Use and Misuse of Evidence Obtained During Extraordinary Renditions: How Do We Avoid Diluting Fundamental Protections?

Abstract

This article considers and questions the ways in which grand schemes of rights infringement such as extraordinary rendition can translate into specific but also corrosive questions of accommodation in the law of evidence. This article enables us to see the extents to which questions considered to be either ‘grand’ or ‘minor’ in the context of counter-terrorism and human rights protections are, in fact, inter-connected. The article focuses on the use of information obtained from detainees who were subjected to extraordinary rendition. The article examines how the information obtained during these periods of extraordinary rendition might be used in any subsequent criminal prosecutions of the detainees. The article explores the rules in both U.S. Federal Court and the Military Commissions which govern the admissibility of evidence obtained during extraordinary renditions and questions whether evidence obtained under this practice should be admissible in any subsequent prosecutions of the detainees. The paper examines the likely corrosive impact that the use of this evidence could have on fundamental due process protections and concludes that while the admissibility of this evidence is problematic in any forum, trying these suspects in federal court is the best option available.

Keywords: Evidence, Extraordinary Renditions, Military Commissions, Federal Court, Terrorism Trials, Coerced Confessions

JEL Classification: K14, K33, K42