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?