BEWARE THE GIFT OF POISON FRUIT
agency is compiled into an intelligence report, and shared with a
number of domestic agencies. It is not uncommon for a domestic
law enforcement agency to not know the source of the information,
nor be given any assessment of its reliability. In such cases we must
also ask who has any duty to caveat the information or remove the
information from use.
Intelligence sharing networks
Intelligence sharing networks have been widely used between
coalitions of States both before and since 2001. These networks are
necessarily better addressed by international, rather than national
laws, but at least one commentator has asserted that such networks
have never been so constrained in practice:
“Intelligence sharing networks are constrained almost
exclusively by a shared professional ethos, rather than the
law. Such an ethos can exert some degree of accountability to
professional norms, but has been strained by the inclusion of
less professional and often ruthless intelligence services in the
network.” 17
Such networks reveal that information sharing is not just a ‘one to
one’ exchange, but form part of a complex web of information which
is made available, shared and used by multiple actors in network
countries simultaneously. Even in well-established networks, there
are no requirements that information obtained in violation of a
person’s human rights be withheld, nor that only States that comply
with human rights obligations be part of the intelligence-sharing
agreement. Currently, intelligence sharing networks seem to have
little appetite for cooperation requirements, revealing a tendency
of intelligence agencies to prioritise the perceived value of shared
information over human rights concerns. This current practice
demonstrates a lack of human rights compliant principles for the
sharing of information, but also an oversight gap which has yet to
be addressed.
17
16
E. Sepper, ‘Democracy, Human Rights and Intelligence Sharing’, Texas International
Law Journal, Vol. 46:151, 2010, 151–207, at 153.
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