Governments plot to allow spy evidence in terror trials

By David Cronin

Date: 27/01/05

Diplomats from the EU and the United States have begun preparing a plan for allowing covertly obtained evidence to be used in trials against suspected terrorists, it has emerged.

Initial discussions took place in Luxembourg on 13-14 January on how security intelligence can be used in cases where its source cannot be divulged in court.

At this meeting - attended by officials from the departments of state, justice and homeland security in Washington - the US representatives said the question was vital for the credibility of the fight against terrorism. They are to submit a paper to the EU outlining what the obstacles to using such intelligence are and how they can be overcome.

The question of using such evidence to ensure convictions in terrorist cases has proven controversial since the 11 September 2001 attacks. Reports in the US have suggested the main reason why the Bush Administration has favoured using military tribunals to try the al-Qaeda and Taliban suspects held at Guantanamo Bay is because these could convict defendants guilty using evidence that would not be admissible in a federal court.

A spokesman for the US Mission to the EU in Brussels said that there was a recognition by policymakers on both sides of the Atlantic that difficulties in using certain evidence were "getting in the way" of fighting terrorism. But he said the implications of any proposal on human rights and civil liberties would be studied carefully. "There is very intensive legal research on the codes of both systems before any suggestions are made at a political level."

How evidence for use in legal proceedings can be gathered differs considerably between EU states. In Belgium, for example, an investigating magistrate has to issue a permit for a telephone to be tapped, whereas in the UK this can be done by police.

Stephen Jakobi from Fair Trials Abroad said the issue impinged on fundamental rights. "There is no way a fair trial can function without the ability to test evidence. I am very concerned about this particular problem because under the extradition agreement with the EU, the US does not have to provide any evidence."

Justice, the London-based civil liberties watchdog, called on EU policymakers to examine if there was any possibility that evidence obtained through torturing detainees could be used in legal proceedings. "We know that in Abu Ghraib prisoners were subjected to torture," said its director Roger Smith. "So US intelligence may well come from a tainted source." The recent Luxembourg meeting agreed several other steps on boosting transatlantic cooperation in the justice and home affairs field. These include:

• Allowing Europol to analyse frozen bank accounts jointly with the US authorities as part of a clampdown on terrorist funding;
• starting talks on developing formal links between Eurojust and the US judiciary, and;
• setting up joint investigation teams to deal with organised crime.

Europol's deputy director- general Jens Henrik Höjbjerg told the meeting that the level of contact between his office and the Federal Bureau of Investigation and Department of Homeland Security in America had "dramatically increased" in the past thirty months.

He said that Europol had not noticed any misuse of data which it had made available to US authorities.

Article says that in a meeting in Luxembourg on 13-14 January, attended by representatives of the US Government Departments of State Justice and Homeland Security, US and EU diplomats led initial discussions on how security intelligence could be used in cases where it was not possible to divulge its source in court. This would allow covertly obtained evidence to be used in trials against suspected terrorists.