I like the term, and I got it from this post by Randy Paul at Beautiful Horizons about the British government deciding to allow information gained by torture in other countries to be used to identify suspected international terrorists.
The court ruled that the British government can use evidence obtained under torture outside the country when deciding to detain indefinitely foreign terrorism suspects, unless Britain was involved in the torture or encouraged it. The same material can also be considered by the Special Immigration Appeals Commission, which hears appeals by these suspects against indefinite detention. Much of the evidence before this commission is heard in closed proceedings to which the detainees and their lawyers of choice have no access. Instead, they are represented by security-cleared lawyers appointed by the government. Under the Convention Against Torture, to which Britain and more than 130 countries are party, evidence obtained under torture is inadmissible in “any proceedings” before a court. But the majority in the Court of Appeal said today that because the Torture Convention is not part of British domestic law, the Home Secretary has no obligation to enquire about how information from third countries was obtained when he certifies foreign nationals as suspected international terrorists.Mr. Paul notes that information gained from torture can be rather unreliable, but is that critically important if the government is only certifying that a person is suspected to be a terrorist? I'm not aware of the consequences of this official certification of suspicion, but it doesn't sound the same as an actual conviction for terrorism.
Mr. Paul claims that there's a moral obligation to refuse to consider evidence gained by torture, but is that true? Certainly using such information is not morally equivalent to actually performing the torture -- unless the user has an arangement with the torturer sufficient to make the user an accomplice. Perhaps a rejection of all such evidence is required to eliminate the temptation for such arrangements? Though information obtained by torture may be unreliable that doesn't make it useless; should innocent people be risked just because investigators don't want to pursue a torture-tainted lead?
The Human Rights Watch report continues:
In his dissenting judgment, Lord Justice Neuberger made clear the consequences of the majority’s decision, stating that "by using torture, or even by adopting the fruits of torture, a democratic state is weakening its case against terrorists, by adopting their methods, thereby losing the moral high ground an open democratic society enjoys."But I disagree. The "case" against terrorists is that they want to kill us, which is completely independent of whether or not we use torture. We don't fight terrorists because we think we're morally superior (although we are), we fight them to protect our own lives. The moral high ground is nice to have because it makes us feel warm and fuzzy, but it's incidental to the underlying cause of the conflict.
It's important to understand the difference between a judicial proceeding and an executive action. I'm not at all confident in my understanding of the UK government, but as it applies to America there's a world of difference. For example, the President can delegate his authority to detain enemy combatants to a commission which may then consider evidence and make rulings as a Presidential proxy. This is very different from a judicial court that derives its authority from Congress, precedent, and the Constitution. Keep this in mind as you read the comments.