Sunday, January 8, 2012

The Unalloyed Right of Government Officials to Breathtaking Stupidity and Obvious Negligence

The subpoenas of Belfast Project material held at Boston College have now produced a fight on several fronts: the original case, the appeal, the new and still-developing demands by interviewees for the return of their material.

And here's one more. Two of the three researchers responsible for the project, having been rejected by the district court in their effort to intervene in the case between the DOJ and Boston College, are now suing Attorney General Eric Holder directly. Ed Moloney and Anthony McIntyre allege that the DOJ failed to perform its several obligations to evaluate the British requests for subpoenas and determine if it was good policy to act on them, rather than just going along with the whole mess like a machine that switches on when you press the button. Below is the DOJ's motion, filed on Friday, to dismiss the lawsuit.
Doj Motion to Dismiss Holder Suit

I think the DOJ is likely to prevail on this one, for the same reasons that the DOJ has prevailed all along. The courts defer to the executive branch on foreign policy matters, judges believe or pretend to believe prosecutors when they say that oh no, your honor, this is very serious business, we aren't engaged in political theater at all, and mutual legal assistance treaties are a grab bag of awful rules that privilege ease of government process above individual rights. In other words, status quo American domestic politics.

Look at page 8 of the DOJ's brief: "The plaintiffs’ APA claims are premised on the contention that the treaty gives rise to an enforceable right to preclude the execution of a request for assistance if the treaty’s obligations are not fulfilled. This contention is precisely what Article 1, § 3 precludes."

So there's a treaty, and the treaty establishes a set of obligations behind the decision to execute a request, but if the obligations aren't performed, they aren't enforceable, because the very document that creates the obligation explicitly precludes action to enforce the obligation.

We're absolutely required to do X, unless we don't do X, in which case no one can make us do X. We are not required to do the things that we are required to do.

And you thought "Yes, Minister" was satire.

1 comment:

  1. The DOJ is likely to prevail because, in my opinion, the two parties challenging its actions--Mr. McIntyre and Mr. Maloney--lack standing, and the mutual legal assistance treaty between the US and the UK makes it clear that there is no private cause of action to challenge the Attorney General's decisions under the treaty. McIntyre and Maloney may or may not have good political arguments, but they are political arguments, not legal arguments.