Tuesday, March 13, 2012

Howlers (Part Two)

or, But We Don't Want Our Power to be Limited

(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.


  1. Below, a comment from Ted Folkman, emailed to me because of a problem with the comment form. I'll reply this evening -- here's what he sent:

    Just a few comments on your second post, which I think kind of misses the mark from a legal perspective:

    There are two steps in the MLAT process. Step one: should the subpoena issue? Step two: if the subpoena issues, and if the target objects, should be subpoena be enforced? The Moloney & McIntyre arguments about the MLAT are all step 1 arguments. All the government is saying, I think, is that the court does not have the discretion to refuse to issue the subpoena that it would have if, say, a private person sought judicial assistance under 28 USC 1782. That seems right to me, and I've always said that the M&M arguments about the MLAT are weak. But that doesn't really go to the step 2 issue, which is whether the subpoena, once it issues, should be enforced. Step 2 is where all the First Amendment action is at.

    Also, I think you have referenced the Fourth Amendment more than once, and I am not really sure why. The gist of the Fourth Amendment is privacy and freedom from governmental intrusion. But the actual nuts and bolts of Fourth Amendment is protection against warrantless searches and seizures. I am not sure what that has to do with this case. I think it's settled that there is no Fourth Amendment protection against responding to a grand jury subpoena, so I don't see why the result should be different here.

    This last point, by the way, goes to your larger contention that M&M are being treated worse than they would be if this were a purely domestic criminal case. I don't see how that is so. A grand jury could issue subpoenas without having to go through the MLAT rigmarole, and M&M would have more or less the same arguments against enforcement of the subpoenas as they have now (as far as I can tell).

  2. A follow-up comment from Ted Folkman:

    I think I may have overstated the non-applicability of the Fourth Amendment to grand jury subpoenas. “The Supreme Court has suggested that, at most, the constitutional standard guards against indefinite descriptions of the documents to be produced. To determine what makes a description indefinite, however, the Court turned to FRCrP 17, which states that ‘the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.’” See 24 Harv. J. L. & Tech. 543, 546 (2011). In English, this means, I think, that while courts typically look to the Rules of Criminal Procedure to determine when a grand jury subpoena can be quashed, the Fourth Amendment is not wholly irrelevant. This mistake in my first comment highlights the dangers of non-experts (like me, in the grand jury context) opining on the law!

  3. It should be abundantly clear to every reader that I'm not a lawyer, and don't approach these questions as a lawyer. What interests me is the historical context and the political implications of the Fourth Amendment: Why do we have this thing? Where did it come from?

    And I think we have the Fourth Amendment because of the still fairly recent experience of Americans, at the time the Bill of Rights was adopted, with general warrants and writs of assistance in the service of British colonial taxation. Americans meant to impose boundaries on the power of government to obtain information. They meant to slow down governmental inquiries and force government to explain and justify intrusions on privacy. They did not believe that it was simply appropriate for government to always, instantly, easily get its hands on (for example) private records.

    In the case of the BC subpoenas, the government is still carrying on about a point that they lost before Judge Young, the question of the authority of a court to review subpoenas issued under the terms of an MLAT. Though they aren't actually appealing that decision -- because they still got the outcome they wanted -- they continue to insist that when the DOJ determines that it will obtain X set of records for a foreign government that has made a request under an MLAT, that's it -- no more discussion, no role for the courts, hand it over. The courts don't buy that argument at all, but the DOJ won't stop muttering about it. Their expectation is that, in cases originating in MLAT requests, they should face no boundaries, and they should always be able to grab whatever they wish to grab, no questions asked.

    So I approach these questions as someone with a research interest in 18th century American politics, not 21st century law. My starting point is where we came from, not just where we are. You wouldn't want me to represent you in court, but I don't mean to narrowly examine the law; rather, I mean to examine the political and historical context around the application of the law.

    In that context, I think the question of where we are looks pretty appalling as a political matter. That doesn't mean that my interpretation of events would hold up in court, but I'm not trying to come up with an interpretation of events that would hold up in court.