NNOORRTTHH CCAARROOLLIINNAA JJOOUURRNNAALL OOFF IINNTTEERRNNAATTIIOONNAALL LLAAWW Volume 32 Number 1 Article 5 Fall 2006 EExxcclluuddiinngg TToorrttuurree:: AA CCoommppaarriissoonn ooff tthhee BBrriittiisshh aanndd AAmmeerriiccaann AApppprrooaacchheess ttoo EEvviiddeennccee OObbttaaiinneedd bbyy TThhiirrdd PPaarrttyy TToorrttuurree John Duberstein Follow this and additional works at: https://scholarship.law.unc.edu/ncilj RReeccoommmmeennddeedd CCiittaattiioonn John Duberstein, Excluding Torture: A Comparison of the British and American Approaches to Evidence Obtained by Third Party Torture, 32 N.C. J. INT'L L. 159 (2006). Available at: https://scholarship.law.unc.edu/ncilj/vol32/iss1/5 This Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Journal of International Law by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. EExxcclluuddiinngg TToorrttuurree:: AA CCoommppaarriissoonn ooff tthhee BBrriittiisshh aanndd AAmmeerriiccaann AApppprrooaacchheess ttoo EEvviiddeennccee OObbttaaiinneedd bbyy TThhiirrdd PPaarrttyy TToorrttuurree CCoovveerr PPaaggee FFoooottnnoottee International Law; Commercial Law; Law This note is available in North Carolina Journal of International Law: https://scholarship.law.unc.edu/ncilj/vol32/iss1/ 5 Excluding Torture: A Comparison of the British and American Approaches to Evidence Obtained by Third Party Torture' TABLE OF CONTENTS I. Introduction ....................................................................... 159 II. T he H olding ....................................................................... 162 III. B ackground Law ................................................................ 165 A. International Agreements ............................................ 165 1. The U.N. Covenant on Civil and Political Rights. 165 2. The U.N. Convention against Torture ................... 166 3. The European Convention on Human Rights ........ 166 B. UK Sources of Law ..................................................... 167 1. Special Immigration Appeals Commission Act of 1997 (SIA C ) ........................16.7............................. 2. The Anti-Terrorism, Crime, and Security Act of 2001 (A T SC A ) ...................................................... 168 3. Prevention of Terrorism Act 2005 ......................... 168 C. British Common Law .................................................. 169 D. American Sources ................................................... 171 1. C ase L aw ............................................................... 17 1 2. U.S. Anti-Torture Statutes ..................................... 175 E. The House of Lords v. The United States Supreme C ourt ............................................................................ 179 IV . A nalysis ............................................................................. 180 A. The Current Approach to Torture in the United S tates ........................................................................... 180 B. The Role of the Exclusionary Rule ............................. 187 V . C onclusion ......................................................................... 19 1 I. Introduction Since September 11, 2001, people have broached the subject of torture with increasing regularity as the United States and its t I would like to thank the editorial staff and board of the North Carolina Journal of Inernational Law and Commericial Regulation vol. 32 for all their hard work. I would also like to thank my wife, Nina, for putting (up with) me through law school. N.C. J. INT'L L. & COM. REG. [Vol. XXXII allies prosecute the war on terror around the globe. A long history of legal opinions and thought attends the subject of torture, but the issue has particular relevance in the context of the ongoing global war on terror. The goal of this war is to root out suspected terrorists before they strike. Naturally, such an initiative relies upon collaboration by the intelligence and security services of many nations. Because of the international scope of anti-terrorism efforts, it is not enough to deal with torture in the modus operandi of domestic police, intelligence, or military forces. At present, a suspect detained and interrogated in Southeast Asia may stand trial in the United Kingdom, and someone arrested by intelligence agents in the Middle East may face justice in the United States of America. Governments must concern themselves not just with their own agents, but also with the practices of those in other nations involved in the capture, incarceration, and interrogation of suspected terrorists. In December of 2005, the British House of Lords held that evidence obtained by torture is inadmissible regardless of who performed the torturous act.' A and others v. Secretary of State for the Home Department (A and others 11)2 was an appeal from the decision of a special commission charged with removal proceedings under the Anti-Terrorism Crime and Security Act of 2001 (ATCSA)3 This piece of legislation was a British response to the attacks of September 11, 2001.4 Like the Patriot Act in the United States,5 the ATCSA was designed to give greater protection to the public against international terrorism.6 Also like the Patriot Act, the ATCSA has generated controversy regarding certain of its provisions. One of the gravest concerns surrounding the ATCSA is the extensive power granted to intelligence and I A and others v. Sec'y of State for the Home Dep't, (A and others I1)[ 2005] UKHL 71, [2005] 3 W.L.R. 1249 (U.K.). 2 Id. 3 Anti-Terrorism, Crime, and Security Act, 2001, c. 24 (U.K.), [hereinafter ATCSA]. 4 A and others ll, [2005] 3 W.L.R. at 1256. 5 The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001) [hereinafter USA PATRIOT Act]. 6 See ATCSA, 2001, c. 24 (U.K.). 2006] EXCLUDING TORTURE security officials to detain and interrogate suspects.7 This note will compare the approach taken by the House of Lords with the prevailing legal trends regarding torture in the United States. Particular attention will be given to the effect of applying the exclusionary rule to evidence obtained by torture and the role of courts in enforcing a ban on torture techniques. This note posits that the contrasting approaches of the United States and Britain reveal a strange irony. Typically in the United States, violations of a suspect's constitutional rights by investigators can lead to the exclusion of the evidence obtained. But the American approach to using evidence obtained by torture seems to avoid the strictures normally imposed by the Constitution-specifically the exclusionary rule for evidence triggered by the Fourth Amendment as well as the Due Process Clauses of the Fifth and Fourteenth Amendments, which might also lead to the exclusion of such evidence as unconstitutionally obtained. By avoiding the normal sanctions of the criminal justice system, the American approach does not risk losing evidence obtained by torture to exclusion. In contrast, the British, who have no per se exclusionary rule for evidence, have adhered to a relatively more stringent standard for excluding torture-tainted evidence. This note will explore this seemingly counterintuitive result to the use of torture-obtained evidence. The importance of this inquiry is highlighted by recent U.S. Supreme Court decisions to allow federal courts to hear at least some habeas corpus petitions by detainees who, up to that point, were interrogated extraterritorially in completely extra-judicial proceedings.8 The U.S. courts have yet to decide the issue that was presented to the House of Lords in A and others H. Now that some detainees may have their day in court, the United States' policy on evidence obtained by torture deserves more scrutiny. The comparison with the British approach to torture-induced evidence may be instructive in predicting how American courts will react. The current approach of the American government, however, seems to indicate a willingness to subvert longstanding 7 See id. § 23. 8 See, e.g. Rasul v. Bush, 542 U.S. 466 (2004). But see discussion of Detainee Treatment Act of 2005 and Military Commissions Act of 2006 (greatly limiting detainee access to federal courts), infra section III(D)(2). N.C. J. INT'L L. & COM. REG. [Vol. XXXII principles of law in order to serve what are admittedly very pressing expediencies of national security in the war on terror. The paper will begin with an examination of the holding of the principal case, A and others II, in Part II. Part III will set forth some relevant background law on torture, first in the United Kingdom and then the United States. Finally, Part IV analyzes the current approaches to torture in the United States and Britain. Part V is a conclusion. II. The Holding The central holding of A and others II was announced by Lord Bingham of Cornhill. Though each of the seven Law Lords sitting on the panel wrote separately in the case, all agreed that evidence obtained through torture by officials of a foreign state without the complicity of British authorities must be excluded from use at trial.9 In Britain, torture is illegal, but evidence obtained unlawfully by British officials is not excluded unless it can be proven that admission would make the trial unfair."0 Broadly speaking, the British system does not rely on an exclusionary rule for illegally obtained evidence. However, the Law Lords still found that the use of evidence tainted by torture was per se inadmissible." The Law Lords' decision was based on English common law, the European Convention on Human Rights,12 as well as various components of public international law.13 The Law Lords split as to the proper burden of proof for evidence alleged to 9 A and others v. Sec'y of State for the Home Dep't, (A and others I1) [2005] UKHL 71, [2005] 3 W.L.R. 1249, 1250 (U.K.). 10 Julian Samiloff, InterrogatingE vidence, 156 NEW L.J. 5, 5 (2006). The British standard is somewhat comparable to the "fundamental fairness" due process standard in American law. See, e.g., Rochin v. California, 342 U.S. 165, 170-72 (1953) (stating that the Due Process clause exists in order to preserve the fairness and integrity of the system). The defendant would have to demonstrate actual prejudice from the introduction of the evidence, as opposed to a Fourth Amendment exclusionary rule, where evidence obtained illegally might be per se inadmissible. See generally Samiloff, Interrogating Evidence, 156 NEw L.J. 5. (2006) (regarding the British standard for the exclusion of evidence). I A and others 11, [2005] 3 W.L.R. at 1250. 12 Convention for the Protection of Human Rights and Fundamental Freedoms, Sept. 3, 1953, 213 U.N.T.S. 221 [hereinafter European Convention]. 13 A and others 11 [2005] 3 W.L.R. at 1267 et. seq. 20061 EXCLUDING TORTURE be obtained by torture, with a majority holding to a less-exacting "balance of the probabilities" standard rather than the "real risk" standard advocated by Lord Bingham.4 The case involved ten foreign nationals who had been residing in Britain.15 Each of the appellants had been "certified" by the Secretary of State for the Home Department as threats to national security under the ATCSA, meaning they were subject to removal from the country.16 The appellants challenged their certification under the ATCSA."7 The ATCSA indicates that such appeals for certifications are heard by the Special Immigration Appeals Commission (SIAC).18 Appeals from SIAC determinations are taken by the British courts of appeal, and the House of Lords in turn took this appeal from a lower appeals court's rejection of the petitioners' case.19 Among the issues the appellants raised before SIAC was the admissibility of certain evidence used against them.20 They challenged the evidence because they believed it was obtained from sources outside the U.K. through the use of torture by foreign intelligence or security forces.21 SIAC upheld the use of such evidence and this became the primary issue on appeal to the House of Lords.22 The Secretary of State argued that evidence should be excluded only where British agents were complicit in committing torture.23 The Secretary's argument was founded on the idea that reliance on evidence that "has or may have been obtained by 14 A and others I1,[ 2005] 3 W.L.R. at 1301-02 (L. Hope of Craighead, concurring in the judgment). Lord Bingham does not clearly state what it would take to meet the "real risk" burden. Id. at 1285. 15 Id.a t 1258. 16 See ATCSA, supra note 3, § 21 (detainees would be placed in deportation proceedings). 17 A and others 11, [2005] 3 W.L.R. at 1255. 18 ATCSA supra note 3, § 25. 19 For the appeals court decision, see A and others v. Sec'y of State for the Home Dep't., [2004] EWCA Civ 1123, [2005] 1 W.L.R. 414 (U.K.). 20 A and others v. Sec'y of State for the Home Dep't, (A and others 11) [2005] UKHL 71, [2005] 3 W.L.R. at 1255 (U.K.). 21 See id. at 1255-56. 22 See id.a t 1258. 23 Id. at 1281. N.C. J. INT'L L. & COM. REG. [Vol. XXXII torture inflicted in a foreign country without British complicity" is necessary for the efficient functioning of security and intelligence services.24 These services often rely, according to the Secretary, upon information gathered by foreign agents in nations with a less progressive stance on the use of torture. Without the ability to rely on those services, an important stream of information would run dry.26 While offering some deference to the vital importance of the national security interests asserted by the Secretary of State for the Home Department, Lord Bingham clearly stated that the admission of evidence obtained by torture went against the overwhelming weight of the British common law tradition and would not constitute merely an evidentiary problem, but an abuse of process.27 As he put it: "The principles of common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency[,] and incompatible with the principles which should animate a tribunal seeking to administer justice., 28 In addition, Lord Bingham found ample evidence in the European Convention on Human Rights and the United Nations Torture Convention to support his position.29 On the issue of whether evidence obtained by. torture is admissible, Lord Bingham spoke for the majority of the panel.3° On the question of the burden of proof, however, the Lords differed.3 Lords Bingham, Nicholls of Birkenhead, and Hoffman, would all have held SIAC to a "real risk" standard.32 This would mean that unless SIAC is able to determine that there is no "real risk" the evidence has been obtained by torture, the evidence is inadmissible.33 Lord Bingham did not make clear the exact burden 24 Id. 25 Id. 26 A and others 11, [2005] 3 W.L.R. at 1281. 27 Id. at 1259. 28 Id. at 1283. 29 Id. at 1284. 30 Id. at 1286. 31 Id. 32 See A and others 11, [2005] 3 W.L.R. at 1285. 33 Id.a t 1285. 2006] EXCLUDING TORTURE of proof for proving a "real risk," stating that it "[a]ll will depend on the facts and circumstances of a particular case."34 A majority, composed of Lords Hope of Craighead, Rodger of Earlsferry, Carswell, and Brown of Eaton-under-Heywood, ruled in favor of a different standard.35 They found, according to Lord Hope, that the SIAC should exclude evidence only if it finds "on a balance of probabilities that it was obtained by torture. 36 This balance of probabilities standard is less exacting, meaning that if "[the] SIAC is left in doubt as to whether the evidence was obtained in this way [using torture], it should admit it."37 The balance of probabilities standard is essentially a preponderance of the evidence burden; the occurrence of torture should be more likely than not in order to exclude the evidence obtained. III.Background Law A. InternationalA greements 1. The U.N. Covenant on Civil and PoliticalR ights The United Nations created the International Covenant on Civil and Political Rights (the ICCPR) in 1966, and the treaty entered into force in 1976.38 The ICCPR was created as one of two supplements to the Universal Declaration of Human Rights.39 Article 7 of the ICCPR reads as follows: "No one shall be subjected to torture or to cruel, inhuman[,] or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation."4 The ICCPR serves, in Lord Bingham's opinion, as evidence of the 34 Id. 35 Id. at 1296-1319. 36 A and others If. [2005] 3 W.L.R. at 1301-02 (L. Hope of Craighead, concurring in the judgment). 37 Id. 38 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter the ICCPR]. Both the United States and the United Kingdom are signatories. Id. 39 Universal Declaration of Human Rights, G.A. Res. 217A, at 79, U.N. GAOR, 3d Sess., lstplen. mtg., U.N. Doc A/810 (Dec. 12, 1948). 40 The ICCPR, supra note 38, art. 7. N.C. J. INT'L L. & COM. REG. [Vol. XXXII established nature of the prohibition on torture in international law.4 The ICCPR is regarded as taking a strong normative stance against torture, but has little in the way of enforcement possibilities.42 2. The U.N. Convention againstT orture The text of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the UN Convention) is fairly straightforward in regard to evidence obtained by torture. Article 15 of the UN Convention states simply that "[e]ach 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., 43 Thus, the Convention not only establishes a prohibition on torture, but also explicitly mandates an exclusionary rule for evidence obtained by torture.44 Both the U.K. and United States are signatories, but the U.S. signed with certain reservations that limit the enforceability of the UN Convention.45 3. The European Convention on Human Rights The European Convention on Human Rights (the European Convention) was established in 1950 under the auspices of the Council of Europe.46 The European Convention guarantees substantive rights as well as the possibility of legal redress for the violation of those rights in the European Court of Human Rights in Strasbourg.47 Article 3 of the European Convention prohibits the subjection of any person to torture.48 There is no listed exception 41 A and others II, [2005] 3 W.L.R. at 1270. 42 Jeremy Waldron, Torture and Positive Law: Jurisprudencef or the White House, 105 COLUM. L. REV. 1681, 1696 (2005). 43 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 15, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter U.N. Convention]. 44 Id. 45 S.E xEc. REP. no. 101-30, at 36 (1990) (articulating the U.S. reservations to the instrument). 46 European Convention, supra note 12. 47 Id. art. 32. 48 Id. art. 3.