfg it (for that is what accepting evidence from it is) we lose our moral ground and we lose the war before it has really started, by becoming what we are fighting.