“The Logical (and Unconstitutional) Conclusion of the Government’s Assertions”

Boston College: Final Post
Or, “The Logical (and Unconstitutional) Conclusion of the Government’s Assertions”
Cliopatria – History News Network
Chris Bray

In a decision released on Friday morning (entire document is below; orders are on pg. 48), a federal judge rejected the effort by Boston College to quash subpoenas for confidential oral history materials regarding the Troubles in Northern Ireland. The subpoenaed materials will first go to the court for in camera review, an opportunity for the judge to draw some boundaries around the release of particular portions of the records. But this review seems unlikely to mean very much, for reasons that I’ll explain in a few paragraphs.

Start with some cold comfort: During the same week that our morally diseased political class is moving toward the expansion and legal solidification of indefinite military detention, the court said out loud that the executive branch was making an outrageous argument about its own power and its relationship to the judiciary. “This Court is asked to determine what sort of discretion an Article III court has to review or quash a subpoena brought under the authority of the UK-MLAT,” Judge William G. Young writes (pp. 1-2). The United States in 2011: We’re arguing over whether or not the courts are allowed to review subpoenas, or just have to hand them out when the executive branch says so. Thomas Hutchinson was dignified and restrained in comparison to the governmental creatures of our own moment.

Take a moment to scroll down and look at the long blockquote at the top of pg. 15, which quotes an opinion from the 9th Circuit in another MLAT case; the 9th argued that the executive branch was trying to usurp judicial power, and “convert the judicial branch into a mere functionary.” Young finds that the DOJ is up to the same thing again, writing, “this Court wholeheartedly agrees that this is the logical (and unconstitutional) conclusion of the government’s assertions here.”

Amazingly enough, the judiciary declines to self-neuter, as if it still wants to be a whole separate branch of government: “This Court holds that a United States District Court has the discretion to review a motion to quash such a subpoena, under the statutory authority conferred by 18 U.S.C. § 3512 and the framework articulated in the UK-MLAT” (pg. 26).

But it’s all downhill from there. Most significantly, Young entirely accepts the premise that the subpoenas in question are being pursued as part of a serious criminal investigation, rather than as an act of political theater; nothing in his decision takes note of the fact that the crime being investigated was ignored for forty years by a politicized police agency. See pg. 41, for example (finding that the subpoenas are “relevant to a nonfrivolous criminal inquiry”), or pg. 45: “These are serious allegations and they weigh strongly in favor of disclosing the confidential information.”

This acceptance of premises can only have serious effects during Young’s in camera review: he does not perceive himself to be examining evidence that is being sought for political reasons and that will have political uses. How many boundaries is he likely to draw?

Young also closes another important door, finding that the courts cannot examine the DOJ’s treaty obligation to perform due diligence before executing an MLAT request from a foreign government.  “Unlike the motion to compel, the executive decision that the request is not subject to a specific limitation is not reviewable by this Court,” he writes. The DOJ can be all kinds of awful and useless in its consideration of foreign requests, and it’s nobody’s business but Eric Holder’s. The attorney general’s diligence is the attorney general’s business.

Still, a ray of light shines through one thin opening. Young’s decision signals, with flags and banners, that an appeal wouldn’t be a bad idea. That’s because some issues at hand have never been taken up by the 1st Circuit, the appellate court that includes Massachusetts, and some have never been examined by the courts at all. See the references to matters of “first impression” on pg. 16 and pg. 22.

The likelihood of an appeal, though, depends on a desire to fight on. The unmistakable public silence from Boston College, and the politeness of their arguments before the court, don’t inspire much hope. But then, academia as a whole has been almost entirely silent about these subpoenas. That silence, and the indifference it implies, will continue. After all, we’re only talking about tearing down the confidentiality of academic research. The mere governments of the world are nowhere near as terrifying and powerful as a real behemoth like the Wisconsin GOP. Academics have a shrewd eye for the really important stuff.

In other news, this will be my last post at Cliopatria. I thank everyone, and especially Ralph Luker, for the years I had a forum here.

BC Decision

Boston College: The Inextinguishable Rule of Law

Boston Collge: The Inextinguishable Rule of Law*
(*Knock on Wood)
Cliopatria – History News Network
Chris Bray

Below, a brief filed in federal court today by lawyers for two of Boston College’s Belfast Project researchers, who were responsible for conducting oral history interviews with former members of paramilitary organizations in Northern Ireland. The Department of Justice continues to pursue subpoenas for materials from confidential interviews with former members of the Provisional IRA, acting on a request from the government of the United Kingdom (which almost certainly originated in the PSNI). Most recently, the DOJ had asked a judge to refuse to allow BC’s researchers to join the discussion before the court. This new brief continues the argument for that intervention, and is important for the claims it makes about the legal rights of individuals following requests made by foreign governments under the terms of mutual legal assistance treaties (MLATs).

Again, I’m no longer providing detailed background for what has become a very long series of posts, on the assumption that anyone who cares has been following the story for a while. But go back and take another look at the government brief that prompted this reply. The DOJ, I wrote, was arguing for a position that MLATs effectively create “legal proceedings with secret origins, undeclared purposes, and no right to challenge, limit, or appeal them.” A foreign government makes a request; the DOJ decides to honor it; the end.

The brief below makes detailed arguments about federal statutes and case law that I won’t claim to understand or to analyze. But the heart of the argument is that the DOJ has unreasonably invented a set of legal standards that shield it from scrutiny, and that cannot be found in the treaty that governs the matter: “The US-UK MLAT neither extinguishes the Intervenors’ rights under domestic law, nor permits the Government to circumvent the Federal Rules in its pursuit of a Subpoena.”

This argument continues to be important for many reasons, not the least of which is the DOJ’s outrageous claims about executive power that cannot be limited or reviewed.

Related, a quick note about another source for information: Letters Blogatory, a legal blog focused on international judicial assistance, has created a page just for updates on the Belfast Project subpoenas.

Today’s brief follows.

Dec 5 Intervenor Reply

Boston College: Pushing Holder

Boston College: Pushing Holder
Cliopatria – History News Network
Chris Bray

It’s been political all along, so it’s finally becoming political.

While the District Court in Boston has taken no action since October 5 regarding the federal government’s effort to subpoena archival material about paramilitary groups in Northern Ireland (background is here), the heart of the fight is no longer in the courtroom. I’m still working on details, but the outline is clear: Members of Congress are becoming concerned about the subpoenas directed at Boston College, and are beginning to express those concerns to the Department of Justice.

The emerging change in political climate is the result of the work being done by three Irish-American organizations: the Irish American Unity Conference, the Brehon Law Society, and the Ancient Order of Hibernians. At the bottom of this post, for example, is a letter sent last month to Attorney General Eric Holder (which is also available on the IAUC website). Irish-American activists have met with members of Congress, and have been trying to get meetings at the State Department and in the White House.

It’s working. This is information at fourth-hand, for reasons I’ll explain in a moment, but Senator John Kerry recently called Holder to express his concerns about the subpoenas, asking the attorney general to re-evaluate the harm they might do to the peace in Northern Ireland. Holder’s initial reaction was, apparently, that the courts would figure it out. But Kerry pressed for a better answer, telling him that this use of the US-UK MLAT contradicted the assurances he was given when he voted for the treaty, and Holder promised to take a fresh look at the question.

I can’t figure out exactly how serious that promise was, because I’ve only been able to talk to someone who talked to someone who talked to someone who talked to Kerry. I asked the DOJ press office if they could confirm that Kerry and Holder had discussed the subpoenas. Their complete answer: “Thanks for reaching out but we would decline to comment.”

But Kerry’s office gave a more interesting answer. Whitney Smith, Kerry’s press secretary, said she “can’t confirm private meetings,” but also offered this statement: “Senator Kerry and his staff have sought information and been kept up to date on the subpoenas issued to Boston College. Obviously this is a sensitive issue, and while it is an issue for the courts, Senator Kerry has urged all parties involved to carefully consider any actions that could affect the peace process.”

That’s a non-denial that confirms the basic details: Kerry is watching, and urging “all parties” to think hard about the effect their choices will have on the ground in Northern Ireland. Other members of Congress are also looking closer at the subpoenas, and I expect to have more detail shortly.

The Department of Justice has made a mistake, and will be hearing about it more and more in the coming days.

More soon.

I’ve redacted home addresses and personal phone numbers at the end of the letter below, but it’s otherwise as written.

IAUC Letter to Eric Holder

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

 

Taking Aim at the DOJ

Boston College (Cont.): Taking Aim at the DOJ
Cliopatria – History News Network
Chris Bray

In a brief filed with the federal district court in Boston on August 31 (see below), a new party joined the legal conflict between Boston College and the Department of Justice. The new player sharply changed the tone and substance of the exchange, noting the political nature of the underlying investigation and directly accusing the DOJ of serious professional failures. Two and half months ago, in back-to-back posts at Cliopatria, I wrote that the DOJ was engaged in misfeasance, but that they were rounding the corner toward malfeasance. Now someone has placed a version of that argument before the court, and the results suggest the presence of an internal conflict at BC.

I’ll skip most of the background — see the two links above for that — but at least some of the recent background is necessary to make sense of the new developments. Since the DOJ (twice) subpoenaed oral history materials archived at BC that relate to the Troubles in Northern Ireland, the university’s responses have been distinctly limited and polite, arguing in broad terms for academic freedom but not attacking the purpose of the DOJ’s request. But woven in with their restrained and businesslike tone, BC’s responses have also had an interesting subtext. As I discussed here last week, a recent brief from BC’s lawyer suggested that it would be difficult for the university to respond to subpoenas broadly demanding all oral history materials in their Belfast Project collection that provide information on the murder of Jean McConville, becausethey would have to go through all the interviews and figure out what’s in them, and they would have no idea where to even begin.

Remember that the Belfast Project wasn’t directly undertaken by BC faculty. Instead, the interviews in the project were overseen by a longtime journalist, Ed Moloney, and conducted by former members of loyalist and republican paramilitaries in Northern Ireland; interviews with Provisional IRA members were conducted by Anthony McIntyre, a former PIRA member who earned a PhD in history at Queens University Belfast.

So now police in Northern Ireland are seeking oral history material compiled for a project sponsored by an American university but carried out by outsiders, and the American university is signaling that oh yeah, we don’t actually know what any of that stuff says. While BC wages a careful and modest courtroom effort without a corresponding political or public relations campaign, the university is also coughing and winking at the court and the DOJ to distance itself from — well, basically from itself. Boston College is not dug in for war to the knife; they are politely suggesting that the subpoenas be quashed, and claiming no knowledge of the material at stake.

Now. Suddenly, someone has walked into the courtroom without having been summoned there: Moloney and McIntyre, the journalist who oversaw the project and the outside historian who conducted the IRA interviews. Asking leave to intervene in a case that centers on their work product but doesn’t formally involve them, Moloney and McIntyre have made an infinitely more aggressive and direct set of arguments than anything BC has managed.

First, the lawyer for the Belfast Project participants argues that the subpoenas in question are meant to serve an inherently political investigation, opening political matters that have had a political settlement. The subpoenas rip open a closed matter, the brief argues, since “the subject matter of the U.K. government’s request involves a politically-related offense committed prior to the Good Friday Agreement.”

This claim is the foundation for an insistence that the Belfast Project interviewers had good cause to promise confidentiality to their subjects: “In the execution of this duty, the Intervenors were, and are, entitled to rely on solemn assurances from the Government of the United Kingdom to the United States that politically-related offenses preceding the U.S.-brokered Belfast Agreement of April 10, 1998 (the “Good Friday Agreement”) would not be reopened.”

Finally, the brief notes, the U.S. Senate approved a Mutual Legal Assistance Treaty between the United States and the United Kingdom on precisely the explicit understanding that the treaty was “not intended to reopen issues addressed in the Belfast agreement.”

Now it gets really good, as the brief turns from underlying matters to an analysis of what it all means. Arguing that the DOJ is obligated to evaluate requests made under legal assistance treaties, rather than just acting on them, and to decide before proceeding whether or not a request from a foreign government is legally proper and politically appropriate, the brief filed for Moloney and McIntyre argues that federal prosecutors failed to do their job before they pursued subpoenas for a political investigation undertaken by a foreign government: “The Attorney General failed in these nondiscretionary duties under the US-UK MLAT. Alternatively, if the Attorney General can demonstrate that he engaged in such an Article 18 consultation or Article 3 consideration, his actions in issuing subpoenas in contravention of the clearly expressed sense of Congress was arbitrary, capricious or an abuse of discretion, or otherwise not in accordance with law.”

Strong argument, strong language: the attorney general failed in his duties.

So then see this story from yesterday’s Boston Globe, and note what a BC spokesman had to say about the intervention of Moloney and McIntyre: “We obviously share the same goal in the outcome of this matter, but these filings, which we are just now reviewing, may not necessarily reflect the views of Boston College.”

Feel the warmth.

In one other new development, the assistant U.S. attorney principally responsible for the BC subpoenas has informed the court that he is leaving the case and quitting his job. Under the terms of the U.S.-U.K MLAT, federal prosecutor Todd Braunstein was the commissioner responsible for promulgating the subpoenas. Until and unless he is replaced, no one is carrying the ball for the government. Braunstein filed his notice with the court the day after the lawyer for Moloney and McIntyre entered the case. I’d ask him why he’s leaving, but you already know what he’d say. (If you’re wondering what my source is for all of this information, I registered months ago for a Pacer account.)

That’s where things stand: new participants, new and far more aggressive argument, and a distinct chill radiating from the BC campus. Whatever comes next will be interesting.

Dornan Brief

Fishing Harder

Boston College (Cont.): Fishing Harder
Cliopatria – History News Network
Chris Bray

A brief and inelegant update: Boston College received new federal subpoenas, earlier this month, for oral history materials relating to the Troubles in Northern Ireland. The August 2 subpoenas, filed under seal on behalf of the Police Service of Northern Ireland and revealed a few days ago by BC’s public filing of a motion to quash, demand “any and all interviews containing information about the abduction and death of Mrs. Jean McConville” (see this post for background). McConville’s murder has been in the background of the DOJ’s efforts all along; this new set of subpoenas makes explicit an investigative effort that was both unstated and pretty clear.

More remarkably, these new subpoenas threaten to expose oral history sources that have so far been protected. While the original subpoenas served on BC in May demanded interview materials from two people already publicly known to have spoken to researchers, the new subpoenas would expose up to two dozen other interviewees whose identities have never been revealed.

The new subpoenas also attempt to turn Boston College into an investigative agency, demanding that BC examine every Belfast Project interview in its possession so it can hand over all of the information it may have in its archives regarding McConville’s death. As BC’s lawyer writes in his motion to quash, “The second subpoenas would require the university to perform a detailed analysis of all the Belfast Project interview materials to ascertain if they contain information ‘about the abduction or death of Mrs. Jean McConville.’ The volume of work required to undertake that analysis, and to make determinations about what might constitute such information, would impose a substantial burden on Boston College.”

As long as the PSNI is taking shortcuts, they should just ask BC to go ahead and arrest McConville’s killers for them. Of course, this assumes that the PSNI actually wants to catch McConville’s killers, so never mind.

In related news, this morning’s Boston Globe has an op-ed piece from Ed Moloney and Anthony McIntyre, respectively the director of BC’s Belfast Project and its lead researcher on the IRA.

I’m traveling — more later.

Boston College (Cont.): Fixing a Broken Frame

Boston College (Cont.): Fixing a Broken Frame
Cliopatria – History News Network
Chris Bray

News reports frame the federal subpoena for confidential interview materials at Boston College as a threat to oral history scholarship. This is how the framing began; nearly two months later, this is how it continues.

But this framing misses the point. The Department of Justice did not say, in its friday court filing, that academic freedom is a meaningless claim of privilege in cases involving oral history research. What they said is that academic freedom is a meaningless claim of privilege, full stop. They did not say that the courts have no role in evaluating foreign requests made under the terms of mutual legal assistance treaties for oral history materials; they said that the courts have no role in evaluating foreign requests made under the terms of mutual legal assistance treaties.

Confidential oral history materials are at risk. So are embargoed correspondence, memoirs, journals, and other personal papers given to archives. So are the research notes of academics who study war crimes and dissident political movements overseas. Why on earth not? What does anyone see in the government’s claims, here, that draws a clearly bounded target around oral history alone?

The federal government has shoved open a door to archives and research material, period.

And the potential damage keeps going. On both sides of the Irish border, an independent commission is searching for the bodies of the Disappeared, relying on information from confidential informants to find the bodies of people killed and buried by paramilitaries during the Troubles. The lead investigator for that commission is now warning that the Boston College subpoenas are a threat to the commission’s sources, as former paramilitary members worry that promises of confidentiality are made to be broken.

The threat is not simply to oral history. It goes on and on.

Boston College (Cont.): AUSA Todd Braunstein, the Infamous Irish Politician

Boston College (Cont.): AUSA Todd Braunstein, the Infamous Irish Politician
Cliopatria – History News Network
Chris Bray

One new fact, twice the clarity.

In two previous posts, I argued that the federal subpoena for confidential oral history materials held at Boston College was probably not what it seemed. Pursuing the records of historical interviews with former members of the Provisional IRA following a request from the British government, the Department of Justice claims to be aiding a murder investigation; the more likely reality is that they’re helping to frame a purely political case against Sinn Fein after its recent successes during the February election in the Republic of Ireland. I won’t rehash that claim here, but you can follow the two links above for background.

So then, on Friday, the DOJ filed its response to BC’s motion to quash the subpoena. I discussed that response here, if you missed it.

But here’s one more exceptionally interesting thing about that response, which you can read here. It’s on pg. 2, at the start of the section titled, “Procedural History” (emphasis added): “On March 30, 2011, the United States submitted an application to the Court pursuant to the Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland…”

Before the DOJ filed this response, all that was known publicly was that BC got a subpoena in early May; the first news stories appeared around the middle of that month. But now it’s clear that the DOJ first walked into court with their request a little over a month earlier. Subtract a week or two for the DOJ to process the request and prepare its filing. Subtract a week or two for the British government to decide on, prepare, and transmit the request.

The general election in the Republic of Ireland that brought Gerry Adams into the Dail took place on February 25, 2011.

The murder of Jean McComville went without investigation for nearly forty years.That fact is undisputed. But then, at the very moment that Gerry Adams was elected to a parliamentary seat that he was willing to take — in an election that brought Sinn Fein back from the dead in the Republic of Ireland — it became suddenly urgent to get to the bottom of the McConville murder. And the way to do that was to subpoena only the interviews of the very two people who are publicly known to have said that Adams approved the killing.

The British government is engaged in politics, not a murder investigation. No one is going to be convicted on murder charges as a result of the DOJ’s subpoena. Everyone involved knows that. The point is politics. And the DOJ is playing along.

Assistant U.S. Attorney Todd Braunstein, you got a request for a subpoena of material that would damn Gerry Adams, and you got it immediately afteran election that saw a significant new political development for Adams and Sinn Fein — and you couldn’t figure out what you were being asked to do?

Or he knew exactly what he was being asked to do, and he cheerfully did it anyway. Which would be worse?

It’s a shameful abuse of power in either case.

DOJ on Boston College: Academic Freedom a Legally Meaningless “Quasi-Privilege”

DOJ on Boston College: Academic Freedom a Legally Meaningless “Quasi-Privilege”
Cliopatria – History News Network
Chris Bray

On Friday, the Department of Justice filed its response to the motion by Boston College to quash a federal subpoena for confidential oral history materials related to Northern Irish paramilitary violence. The government’s response is unmistakably aggressive in tone and in scope. Read the briefhere. The most remarkable claims, with emphasis added:

  1. In its Mutual Legal Assistance Treaty with the United Kingdom, the federal government has traded away the role of the courts, leaving discretion only in the hands of the executive branch: “Notably, the US-UK MLAT reserves the authority [to] decline a MLAT request, or to limit its scope, to the Attorney General, not the courts” (pg. 8). Under the terms of the treaty, an assistant U.S. attorney is acting as a “commissioner” to make a determination regarding the validity of the request and to act upon it (pg. 3). Federal law “does not vest the U.S. courts with discretion to evaluate MLAT requests where none exists under the applicable treaty” (pg. 9). Federal case law reflects “the narrow scope of the Court’s discretion in this case,” concluding “that district courts should not evaluate MLAT subpoenas under the standards applicable to domestic subpoenas” (11-12). Furthermore, the courts may not evaluate the political implications of information sought by a foreign government under the terms of an MLAT. “This is precisely the type of assessment left to the Central Authority of the United States, here the Attorney General, and the Central Authority in the UK” (pg. 19, and  pg. 2). In short, the federal government has granted the British government a mechanism to obtain what are effectively writs of assistance, subject to mandatory execution and beyond review or protest. This is an ironic historical development.
  2. Academic freedom is a legally meaningless “quasi-privilege,” and BC’s attempt to apply protected status to academic research makes “no claim of a cognizable federal privilege” (pp. 10-13, with quotes from the beginning and end). Academic researchers have fewer protections against compulsory disclosure than journalists, since “the courts have long recognized the unique role which news reporters play in our constitutional system.” In contrast, “[t]he limited protections afforded news reporters in the context of a grand jury subpoena should be greater than those to be afforded academics engaged in the collection of oral history” (pg. 14). Journalism is a protected activity; academic research is not.
  3. While the courts have no discretion in considering subpoenas issued pursuant to MLATs, the executive branch doesn’t have much, either: “In this case, the US-UK MLAT requires that, ‘the Requested Partyshall take whatever steps it deems necessary to give effect to requests received from the Requesting Party’…Under the US-UK MLAT, the United States is obligated to obtain the documentary evidence requested in this instance and provide it to the authorities in the UK” (pp. 6-7; emphasis in original).

So when foreign governments that have entered into MLATs with the United States wish to demand access to confidential academic research materials, the executive branch is compelled by treaty obligations to say yes, the courts have no discretion to say no, and “academic freedom” is a meaningless claim.

Clear enough?

Misfeasance, Rounding the Corner Toward Malfeasance

Misfeasance, Rounding the Corner Toward Malfeasance
Cliopatria – History News Network
Chris Bray

Here’s the process by which the federal government can cart away your research materials on behalf of a foreign government without any explanation. Especially interesting: the “without any explanation” part is a treaty obligation, not a product of petty bureaucratic intransigence. The secrecy is built in. But it’s extremely doubtful that anyone meant for that treaty obligation to be used to target academic research, or that the treaty is being applied in the intended manner against Boston College. The British government, and the Department of Justice, appear to be abusing a criminal investigations treaty for what are probably political purposes.

In January of 1994, the United States and Great Britain agreed to a Mutual Legal Assistance Treaty (MLAT), one in a wave of similar treaties signed in the 1990s; it took effect in 1996. The treaties gave countries a way to replace letters rogatory, a cumbersome form of judicial communication that operated through diplomatic exchange before they reached cops and courts. You can find the U.S.-U.K. MLAT on pg. 288 of the State Department’s list of Treaties in Force, if you’re into that kind of thing.

A manual on tax prosecutions at the Justice Department website includes a chapter that gives a general description of MLATs. Here’s the briefbackground section; here’s the section that describes the “Central Authority” for receipt of MLAT requests, which in the U.S. is the DOJ Criminal Division’s Office of International Affairs; and keep scrolling down from that last link for a description of the purpose, scope, and implementation of mutual legal assistance agreements.

But the most interesting section is the one that describes the contents of a request. A country requesting mutual legal assistance from another country must describe the office or agency requesting the information, the crime being investigated, the person or people under investigation, and the intended purpose of the investigation, as well as describing the information being sought.

In other words, if the DOJ is seeking a subpoena for confidential oral history records on behalf of the British government, they know exactly who in the British government is seeking those records, and they must necessarily know the crime being investigated. In this instance, that means the DOJ probably has clear evidence in hand showing that the PSNI is “investigating” a murder that they ignored for forty years, and that they’ve admitted they almost certainly can’t bring to court. If the British government is requesting documents that relate to the murder of Jean McConville, then the DOJ knows that, and they have to know that an investigation into the murder of Jean McConville is now a political effort rather than a criminal effort.

Unknowingly going forward on those premises is misfeasance. Knowingly going forward on those premises is malfeasance.

Now take a look at this 1996 report on the U.S. – U.K. MLAT from the Senate Committee on Foreign Relations. First, see Section 3 (b) (2), which describes limitations on the treaty requirement for assistance with criminal investigations: “The UK MLAT states that a Requested State may refuse assistance if the Requested Party believes that complying with the request would impair its sovereignty, security, or other essential interest, or would be contrary to important public policy…Assistance may be denied if a request relates to a political offense…”

Of course, a murder is not a political offense. But if it’s apparent that a long-ignored decades-old murder is being investigated with the intent of publicly tying it to a politician, rather than making arrests and securing convictions, then the offense has been politicized; the investigation itself is a political investigation, not a criminal investigation.

There is also some good evidence, by the way, that the British government is quietly assisting with a civil lawsuit initiated by a private party, which is exactly what an MLAT is not supposed to do.

Then scroll down a bit more, to Section 3 (b) (4), “Execution of Requests,” which establishes secrecy as the procedural norm: “At the request of a Requesting State, a Requested State is to use its best efforts to keep a request and its contents confidential. If a request cannot be executed without breaching confidentiality, the Requested State shall so inform the Requesting State, and the Requesting State then is given the option to proceed nonetheless.”

So as the United States government aggresses against the academic freedom of inquiry, targeting confidential research of great historical significance, and doing so in a way that significantly threatens future research, they’ve promised to do everything they can to hide why they’re doing it.

Of course, as I’ve explained previously, the “why” is pretty transparent in this instance. But that transparency comes from our ability to find evidence, not from their ability to explain.

Boston College is the target of a politicized investigation, undertaken by political means, that misuses a set of treaty obligations for improper purposes. They should fight in court — but they should also demand that their state’s congressional delegation make some pointed inquiries with the Department of Justice.