Boston College: Where the Fourth Amendment Goes to Die

Boston College: Where the Fourth Amendment Goes to Die
Cliopatria – History News Network
Chris Bray

In a grotesque brief filed with the federal District Court in Boston on Wednesday (see below), the Department of Justice argued that there is no right of private intervention before the courts against MLAT requests from foreign governments. Watch me draw a circle: The Department of Justice argued that those requests are reviewable only by the Department of Justice. As they put it, “It is apparent from the text of the US-UK MLAT that the determinations of the Attorney General challenged in this case are textually committed entirely to his discretion.” (See this post for immediate background, and these posts for more.)

No role for courts, no role for anyone else — just executive decisions, undertaken at the request of foreign governments, that supposedly cannot be challenged in any way. And, as I’ve said before, the DOJ agrees to keep the purpose of the foreign government’s request a secret, so what we have here are legal proceedings with secret origins, undeclared purposes, and no right to challenge, limit, or appeal them.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon a secret foreign request that no one can challenge. If you think this sounds reasonable, there may be a job waiting for you at the Department of Justice. (“Is that the text of the Fourth Amendment?” “Um…Could be?” “You’re hired! We’ll pay to move you to Boston.”)

The implications of this argument are extraordinary. If it’s correct… Okay, let me start over again: If it prevails, then once the DOJ agrees to a foreign request, you have fewer rights against legal proceedings requested by foreign governments than you do in legal proceedings undertaken solely by your own government. If the British want your documents, and the DOJ says yes, that’s it.

So the premise here is that foreign governments have essentially unrestricted rights to obtain legal evidence in the U.S., subject only to the discretion of Eric Holder, and the courts and those subject to search and seizure have no avenue by which they can restrict the performance of the searches and seizure in question. I know I’m saying the same thing over and over again in different words. I mean to.

If it succeeds, this argument is the death of the Fourth Amendment — the death of it, period — in legal matters originating with foreign governments. If this is how MLATs work, we shouldn’t have MLATs.

And the courts seem to agree that sure, no problem, this is how MLATs work. The premise of the legal intervention that the DOJ is arguing against in this brief is that the US-UK MLAT imposes duties upon the Attorney General that he has failed to perform. (Like asking, Hey, is it a good idea to comply with this request, or is it a request made as part of a political campaign against longtime enemies of the foreign government that is asking me to get this information for them?) So look at pg. 5 of the DOJ’s brief, where they quote a federal appeals court’s opinion on the government’s obligation to comply with the terms of its own treaties. Try not to think of Alice falling down a hole, or K knocking on the door of the Castle:

“For any number of reasons, sovereigns may elect to overlook non-compliance with particular treaty requirements in given cases. Thus, a proper respect for the diplomatic choices of sovereign nations prompts courts generally to apply ‘a strong presumption against inferring individual rights from international treaties.'”

Read that again. Read it a few times.

The treaty says that the government should perform X, Y, and Z duties before it acts on a request from a foreign government, but they may elect to overlook non-compliance — in plain English, that means they can ignore the parts of the treaty they feel like ignoring, like the parts that require due diligence — and no one has any protection from the result, whatever it may be.

The still shorter way to say all of this is, “Fuck you, peasant.” But we say that in much more convoluted language, these days.

The Senate should revisit its approval of this treaty, and of MLATs in general. It won’t.

If you do research that foreign governments might want, don’t park your research materials where they can be found.

Government’s Opposition to Motion For Leave to Intervene