Sunday, January 20, 2008

The fruit of the tree of knowledge of good and evil

Recently Canada took the US and Israel off a list of designated "torture watch list" which had been compiled as part of training for Canadian diplomats. The list alleged that the US and Israel used "torture light", techniques such as sleep deprivation, forced nudity, isolation and blindfolding as part of their interrogation procedures.

Human rights groups denounced Canada's turnabout, based on the fact that both the US and Israel were close Canadian allies, "saying designation states which sanction torture should not depend on whether they are political allies." Although both the US and Israel have denied they use torture to extract information, the incident raises the question of how Canada -- or anyone -- should regard information obtained by methods of which they do not approve.

(Disclaimer: this post is not meant to criticize Canada. It simply takes a news story as a point of departure to examine certain issues.)

"In criminal law, the doctrine that evidence discovered due to information found through illegal search or other unconstitutional means (such as a forced confession)" is inadmissible is called the fruit of the poisonous tree. "The theory is that the tree (original illegal evidence) is poisoned and thus taints what grows from it." The fruits of the tree may not be eaten. But while the "fruit of the poisonous tree" doctrine may put a stop to legal proceedings, it does not impede intelligence sharing to the same degree. For example, Spain recently arrested 14 men of Pakistani and Indian origin who were planning to attack Barcelona.

Alfredo Pérez Rubalcaba, the interior minister, told reporters the 14 were arrested in Barcelona, the capital of the northeastern region of Catalonia, and that more arrests were expected. The police, who acted with the help of information from foreign intelligence agencies, raided several apartments, a prominent mosque and a small prayer hall, Mr. Rubalcaba and local Muslim representatives said.

Mr. Rubalcaba would not say what countries’ intelligence services had provided information. He said the police had confiscated material for making explosives, including four timing devices, during the raids. The detainees were Islamists who “belonged to a well-organized group that had gone a step beyond radicalization,” he said. (Italics mine)

The countries most likely to have provided this information to Spain are 1) Pakistan, 2) Britain and 3) the United States and 4) Israel. It might even have come from a Canadian, German or Dutch operative in Afghanistan. If any of those countries used methods of interrogation or surveillance methods that were not approved in Spain they could probably not be used in its courts. But what about the intelligence warning itself? Should the information about the names, locations and probable armament of the bombers not have been turned away as well? Wasn't this the "fruit of the poisonous tree"?

Some would argue that once the information was to hand, it was morally incumbent on the Spanish authorities to use it to save innocent lives. After all, even if one doesn't approve of eating cows once the steak is one the table it's a waste to ... but this issue raises the whole question of the "free rider" problem. Free riding is the economic term given to those who enjoy a benefit but who do not pay for them. "A common example of a free rider problem is defense spending: no one person can be excluded from being defended by a state's military forces, and thus free riders may refuse or avoid paying for being defended, even though they are still as well guarded as those who contribute to the state's efforts." And therefore Spain, Canada or any other country would still benefit from the actions of Israel, America or Pakistan even if they did not participate in them. So once the intelligence about the Barcelona bombers was available it would have been senseless to reject it.

The problem manifests itself in other settings. Recently, Thomas Walkom of the Canadian Star argued that Canada had no business sending troops to Afghanistan because it was America's war. "It's worth remembering that we keep sending soldiers to Afghanistan not because Canada has been attacked by the Taliban, but because our friends, the Americans, feel they are at war with them. The Dutch are in southern Afghanistan for the same reason. So are the British – who have paid a severe price at home for their decision to support Washington's various anti-Islamist wars."

If what Walkom wrote was true he would be right. Why should Canadian troops be used in anything but Canada's interest? But in reality the forces of the global Jihad are at war with Canada, Britain and the Netherlands too, not just the United States. And if it is true the Jihad is at war with Canada then the fact that New York, not Toronto, was attacked on September 11 is as relevant as the circumstance that London, not Vancouver, was being blitzed in the autumn of 1940. If the Jihad is at war with the whole West, then Canada's troops are in Afghanistan defending Canada, not America.

But if Walkom disagreed and did not accept that the Global Jihad posed any threat to Canada, then wouldn't it be logical to refuse any intelligence about threats to Canada likely to have emanated from Israel, Pakistan, or America obtained from the variouis 'anti-Islamist wars'? Wouldn't those be warnings about imaginary threats? Or at least, would it not be best to reject any intelligence that probably derived from document captures, prisoner interrogations or informers based in Afghanistan or Iraq? Isn't that the "fruit of the poisonous tree"? The issue about whether to take the US and Israel off the "torture watch list" goes deeper than the question of whether to make exceptions for 'immoral' behavior simply because a country is an ally. It is more fundamentally about whether a country has any right to condemn another for an act from which it expects to benefit itself.

The cited article about a "torture watch list" raises the more general question of whether we should refuse information obtained by sources that we do not approve of. We already know the legal answer. But what is the moral one?


Blogger NahnCee said...

I don't know that morality or legality) has anything to do with it. The question of torture and what constitutes torture is one more rope that the Lilliputs are trying to use to tie Gulliver down. It's just another way of taking pot-shots at America (and Israel).

I wonder how Canadians would react if jihadists perpetrated some huge major outrage on Canadian soil with a death toil in the thousands. IF they'd roll over and play dead like the Spanish, or stand up and fight like America has ... and what their definition of "torture" would then be.

1/20/2008 06:28:00 PM  
Blogger TigerHawk said...

Since I am in a narrow and unimaginative mood and am a couple of glasses into a bottle of Aussie wine, I have several disconnected thoughts.

Perhaps Canada took the US and Israel off the torture-watch list because we threatened to put them on the no-free-speech watch list for the Ezra Levant and Mark Steyn cases. I only wish it were true.

I suspect that many Canadians believe that they are not the targets of the jihad. Or, rather, that they can deflect the jihad toward the United States by virtue of appeasement. But there are some Canadians who konw that if they think of it that way they will lose all self-respect as a country. And they also know that if the Russians ever want to own the Arctic they had better have some credits built up with the United States.

The "fruit of the poisonous tree" argument from the law of evidence is meant to give effect to the defendant's rights against unwarranted searches or wrongfully obtained confessions. The analogy only partly works in the case you describe, because the arrested jihadis were not the ones who were tortured (if anybody was). The "fruit" argument in this case is, as you say, more about moral culpability than about deterrance (as it is in the usual criminal justice situation).

Finally, the situation you describe reveals the difficulty of applying criminal justice norms to war. When we pursue criminals, we know we will not catch many of them. The point is to catch enough of them that most other potential criminals are deterred. In that context, we can afford a lot of cushy procedural protections for the target -- if you do not convict a particular criminal, it really does not matter in the big picture. Compare to terrorism. In that situation, we are trying to prevent every attack ex ante. The demand for perfection makes it a lot harder to tolerate procedural protections, no matter what the NGOs demand.

1/20/2008 06:43:00 PM  
Blogger Wretchard said...

The usefulness of extraordinary rendition lies in the ability to benefit from things we can later condemn. Michael Scheuer described how it worked and what it's goals were in a statement before the House Committee on Foreign Affairs.

The CIA’s Rendition Program began in late summer, 1995. I authored it, and then ran and managed it against al-Qaeda leaders and other Sunni Islamists from August, 1995, until June, 1999.

A.) There were only two goals for the program: 1.) Take men off the street who were planning or had been involved in attacks on U.S. or its allies. 2.) Seize hard-copy or electronic documents in their possession when arrested; Americans were never expected to read them. 3.) Interrogation was never a goal under President Clinton...

The Rendition Program was initiated because President Clinton, and Messrs. Lake, Berger, and Clarke requested that the CIA begin to attack and dismantle AQ. These men made it clear that they did not want to bring those captured to the U.S. and hold them in U.S. custody. ... CIA warned the president and the National Security Council that the U.S. State Department had and would identify the countries to which the captured fighters were being delivered as human rights abusers. ... In response, President Clinton et. al asked if CIA could get each receiving country to guarantee that it would treat the person according to its own laws. ...I have read and been told that Mr. Clinton, Mr. Burger, and Mr. Clarke have said since 9/11 that they insisted that each receiving country treat the rendered person it received according to U.S. legal standards. To the best of my memory that is a lie.

In other words extraordinary rendition was a program to get somebody else to do the dirty work. It went beyond getting information. The only goal was to "take men off the street". Make them go away. Bada-bing.

Scheuer's regret was that there not even a chance to get reliable information at all. They were taken "off the street" and whatever secrets they knew went off the street with them. To extent that it took them "off the street" the US benefitted from the actions of others which could be plausibly denied and, when the occasion demanded, be roundly condemened before the television cameras. It was brilliant in a Clintonian kind of way. Lake, Berger and Clarke "made it clear that they did not want to bring those captured to the U.S. and hold them in U.S. custody."

Guantanamo was more than a physical half-way house. It was a halfway attempt at honesty: a way to get information out of al-Qaeda by questioning them somewhere between the gleeful brutality of unnamed foreign secret services and the unreality of the Geneva Conventions; a way of giving enemy combatants some rights, midway between the no-rights situation they had in the hands and the full legal protections of the Constitution. It was an attempt to take a modicum of responsibility for some of the unpleasant things that happen in war.

But nobody really wants the truth. Inevitably the half-and-half solution failed and the al-Qaeda detainees are now well on their way to gradually being given all the legal protections they lay claim to.

Clinton understood the seductive power of fiction. He read his Sinclair Lewis well. Don't tell people how sausages are made. Promise people safety but don't tell them where it comes from. As Bill Clinton said on National Public Radio there should be a way a commander in chief might allow rough questioning of suspects under extreme circumstances -- but he is sharply against a major change in the law. He also said, many years ago that youou can smoke as long as you don't inhale.

The sad thing about it is that Bill Clinton knows humanity well. We love stuff we don't pay for, or at least, can be told we won't be charged for. He's read our darkest desires with absolutely clarity and has slyly appealed to the worst of us. He won't be disappointed.

1/20/2008 07:54:00 PM  
Blogger Mətušélaḥ said...

Harper is not Chrétien. It's as simple as that.

1/20/2008 08:36:00 PM  
Blogger whiskey_199 said...

The dynamic Wretchard is half-measures designed for politicking as you describe Scheuer's account, then disaster as the half-measures fail.

What will happen domestically if we see another 9/11 or one greater and inevitably the FBI and other agencies cry "We could have prevented it but Congress|Media|Courts handcuffed it!" Aka CYA. Though maybe with a dose of truth?

IMHO at that point the desire to simply "settle the matter" by prevention on an ICBM scale is irresistible. The Left has effectively given us nothing between cruise missiles striking sand dunes and killing a few scorpions and full on nuclear retaliation.

That's the true measure of the moral bankruptcy of the "torture" debate -- what happens when the luxury of morality becomes replaced by the logic of survival?

1/20/2008 10:18:00 PM  
Blogger Annoymouse said...

“2.) Seize hard-copy or electronic documents in their possession when arrested; Americans were never expected to read them.”

Huh? This defies credibility. I have a folded piece of paper in my hand that I took from a terrorist suspect. He was doumenting his plans of world domination and the new caliphate. But I am not interesed in unfolding the paper and reading it. It is probably a lie anyhow. I am an intelligence agent and not imbued with a modicom of curiousity. Right!

“The Left has effectively given us nothing between cruise missiles striking sand dunes and killing a few scorpions and full on nuclear retaliation.”

The Left is itching to bring the US back into the fold of world Leftism. It will take a lot of bold moves to the left to satisfy the world Left but the future Democratic Administration is committed and up to the task. We can afford a socialist republic. All we need is to stop spending money on defense and increase on tax corporations and rich people.

Next the Left will molly coddle the Islamists, the two fit together like a virus and a gene, a perfect fit. The Leftists need children to condescend to and the Islamists need a viable host.

The Islamists will dig deeper into our culture like a cancer. We will not nuke Michigan.

1/21/2008 06:30:00 AM  
Blogger John B said...

Wretchard: It pains me to see anyone quoting Thomas Walkom of the Toronto Star (there is no such thing as the Canadian Star). The Star is an ultra-Liberal (capital letters because it's essentially an adjunct of the Liberal Party) newspaper beholden to its left wing views as part of its charter (the Atkinson Principles). Walkom is more left than most on that paper and frankly, he's an idiot.

Here is some further insite into this issue from today's National Post.

"Foreign Affairs Minister Maxime Bernier lashed out Saturday at a controversial document identifying the U.S. and Israel as countries it suspects of practising torture, calling it "wrong" and demanding it be rewritten."

"It contains a list that wrongly includes some of our closest allies. I have directed that the manual be reviewed and rewritten," said Mr. Bernier."

The manual is neither a policy document nor a statement of policy. As such, it does not convey the government's views or positions."

"Liberal foreign affairs critic Bob Rae was not surprised to hear that the document was being revised."

"It's incomprehensible to me that a document would establish an equivalency between the United States and Iran on the subject of the treatment of prisoners," said Mr. Rae."

"It's too hard to understand how it (the document) could have gotten this far," said Mr. Rae.

I find the comments by Bob Rae informative since he used to be the socialist Premier of Ontario before entering federal politics and switched to the Liberals.

1/21/2008 07:08:00 AM  
Blogger Ash said...

It has become pretty standard fare for many in the world to believe that the US tortures some of the prisoners it holds. Waterboarding is torture is it not? and many here support its use while interrogating terror suspects so why get you knickers in a knot if a Canadian manual states this fact?

1/21/2008 09:51:00 AM  
Blogger Peter Grynch said...

John Woo explains:
Last week, I (a former Bush administration official) was sued by José Padilla -- a 37-year-old al Qaeda operative convicted last summer of setting up a terrorist cell in Miami. Padilla wants a declaration that his detention by the U.S. government was unconstitutional, $1 in damages, and all of the fees charged by his own attorneys.

The lawsuit by Padilla and his Yale Law School lawyers is an effort to open another front against U.S. anti-terrorism policies. If he succeeds, it won't be long before opponents of the war on terror use the courtroom to reverse the wartime measures needed to defeat those responsible for killing 3,000 Americans on 9/11

1/21/2008 10:14:00 AM  
Blogger MarkJ said...

Recently, Thomas Walkom of the Canadian Star argued that Canada had no business sending troops to Afghanistan because it was America's war. "It's worth remembering that we keep sending soldiers to Afghanistan not because Canada has been attacked by the Taliban, but because our friends, the Americans, feel they are at war with them. The Dutch are in southern Afghanistan for the same reason. So are the British – who have paid a severe price at home for their decision to support Washington's various anti-Islamist wars."

The willful idiocy of Thomas Walkom's comments are nothing short of breathtaking.

Let's change a few words, shall we?

"It's worth remembering that we keep sending soldiers to the trenches in France not because Canada has been attacked by Kaiser Wilhelm, but because our cousins, the British, feel they are at war with them."

"It's worth remembering that we keep sending soldiers to Europe not because Canada has been attacked by the Nazis, but because our friends, the Americans, feel they are at war with them."

I like how Walkom inserts the qualifier "feel" toward the end of his blithe assertion. By doing this, he tries to leave open the possibilities that a) there really isn't a war going on--it's just an incredible simulation!--and b) if there is a war going on, it's not really worth fighting.

Walkom may think the above is "worth remembering," but, in making his assertion, he conveniently manages to forget a whole lot of other bitter lessons learned from 20th Century experience.

What a maroon.

1/21/2008 12:05:00 PM  
Blogger DoubleTapper said...

Wow, does this mean Israelis will get discount travel to Canada?

How does this effect the average Israeli/Jew in the street? Is Toronto now safe for Jews or are we still at risk of being knifed in the back by neo-Nazis?

For a huge land mass with only 33million people (lots of them are muslims)Canada sure does spend a lot of time preaching to the rest of the world.

It's a good thing they export their beer. It's not Foster's but it will do in a pinch.

1/21/2008 01:44:00 PM  
Blogger Zenster said...

Allow me to paraphrase Dennis Miller's line about animal testing.

If ending global jihad requires hooking up known terrorists to car batteries, I've got only two things to say:


1/21/2008 10:56:00 PM  
Blogger jj mollo said...

The whole "fruit of the poison tree" argument makes me think about Dr. Mengele and his "experiments". The question is whether we should use the results of his research to benefit humanity, or suppress the whole body of work as too horrible to contemplate. While not wanting to allow him the glory of his ill-gotten discoveries, most of us would respect the sacrifices of his subjects enough to offset our qualms.

The Supreme Court was acting on the assumption that police have a natural and enduring tendency to cut corners and take the easy evidence. The justices were therefore more willing to discard valuable information in order to protect potential, possibly innocent, future suspects. In the other case, we don't believe that future Mengele imitators will be influenced by our judgment. Nor do we believe, in our optimistic hearts, that it can ever happen again.

In the case of terror suspects, we are motivated more by the need to protect than to punish. All information must be used, no matter how obtained. Furthermore, if we look at what's happening in Mexico right now, it's apparent that the legal handcuffs we place on the police have limits to their plausible social utility. The first requirement is that society have general force supremacy. Yes, we try to maintain some semblance of due process and standards of justice, but sometimes practical concerns take precedence.

1/22/2008 11:45:00 AM  

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