Howlers (Part Two)

Howlers (Part Two)
or, But We Don’t Want Our Power to be Limited
Chris Bray

(Part One is here.)

As I’ve argued before, the DOJ’s view of legal assistance treaties means that we have fewer protections against foreign governments than we do against our own. The new novella from the government again makes this argument explicit, using breathtaking language with all the customary flat affect of the bureaucratic scrivener. Time to rewrite that stupid Fourth Amendment thingie: 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 unless the British say so.

Even better that this case is being litigated in Boston.

In the novella, look at pages 60 and 61 (of the PDF file; pp. 48-49 of the brief). First, the government approvingly notes a decision from another court: “The Eleventh Circuit concluded that district courts should not evaluate MLAT subpoenas under the standards applicable to domestic subpoenas or under the law pertaining to civil requests under 28 U.S.C. §1782.” Then, in a footnote:

“In a similar vein, if modern MLATs incorporated by reference all of the substantive discretion available to review subpoenas under 28 U.S.C. §1782, and required a district court to test a subpoena under the standards set forth in Intel, it would defeat the very purpose of the MLAT. As noted above, the primary aim of these treaties was to limit judicial discretion and related litigation, and to speed compliance with foreign requests in criminal cases.”

Case closed: The United States government argues explicitly that it has acted with the intent of creating a class of subpoenas for which there is no “substantive discretion” for review. The primary aim of federal action was to serve the convenience of foreign governments at the expense of our access to the courts.