1 The first legal memorandum on torture produced by the Bush administration's Office of Legal Counsel analyzed the definition of torture and found that it covered only “ extreme cases.” Jay, Bybee,Memorandum forGonzales, Alberto R.,Counsel to the President, Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A, Aug. 1, 2002,Google Scholar reprinted in Danner, Mark,Torture and Truth , 115-166 (2004).Google Scholar After a public outcry, this memo was replaced by Levin, Daniel,Memorandum forComey, James B.,Deputy Attorney General, Re: Legal Standards Applicable under 18 U.S.C.§§ 2340-2340A, Dec. 30, 2004. Published on the day of issue at the website of the Department of Justice; available at http://www.usdoj.gov/olc/dagmemo.pdf. The second memo used a definition of torture closer to international norms.Google Scholar

2 2 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, adopted Dec.10 1984, Treaty, S.Doc. No. 100-20 (1988), 1465 UNTS 85. Article 15 provides “ 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.” Google Scholar

2 Risen, James,Johnston, David,&Lewis, Neil A., Harsh C.I.A. Methods Cited In Top Qaeda Interrogations,New York Times , May 13, 2004, at Al.Google Scholar Johnston, David&Jr.Natta, Don van, Account of Plot Sets Off Debate Over Credibility, New York Times , June 17, 2004 at Al.Google Scholar

4 U.S. v. Moussaoui, 365 F.3d 292 (2004).

5 U.S. V. Moussaoui, 382 F.3d 453 (4th Cir., 2004).

6 Bundesgerichtshof decision of 4.3.2004, 3 StR 218/03, available at www.recht-in.de/urteile/master.php

7 Landler, Mark,U.S.Report Add Fog to 9/11 Retrial; Defendant Unaware of Plot, 2 Captives Said. International Herald Tribune, p. 3, 12 August 2004.Google Scholar

8 German Code of Criminal Procedure, § 136a. [Prohibited Methods of Examination]:

1. The accused's freedom to make up his mind and to manifest his will shall not be impaired by ill-treatment,induced fatigue, physical interference, administration of drugs, torment, deception or hypnosis. Coercion may be used only as far as this is permitted by criminal procedure law. Threatening the accused with measures not permitted under its provisions or holding out the prospect of an advantage not envisaged by statute shall be prohibited.

2. Measures which impair the accused's memory or his ability to understand shall not be permitted.

3. The prohibition under subsections (1) and (2) shall apply irrespective of the accused's consent. Statements which were obtained in breach of this prohibition shall not be used, even if the accused agrees to their use.

Available in translation at http://www.iusc0mp.0rg/gla/statutes/StPO.htm#244.

9 In addition to the rule of law principle, which would surely find a grievous violation of human dignity in using information acquired by torture, there is also the evidentiary principle of proportionality, which weighs the magnitude of a rights violation in acquiring the information to be used as evidence at trial against the importance of the information and the seriousness of the charge. A violation of human dignity would be hard to take lightly, given the central importance of the principle in German constitutional law. In addition, German courts are guided by principles of judicial integrity to not use evidence whose acquisition would cast doubts on the fairness of the judicial process. These three principles taken together would surely result in the exclusion of evidence acquired by torture, even if not torture performed on the accused.

10 Whitlock, Craig, 9/11 Cases Proving Difficult in Germany; Suspects May Be Sent Elsewhere for Trial,Washington Post , December 13,2004, at A10.Google Scholar

11 U.S.Department of State, 2004 Country Reports on Human Rights Practices, section on Morocco, available at http://www.state.gov/g/drl/rls/hrrpt/2004/41728.htm, released 28 February 2005.

12 A and Others v. Secretary of State for the Home Department, [2004] EWCA CIV 1123, [2004] All ER (D) 62 (Aug),(Approved judgment), 11 August 2004.

13 The Special Immigration Appeals Commission (SIAC) is a tribunal that has the power to review immigrationrelated detentions. The 2001 Anti-Terrorism, Crime and Security Act allows the home secretary to issue a security certificate and detain a person, but the statute allows the person detained to appeal to SIAC to challenge the detention. Given the language of the statute, however, SIAC's review is limited to determining whether the home secretary in fact had “ reasonable suspicion” that the person in question was a terrorist. SIAC, as a result, is operating with a low standard, and not surprisingly, has upheld all but one of the security certificates appealed to it thus far.

14 Id., at para. 253, 254.

15 A and Others v. Secretary of State for the Home Department, December 2004.