Sunday, March 26, 2006

The US Defense Department's considerations on evidence obtained through torture

According to some reports in the US media, the US Defense Department is considering whether to make a formal rule, or has already made the rule, to the effect that the Military Commissions established to deal with the criminal indictments against the detainees at Guantánamo Bay may not use evidence obtained through torture. According to the reports, a senior Pentagon spokesman has said that the commissions would never have treated such evidence as admissible anyway, but that the proposed rule was designed to ‘eliminate any doubt in people's mind that the Convention Against Torture, specifically Article 15, is applicable to these commissions at Guantánamo.’

Specifically, Article 15 of the UN Convention against Torture of 1984 provides as follows:
‘Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.’

This makes clear that no statement extracted by torture can ever be admissible in any court of law, regardless of where and by whom it has been so obtained. Indeed, this point was affirmed with very considerable force by a recent judgment of the UK House of Lords (A v. Secretary of State for the Home Department [2005] UKHL 71, [2005] 3 WLR 1249).
There, the House of Lords had to rule on whether the use of statements extracted by torture was permissible in proceedings before the UK Special Immigration Appeals Commission, for which a legislative provision stated that it would not be bound by the ordinary rules of evidence under English law. This is clearly a similar situation to that existing with regard to the United States’ Military Commissions.
The House was unanimous in holding that there was a rule of English common law excluding all statements made under torture from all proceedings before any judicial body. This followed from the revulsion of torture which the common law had held at least since the 17th century. It was also very forcefully decided that the statutory rule freeing the Special Immigration Appeals Commission from the usual rules of evidence, such as the hearsay rule, could not have the effect of displacing the principle of common law against statements obtained by torture. The rule was far too fundamental for this to be possible. Considering that the Court of Appeal had taken a different position below (A and Others v. Secretary of State for the Home Department [2004] EWCA Civ 1123, [2005] 1 WLR 414), Lord Bingham of Cornhill added (at para. 51):

‘I am startled, even a little dismayed, at the suggestion (and the acceptance by the Court of Appeal majority) that this deeply-rooted tradition and an international obligation solemnly and explicitly undertaken can be overridden by a statute and a procedural rule which make no mention of torture at all.’

The United States would be well advised to take the same position.

For one thing, US law has inherited the attitude to torture which has prevailed in England since well before US independence (perhaps surprisingly, even Justice Scalia’s dissent in Roper v. Simmons may be read to allow for US courts having regard to such old rules of English law).
In fact, some members of the House referred specifically to the United States in their speeches. Lord Hoffmann’s remarks are clearly the boldest in this respect; making the point that torture was always ‘dishonourable’, his Lordship said (at para. 82):

‘In our own century, many people in the United States, heirs to that common law tradition, have felt their country dishonoured by its use of torture outside the jurisdiction and its practice of extra-legal “rendition” of suspects to countries where they would be tortured (...).’

The Economist later reported that this snide remark had ‘left the Bush administration fuming’ (issue of 16 December 2005, at 40).

Lord Hope of Craighead for his part recounted an instance of ‘extraordinary rendition’ that occurred between England and Scotland in 1684, and added (at para. 107):

‘There is a warning here for us. “Extraordinary rendition”, as it is known today, is not new. It was being practised in England in the 17th century.’

Furthermore, the House also referred at some length to the relevant rules of international law, specifically Article 15 of the UN Convention against Torture, and was very clear that the Convention required the conclusion reached by their Lordships under the common law (Lord Bingham of Cornhill, at paras. 35, 52; Lord Hope of Craighead, at para. 112).
Furthermore, the use of statements made under torture clearly also violates the right to a fair trial, guaranteed in Article 6 ECHR and Article 14 ICCPR (Lord Bingham of Cornhill, at para. 52).

The House was divided on whether evidence would also be excluded if there was only a real risk, but no firm evidence, that the witness statement concerned had been procured by torture. This problem is clearly quite relevant in the war on terror, where information may have been provided by foreign states, and where many hold such strong feelings against terrorist suspects that incidents of torture cannot be excluded in anti-terror operations and interrogations (this may not, however, be relevant to the charges of torture relating to Camp Delta at Guantánamo itself).
A narrow majority ruled, based on the wording of Article 15 of the UN Convention, that a statement would have to be ‘established (...) to have been made as a result of torture’ (Article 15). This argument is highly convincing as far as Article 15 is concerned, but the right to a fair trial may be another matter. There, the arguments advanced by the three most senior Law Lords remain to be considered. They believed that the exclusionary rule found would be rendered meaningless if it depended on the knowledge that torture had in fact been used. Such information is unlikely to be provided where the act of torture was committed by a foreign state.

But whatever the details of the exclusionary rule, it is good to see that the US government has expressed the correct opinion, and has reminded the Military Commissions – whether by a formal rule or by the simple restatement quoted above – of their duties under the UN Convention. This is obviously extremely welcome, particularly considering that the Military Commissions do not exactly stand as a paragon of virtue in other respects.

(Incidentally, the statement by the Pentagon spokesman may be construed as giving up on an opinion previously expressed by the US: when the US ratified the Convention, a declaration was added, stating that the whole of the Convention was not self-executing (see W. M. Cohen, ‘Implementing the U.N. Torture Convention in U.S. Extradition Cases’, Denver Journal of International Law and Policy 26 (1998), pp. 517, 519). If this was an interpretation, rather than an authoritative determination for the purposes of domestic law, it would mean that Article 15 could never be applicable to any particular court, but that it only required the US as a state to adjust its domestic law to accord with the Convention. This view finds precious little support in the article itself, and it is again good to see that the Pentagon has not made any such claim)