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Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights
may be held by the authorities. In the extreme, family members, friends, community
leaders, ministers of religion might all qualify for detention and interrogation on the
grounds that they have knowledge of individuals of interest to the authorities.
The Panel was concerned at the growing trend to assign to intelligence agencies the
power to detain people. In principle, intelligence bodies should not have detention
powers; they certainly cannot be held to lower standards in terms of the treatment
of detainees than their law enforcement colleagues; and any special investigative
powers they are accorded must comply with basic human rights safeguards. The
practical examples given below will testify to the importance of not diluting standards in this important arena of basic liberties.
2.2.1 Interrogation and arrest powers for the purpose of intelligence
gathering
The abuse of powers when key functions are handed over to intelligence agencies
was a common theme at many Hearings, most prominently at the US Hearing in
relation to the detention and interrogation programme of the US Central Intelligence
Agency (CIA). The primary purpose of the US rendition and detention programme is
supposedly to detain and interrogate persons suspected of involvement in terrorism
with a view to gaining intelligence information. Setting aside temporarily the question of the disputed status of such detainees (see Chapter Three), it is not disputed
that detainees have been held outside US territory in arbitrary and secret detention,
denying them access to lawyers and, until recently, to any effective remedy. Nor
has it been disputed that some have urged that the CIA be held to different (lower)
standards in the treatment of detainees than would military or law enforcement
agencies; or that provisions to bring the CIA in line with newly approved military
guidance on the proper treatment of detainees have been vetoed; or that the use of
coercive interrogations to extract information, thereby violating the absolute prohibition on torture and cruel, inhuman or degrading, has been engaged in and indeed
justified; and that in doing all this, impunity has been encouraged and the fabric of
international human rights and humanitarian law has been damaged.169
At Hearings in other countries, albeit to a very different degree, the Panel heard
concerns about the detention and interrogation of people by intelligence agencies
for the purpose of intelligence gathering. In Australia, for example the Australian
Security Intelligence Organisation (ASIO),170 can issue questioning and/or detention warrants. Such warrants can relate to persons who are not necessarily criminal
suspects, but who are believed to have information that will “substantially” assist
the collection of intelligence relating to terrorism. Australian Government officials
argued that the powers accorded to the intelligence services amounted to little more
than a simple extension of existing information-gathering methods. On the contrary,
169 See Chapter Three. Summary of the EJP United States Hearing.
170 Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (ASIO Act).
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