A/HRC/16/50 Government of the United States of America introduced a new policy on the use of State secrets in order to “strengthen public confidence” and “provide greater accountability and reliability in the invocation of the state secrets privilege in litigation”, including more rigorous procedures for evaluating assertions of the State secrets privilege.25 The full practical implications of the new policy are not yet clear. Furthermore, State secrecy has continued to be invoked by the Government of the United States in cases since the policy came into effect, including as grounds for dismissal of legal proceedings.26 In Germany, the Constitutional Court ruled in July 2009 that the Government’s refusal to provide testimony and access to information to the Parliamentary Inquiry into alleged cooperation of its intelligence services in renditions was unconstitutional, in the absence of detailed reasons for the non-disclosure, and that a general risk of impeding relations with other States alone without detailed substantiation could not be a basis for refusing Parliament access to the information.27 38. As States rely increasingly on intelligence for counter-terrorism purposes, the importance of intelligence sharing and cooperation among States has become ever more important to national security interests. The increase in the sharing of information between law enforcement and intelligence agencies in different jurisdictions, however, raises risks that the information may have been obtained by illegal means by another State and poses challenges to accountability. 39. Legally obtained evidence enables the criminal justice system to work effectively to counter terrorism, while ensuring respect for human rights protections. Under international human rights law the use of torture and other cruel, inhuman or degrading treatment to elicit information from terrorist suspects is absolutely prohibited, as is the use in legal proceedings of evidence obtained by torture or ill-treatment, whether at home or abroad. States must ensure that the full range of legal and practical safeguards to prevent torture is available, including the right for anyone arrested or detained on criminal charges to be brought promptly before a judge and to be tried within a reasonable amount of time or to be released, and the right to challenge promptly the lawfulness of one’s detention before a court. National legislation should explicitly prohibit the use of evidence obtained by torture or ill-treatment. Evidence obtained in violation of other human rights must not be used in legal proceedings if the violation casts serious doubts on the reliability of the evidence, or the admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.28 In addition to ensuring domestic safeguards, States must 25 26 27 28 14 complainant’s illegal detention and rendition to risk of torture, and before the Inter-American Commission on Human Rights against the United States. See also Arar v. Ashcroft, 414 F. Supp. 2d 250, (E.D. N.Y. 2006); and Binyam Mohamed et al. v. Jeppesen DataPlan, Inc., 539 F. Supp. 2d 1128 (N.D. Cal. 2008). United States Department of Justice, memorandum on policies and procedures governing invocation of the State secrets privilege, 23 September 2009. The policy provides that the Department of Justice “will not defend the invocation of the privilege in order to: (i) conceal violations of the law, inefficiency or administrative error; (ii) prevent embarrassment to a person, organization, or agency of the United States government; (iii) restrain competition; or (iv) prevent or delay the release of information which would not reasonably be expected to cause significant harm to national security”. See for example Binyam Mohamed et al v. Jeppesen DataPlan, Inc, United States Court of Appeals for the Ninth Circuit No. 08-15693, 8 September 2010. Available from www.bundesverfassungsgericht.de/entscheidungen/es20090617_2bve000307.html (in German only). Rome Statute of the International Criminal Court, art. 69, para. 7.