Finally Britain Rules Against Torture....What about US?

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December 9, 2005
Britain's Top Court Rules Information Gotten by Torture Is Never Admissible Evidence
By SARAH LYALL
LONDON, Dec. 8 - Britain's highest court thrust itself into the middle of a roiling international debate on Thursday, declaring that evidence obtained through torture - no matter by whom - was not admissible in British courts. It also said Britain had a "positive obligation" to uphold antitorture principles abroad as well as at home.

"The issue is one of constitutional principle, whether evidence obtained by torturing another human being may lawfully be admitted against a party to proceedings in a British court, irrespective of where, or by whom, or on whose authority the torture was inflicted," said Lord Bingham, writing the lead opinion in a unanimous ruling for the Law Lords. "To that question I would give a very clear negative answer."

The ruling dealt specifically with 10 men who were detained after the attacks on the United States on Sept. 11, 2001, and were held without charge in Britain on suspicion of being terrorists. But while the question at hand concerned only British courts, the ruling seems to have been made with the current international situation very much in mind. Several of the concurring opinions referred explicitly, and not flatteringly, to the United States.

Speaking of what he said was England's justifiable pride in its common-law rejection, centuries ago, of torture as a means to an end, Lord Hoffman brought his argument forward to the current era. "In our own century," he wrote, "many people in the United States, heirs to that common-law tradition, have felt their country dishonored 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 10 men are known informally as the Belmarsh detainees, after the prison where many of them were held. The case against them has been long, complicated and thick with secrecy. But the issue of torture came up as a result of the detainees' appeals to the Special Immigration Appeals Commission, which asserted its right to consider evidence that may have been obtained under torture in other countries.

Last year, the Court of Appeal ruled that such evidence was admissible and that the government had no obligation to investigate how possibly suspect evidence had been gathered.

Gareth Peirce, who represents eight of the detainees, said the judgment by the Law Lords, which applies to England and Wales, would reverberate.

"It's a modern judgment, in December 2005, but it's steeped in the legal and moral history not just of this country but also of the United States and international treaty obligations," she said in an interview. "We believe our colleagues in the United States who are fighting for the rule of law will take strength from the judgment."

Human rights groups applauded the ruling as a landmark that set a civilized standard for evidence in terror cases.

"The Law Lords' ruling has overturned the tacit belief that torture can be condoned under certain circumstances," Amnesty International said in a statement. "This ruling shreds any vestige of legality with which the U.K. government had attempted to defend a completely unlawful and reprehensible policy, introduced as part of its counterterrorism measures."

Similar questions - What constitutes torture? Is evidence obtained through torture admissible when the torture does not happen on American soil and is not explicitly authorized? - are being debated in the United States. Secretary of State Condoleezza Rice, in Europe this week, has been trying to answer charges that America routinely practices so-called extraordinary rendition, sending terror detainees abroad to places where they face possible torture.

Britain, America's firmest ally in the antiterror campaign, has been accused of allowing its airports to be used by American planes transporting such detainees. Members of Parliament are calling for an investigation into the charges.

Asked for his response, Prime Minister Tony Blair told the House of Commons on Wednesday, "In respect of airports, I don't know what you're talking about."

It is unclear what practical or immediate effect the Lords' ruling overturning the Court of Appeal's decision will have.

Rights groups that had brought the case said the ruling would force the government to do three things: re-evaluate any pending or future terrorism cases to determine whether evidence had been extracted by torture; stop seeking to deport terror suspects to countries where they might be tortured; investigate possible complicity in the American policy of rendition.

But in a statement, the home secretary, Charles Clarke, said the ruling would have no substantive effect on the suspects whose cases were at issue. Nor, he said, would the judgment have any bearing on the government's antiterrorism policies.

"The government has always made it clear that we do not condone torture in any way, nor would we carry out this completely unacceptable behavior, or encourage others to do so," Mr. Clarke said.

The Law Lords struck down the Court of Appeal decision in strong, stirring, indignant language that referred to centuries of English common-law precedent, to the moral weight of international treaties and obligations like the United Nations Convention Against Torture, and to the rights of individuals as enshrined in the European Convention on Human Rights.

"The principles of the 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," Lord Bingham wrote.

He referred to authorities from as far back as the 15th century to make the case that torture has no place in English law, or indeed in any law. He quoted the historian Sir William Holdsworth, who wrote in 1945 that "once torture has been acclimatized in a legal system, it spreads like an infectious disease" and "hardens and brutalizes those who have become accustomed to it."

The prohibition against torture "has now become one of the most fundamental standards of the international community," Lord Bingham continued.

"This prohibition is designed to produce a deterrent effect, in that it signals to all members of the international community and the individuals over whom they wield authority that the prohibition of torture is an absolute value from which nobody must deviate."



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