The People Who Ratified the US-UK MLAT Think the DOJ Is Wrong About What the Treaty Means

At the bottom of this post, a strong letter sent yesterday by Senator Charles Schumer to Secretary of State Hillary Clinton and Attorney General Eric "La La La I Can't Hear You" Holder regarding the Belfast Project subpoenas served on Boston College. Schumer makes his position plain, asking Clinton and Holder to "work with the British authorities to have this MLAT request withdrawn." Read the whole thing, but one paragraph in particular wages a direct assault on the arguments made in court by the U.S. Attorney's Office for the District of Massachusetts:

During the ratification of this treaty we in the United States Senate made clear that provisions of this treaty, and other[s] with the UK, should not be invoked pursuant to political goals related to Northern Ireland. In particular, the Senate resolution that accompanied the ratification of the extradition treaty in 2007 states that, "The Senate understand that the purpose of the treaty is to strengthen law enforcement cooperation between the United States and the [U]nited Kingdom by modernizing the extradition process for all serious offenses and that the treaty is not intended to reopen issues addressed in the Belfast Agreement, or to impede any further efforts to resolve conflicts in Northern Ireland.

Schumer has framed the question widely, addressing his concerns about the mutual legal assistance treaty between the US and the UK with a quote from the Senate resolution regarding a different treaty. But his argument is still specifically sound: A few years ago, the Senate ratified a treaty between these two nations regarding a matter of international cooperation in internal criminal justice matters. Doing so, they make explicit their intent to keep "issues addressed in the Belfast Agreement" -- like the past activities of paramilitaries that fought during the Troubles in Northern Ireland -- out of the bucket of things for which the treaty would assure police cooperation. So why would the same United States Senate ratify a different treaty, just a few years earlier, with an entirely different intent?

Bottom line: Treaties assuring criminal justice cooperation between the US and the UK were not created to assure cooperation in legal efforts to relitigate the political conflict in Northern Ireland. Here it is from a member of the Senate -- that is, from another one of the political officials who participated in the vote to accept this treaty on behalf of the United States government and give it legal weight. The PSNI, and the DOJ, are using a treaty to do something it wasn't supposed to do. Period. This claim can no longer be said, with anything approaching honesty, to be in dispute.

So let's revisit the amicus brief filed in the same appellate case by the ACLU of Massachusetts, and the government brief in the case filed last week with the First Circuit. Look at pg. 7 of the amicus brief: The ACLUM argues that a deferential approach to requests for mutual legal assistance, accompanied by the DOJ's "desired straightjacket on judicial review," threatens to turn US law enforcement into a political arm of foreign governments. See their list of examples for more, but the point is that reflexive and unchecked international legal cooperation opens the door to the policing of dissent: Sure, we'll hunt down that information on your dissidents.

This unexamined governmental willingness to serve the political agendas of foreign governments is precisely the topic at hand in the matter of the Boston College subpoenas: The UK made peace with the IRA, closing a long civil war, but is now quite transparently fishing for evidence it can use to damage longtime political enemies of the British state. A long-ignored 1972 murder is suddenly an urgent law enforcement matter, but, hey, there's nothing fishy about that sudden urgency, trust us, when can we have these documents?

The government responds to the ACLUM's argument by not responding, really, except to cough and make a carefully narrow set of legal claims. But here's the most plainly germane piece: In the government's brief, look at footnote 32, which begins on pg. 56 (of the brief, which is pg. 68 of the PDF file). The DOJ is sure that the "thrust of the legislative history" is that Congress never meant to "graft" a standard of "wide discretion (and resulting inefficiencies)" on MLAT requests. They just meant for you to shut up, your honor, and give us the stuff, no questions asked.

They're wrong, and Schumer's letter proves it. Here's the "thrust of legislative history" from a senior legislator. The DOJ is using a treaty to do something it was not meant to do. They are shamefully abusing the intent of an international agreement, and they should be stopped.
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