Friends of Hassan Diab: Human Rights Watch Condemns France’s Use of Intelligence as Evidence

By Don Pratt

On March 11, 2010, Human Rights Watch submitted a report titled “Concerns and Recommendations on France” to the UN Committee Against Torture. The section of the report condemning France’s use of intelligence as evidence is worth quoting at length.

“Human Rights Watch is concerned that French criminal procedures in terrorism cases lack sufficient safeguards to ensure that evidence obtained under torture or prohibited ill-treatment is not used at any stage of proceedings in France.

Intelligence material, including information coming from third countries with poor records on torture, is often at the heart of terrorism investigations. Our research indicates that there is insufficient judicial verification of intelligence material in terrorism investigations. In practice, security services provide prosecutors and specialized investigating judges with information they have obtained through intelligence-gathering methodologies, including cooperation with third countries with poor records on torture. Investigating judges may then order any number of investigative steps, including arrests, on the basis of this intelligence, without exercising any control over the legitimacy of the methods used to obtain the information.

As the Committee made clear in P.E. v. France, states have a positive obligation "to ascertain whether or not statements constituting part of the evidence of a procedure for which it is competent have been made as a result of torture." The absence of any mechanism or requirement on the part of investigative judges to verify whether the information was obtained under any form of ill-treatment is a breach of that obligation, because the information constitutes evidence for the purposes of a judicial investigation.”

The Human Rights Watch report goes on to cite a recent case in which French authorities arrested and convicted two individuals based on information obtained from another man while he was detained by the Département du Renseignement et de la Sécurité (DRS), Algeria’s infamous secret service agency, which is well-known for torture and other abusive treatment.

“The 2005 arrests of individuals allegedly plotting terrorist attacks in Paris are illustrative. These arrests appear to have been based largely on statements allegedly made by a man named M'hamed Benyamina while in custody of the Algerian secret service, the Department for Information and Security (Département du Renseignement et de la Sécurité, DRS). Benyamina, an Algerian residing legally in France, was arrested at an airport in Algeria in September 2005 as he was preparing to return to France. Benyamina told Amnesty International that Algerian officers told him French authorities had requested his arrest. Benyamina was held in illegal, arbitrary DRS custody for at least five months. Benyamina said he did not want to talk about treatment in DRS detention as long as he remains in Algeria for fear of reprisals.

There is evidence, based on dozens of cases of torture and ill-treatment collected by Amnesty International between 2002 and 2006, to suggest that the DRS routinely arrests and holds terrorism suspects in incommunicado detention, with no access to a lawyer, where they are at particular risk of torture and ill-treatment. Two men, Emmanuel Nieto and Stéphane Hadoux, were arrested in France in October 2005 on the basis of statements made by Benyamina during his detention, which he later retracted. Nieto and Hadoux were convicted of criminal association in relation to a terrorist undertaking in October 2008.”

The Human Rights Watch report also cites a shocking case in which a French investigating magistrate (juge d’instruction) conspired with the Syrian Military Intelligence (SMI) to extract a false confession from an Algerian man. The SMI is the same intelligence service that tortured Canadian national Maher Arar.

“… Said Arif, an Algerian national, [was] detained in Damascus, Syria in 2003. A French investigating judge provided Syrian authorities with a list of questions to ask Arif, accompanied by "answers" in parentheses, and traveled to Damascus to observe the interrogation. Arif credibly alleged he was tortured throughout the year he spent in Syrian custody and disavowed everything he is alleged to have said during that period. All pieces of evidence emanating directly from his detention in Syria were eventually excluded from his trial. Arif was nonetheless convicted of criminal association in relation to a terrorist undertaking in June 2006. ”

At trial, French lawyers for Mr. Arif declared that self-incriminating statements were obtained through torture while in Syrian custody and characterized the charges against their client as “part of an elaborate fiction constructed by the government to target men because of their religious and political beliefs”. An attorney for another client accused with Arif went so far as to accuse French intelligence services of planting evidence to achieve a politically motivated conviction.

The Human Rights Watch report continues:

“The courts appear to have allowed as evidence in some cases statements allegedly made under torture by third persons. Part of the evidence against Arif and his co-defendants, for example, came from a Jordanian man known as Abu Attiya, who was interrogated while in Jordanian custody using questions submitted by a French investigating judge.

Abu Attiya told Human Rights Watch of mistreatment he had suffered during the four years he spent in the custody of the Jordanian General Intelligence Department (GID). (He was released in December 2007 without charge). The GID has a record of arbitrary arrest and abusive treatment of prisoners. Defense arguments to exclude Abu Attiya's testimony on the grounds that it was obtained through torture were unsuccessful.

We are concerned that there are insufficient safeguards in place to ensure that investigating judges do not rely on evidence obtained in third countries under torture or ill-treatment in their investigations or to ensure the exclusion of such material as evidence in criminal trials of terrorism suspects.

The government should amend the code of criminal procedure to state explicitly that evidence extracted under torture or ill-treatment, regardless of its provenance, is not admissible at any stage of legal proceedings and investigations; and to impose a statutory obligation on the competent judicial authority to assess whether intelligence material was obtained under torture or ill-treatment.”

The Human Rights Watch report raises very important issues. However, the report’s narrow focus on torture and other forms of ill-treatment obscures a more basic fact: Information obtained by intelligence agencies—whether or not it comes from torture or ill-treatment—is of unknown provenance and is therefore unreliable. Intelligence is collected for fundamentally different purposes and under different rules than evidence. The secretive process by which intelligence is gathered is entirely at odds with the requirements of evidence, due process, the presumption of innocence, and proof of guilt.

Political science, international relations, and the daily headlines reinforce the impression that the work of intelligence agencies is driven primarily by the Machiavellian necessities of statecraft rather than by lofty principles of democracy, freedom, and les droits de l'homme. Spectacular intelligence failures like 9/11, Iraq WMDs, and the “extraordinary rendition” of innocents like Maher Arar to torture are only the most obvious examples of the frailties of “intelligence”.

Given the inherent unreliability and unfairness of material from undisclosed sources, it is hardly surprising that the Canadian Crown prosecutor has attempted (with success) to sanitize the English translation of the Record of the Case by replacing the word “intelligence” with “information”. At the end of the day, the bald, unsubstantiated, conclusory assertions at the heart of the case against Dr. Diab simply cannot be tested in court. The broader implications of using intelligence as “evidence” in a legal process are that it undermines the integrity of the courts, weakens democracy, and reduces freedom without increasing security.

Other relevant reports by Human Rights Watch: