All evidence gathered by intelligence agencies should be admissible in courts of law
Last updated: March 2, 2017
Intelligence agencies gather a lot of information that could be used in courts of law to fight terrorism and organized crime. Unfortunately, some of this information is inadmissible in courts. We see little reason to exclude certain kind of evidence collected by intelligence agencies from being used. In this debate we will prove why all types of evidence collected by intelligence agencies are permissible in courts of law.
We say that all evidence gathered by intelligence agencies is admissible in the courts of law. However, there are several things which our stance does not imply.
First, although any form of evidence is admissible, it does not mean that the courts have any obligations to use evidence just because it is there. Obviously the court has discretion not to use the evidence when it finds the use of it damaging to the public interest. So, our plan is fully compatible with public interest immunity principle.
Second, it certainly does not mean that we actually allow all forms of collecting intelligence. To be more precise, our plan does not implicitly promote torturing people. Methods which are legal to obtain evidence are to be decided by the legislation of a certain country. However, our plan directly implies that once we have evidence, we do not care about the method of how it was collected. It could have been talking to people, eavesdropping or intercept evidence – it is admissible in courts of law in all of these cases.
To make it more clear: under the status quo some methods of gathering intelligence are allowed after authorization of a relevant authority, while their use in courts of law is not (for instance, most intercept evidence in the UK). Our plan leaves the methods for intelligence gathering untouched and dependent on the legislation of a certain country, but makes it admissible in courts in every case.
We set up the debate in modern liberal democracies where the purpose of intelligence services is to collect information for the purposes of national security.
There is no fundamental reason for keeping some type of evidence inadmissible
First, why do we need intelligence agencies and what do they do?
Second, what methods do they employ?
Third, what are the differences of powers of intelligence agencies among different countries and why do they arise?
Fourth, when and why do we allow the use of some intelligence evidence in the court of law?
Fifth, what are the reasons of prohibiting the use of certain kind of evidence?
Common sense suggests us that the main reason of creating intelligence agencies is to collect information to ensure national security. Intelligence agencies are used for strengthening the states by preventing internal and external threats. Intelligence agencies track down huge organized crime. They are involved in prevention of terrorism. They are given rights to collect information which sometimes infringe on the rights of privacy for the reason that the overall benefit for the society and the state is simply greater.
For achieving their goals, the agencies employ a number of methods. The main methods include espionage, cryptanalysis, interception of communication, etc. This collection of information entails a certain level of intrusion into private lives of individuals. The intrusion to private lifes happens at the point when agencies actually listen to the conversations or make other secretive actions. The disclosure of the information later on bears little relevance to the action - the information had been collected already. The harm, if any, is already done and there is little reason not to use the evidence we already have. Instead, the whole purpose of collecting evidence is to be able to use it later on for prevention or for conviction of criminals. Gathering intelligence but not using it infringes on privacy while not benefiting us too much, since the criminals cannot be convicted.
Ultimately, the methods that can be employed by intelligence agencies depend on the legislation of a country. We believe that the methods of surveillance that can be used to a large extent depend on the society and what power they are willing to give to intelligence agencies. For instance, after an increasing number of terrorist attacks there has been a lot of pressure from the people to actually increase security measures although some freedom would have to be forsaken to achieve that greater security. The Guantanamo Bay example shows that there is substantial negative attitude towards intelligence agencies pushing too far; the people condemn torture and find it repugnant in a free society. So we think that in modern democracies it is the society which is somewhat able to put the limits to how far intelligence agencies can go.
The reasons for the use of intelligence evidence in the courts of law are quite apparent. The evidence is simply relevant to the cases and can influence the decisions, convicting criminals and terrorists. This will be developed later in our case.
Finally, so what are the reasons of prohibiting the use of certain kind of evidence? Once we accept the notion that some kind of evidence collected by intelligence agencies is admissible in the courts of law because of its relevance to the case, the reason for excluding a certain type of evidence must be a fundamental difference between the two types of evidence. For instance, the UK prohibits the use of intercept evidence. On the other hand, it allows eavesdropping. To prove that the prohibition must be kept in place either a) the fundamental difference between two cases should be proven; or b) it should be proven that the use of any evidence collected by intelligence agencies should be prohibited.
Usually it is contended that the most fundamental difference between, say, intercept evidence and more open methods of surveillance is the extent of intrusion into personal privacy. Here we would like to develop a case that any difference is a) weak, b) completely arbitrary. Here we want to continue taking the UK as the example. The legislation is quite confusing. The law forbids the use of intercepted evidence (mails, telephone calls) in courts of law. However, it allows evidence collected by eavesdropping[[http://www.opsi.gov.uk/acts/acts2000/ukpga_20000023_en_1]]. Conceptually, we see no difference as in both cases the individual is unaware that he is under surveillance. Say, there is a bug in the room. Two persons talk to each other. In another situation they talk with the phone while being intercepted. The substance here is the same: two people exchanging information under an expectation that nobody else hears them. The substance here is more important than the form. The fundamental difference is weak indeed, if any. The legislation is even more confusing. In the UK, any intercept evidence gathered by foreign intelligence is fully admissible or, for instance, interception in mental hospitals is admissible too. We see that the distinction between the cases is rather arbitrary.
Sometimes it is claimed that people might be framed by intelligence agencies by revealing only a part of evidence and taking it out of context. However, if that is true, the intelligence agencies can take information out of context in any case – it does not matter whether it would be interception or a direct conversation. This is why some checks on balances on the whole system are needed. For instance, this is why we have a separation of intelligence agency and the court in the first place – to ensure more fairness.
Our plan does not create additional incentives to gather information using illegal means
Under our plan the collection using illegal means remains prohibited in the first place. If intelligence agencies gathered evidence using illegal means and presented it at the court, obviously we would use the evidence due to its relevance. At the same time, the intelligence agency would be liable for breaking the law and would have to bear the consequences of their action according to the legislation. It is essential to realize that intelligence agencies should be very reluctant to admit that they had been gathering intelligence using illegal means.
First, it is a direct damage to them due to becoming liable for their actions. Second, prestige is of key importance to these institutions. Once the fact that illegal methods were used for intelligence purposes is known publicly, the society would put huge pressure on the institutions because of illegitimacy of their actions. That is likely to result in a change of the main officials and also the decrease in the powers of intelligence agencies. Hence, we can see that due to incentives not to use the illegally obtained information, intelligence agencies would be willing to use illegal means no more than they are at the moment.
Our plan does not jeopardize the collection of intelligence
Presenting evidence in courts indirectly reveals how the agency collected that information. For example, if the evidence is a transcription of a telephone conversation, then it tells that phone conversations were intercepted. We here can make a reasonable assumption that members of organized crime (and especially terrorists) already know that their cell phones might be tracked, that their internet chats recorded, and virtually all information they exchange can in principle be investigated by an intelligence agency. Knowing that, criminals use increasingly sophisticated means of communication and coordination, but motivation to upgrade their means of communication has little in connection with intelligence info being disclosed in courts. Even if keeping the intelligence gathering methods in secrecy has any value, there is a number of other ways how to learn about these methods. A lot of countries already use most of the evidence in courts of law (for instance, intercept evidence is admissible in the US, Canada). Besides, Discovery Science, Google, and criminal friends are also quite good resources of information about possible methods of interception.
The second issue is that sensitive information might be disclosed. As we have outlined in the plan, in order to preserve public interest immunity, information that could harm chances of successful investigation of the question at hand or would have broader implications for the public would not be revealed by the discretion of the responsible authority. For instance, in drug trafficking cases evidence against a middle-man would not be used if it would potentially reveal existence of undercover agents - prevention of nation-wide drug distribution is a far more important. We simply keep this common practice unchanged.
Our plan does not really endanger the ability of intelligence agencies to gather intelligence, nor it discloses all sensitive information. On the contrary, our plan is more flexible than the status quo. Under the status quo, certain types of evidence are explicitly inadmissible in the statutes of a country. We say that this is rather rigid. We believe that once we deal with threats as big as terrorism, it is rather myopic to apply one-size-fits-all approach. We think that a judge or another relevant authority can best decide whether it is worth to risk disclosing the methods of gathering intelligence or not, because they can take into account the circumstances which were not thought about when making the law. In the very end, this leads to better outcomes.
More evidence in courts of law would help to fight terrorism and organized crime
Let us elaborate more on correct conclusions. For example, drug lords are very hard to prosecute, because without information obtained by intercepting communication channels, using bugs to record sound, and infiltrating people into organization the cases can hardly be solved.
Moreover, if we do not allow intelligence information to be used in courts, we might end up in situations where criminals caught right before committing a felony can be accused of little more than illegal possession of weapons. Terrorist organization, plotting a new 9/11, could not be prosecuted since the evidence is not admissible in the courts of law.
We see that intelligence information is generally helpful in many cases. There are plenty of instances where intelligence evidence was of some help for convicting criminals. For instance, convicting the people who wanted to blow up commercial airliners several weeks ago[[http://www.planetdata.net/sites/intelligence/news.php?story=25819]]. Intelligence information is of help in many cases, both widely known (Godfathers of New York mafia) and other cases[[http://www.dailyrecord.co.uk/news/scottish-news/2009/05/08/revealed-mi5-helped-to-trap-scotland-s-sickest-paedophile-gang-86908-21341335/]] [[http://www.expressindia.com/latest-news/CIA-helped-India-Pak-share-26-11-intelligence-Report/424128/]]. This is not only a collection of random stories. Responsible authorities usually conclude that more admissible evidence would increase the likelihood of conviction for the criminals. For instance, Canadian government's report on electronic surveillance reaches these conclusions[[http://www.publicsafety.gc.ca/abt/dpr/le/elecsur_06-eng.aspx]].
The correct outcome is when people who threaten the stability and peace of the society get adequate punishment. It is just common sense to use information which is already gathered by intelligence agency.