tag:blogger.com,1999:blog-3011170952314270188.post2191992451353282708..comments2023-06-17T08:09:28.210-07:00Comments on The Shade of the Cloud of Arrows: And Starring Jack Dunn as Tweedle DeeChris Brayhttp://www.blogger.com/profile/08975227721072610316noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-3011170952314270188.post-13363757566947616232012-01-10T12:42:10.047-08:002012-01-10T12:42:10.047-08:00Hi Ted - the BCSN site is an information portal ra...Hi Ted - the BCSN site is an information portal rather than a discussion site, meant to keep people up to date on the latest court movements and media. I'd like to echo Chris though, it is always interesting reading your thoughtful commentary, both here and on your blog. Thanks for keeping an eye on the case.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3011170952314270188.post-81651925527042982842012-01-10T11:48:02.987-08:002012-01-10T11:48:02.987-08:00I didn't know the BC subpoena blog wasn't ...I didn't know the BC subpoena blog wasn't open for comment. I'll ask, and see what they say. Always glad to see your very thoughtful comments here.Chris Brayhttps://www.blogger.com/profile/08975227721072610316noreply@blogger.comtag:blogger.com,1999:blog-3011170952314270188.post-24913828544896371562012-01-10T11:45:30.680-08:002012-01-10T11:45:30.680-08:00By the way, you should encourage the folks at the ...By the way, you should encourage the folks at the BC Subpoena blog to open things up for comment!tfolkmanhttps://www.blogger.com/profile/07670123102969929374noreply@blogger.comtag:blogger.com,1999:blog-3011170952314270188.post-66640537351681094972012-01-10T11:16:07.741-08:002012-01-10T11:16:07.741-08:00I think we are on the same page about the law/poli...I think we are on the same page about the law/politics distinction. I will add only that the MLAT imposes an obligation on the United States under international law. So while, from the perspective of the court, the issue is one for the Attorney General's discretion, the Attorney General may have concluded that the United States was obligated to assist the UK authorities if he concluded that the treaty applied and that none of the permissible grounds for refusing cooperation applied.<br /><br />I understand your point about why the interviewees talked, but supposing that they admitted to serious crimes in their interviews (I don't know whether or not that's so), I think they were naive if they disregarded the legal risk they were taking.tfolkmanhttps://www.blogger.com/profile/07670123102969929374noreply@blogger.comtag:blogger.com,1999:blog-3011170952314270188.post-46931347857557833652012-01-10T09:13:37.624-08:002012-01-10T09:13:37.624-08:00Ted,
I do agree with you about the likelihood tha...Ted,<br /><br />I do agree with you about the likelihood that the government will prevail in court, but I also think that the very existence of the case reflects some spectacularly bad policy, and I think MLATs create some very bad law. The courts leave policy to the other branches; the fact that a court will let the executive branch do something doesn't mean that it's a good idea for the executive branch to do it. I think Moloney and McIntyre are correct in the substance of their claim that the DOJ failed to properly evaluate the political purposes of the British request for subpoenas, but I don't think the courts have a role in second-guessing bad policy decisions.<br /><br />(I just saw your comment at my other recent post, here -- I think we're drawing the same distinction.)<br /><br />About the interviewees, I think there's an important political context for their decision to participate. There was a long civil war in Northern Ireland, and then it ended; both sides agreed to a peace without recrimination. IRA members were released from prison, the army quit its security role on the streets of NI, police reform added Catholics to the (renamed) PSNI. They thought it was over, and that it was time to reconcile and go to the next chapter. Jean McConville was one of the "disappeared," and her murder first became known for certain because the Provisional IRA announced it, as part of an effort to close the period of armed struggle.<br /><br />By way of comparison, the United States government didn't prosecute the leaders of the Confederacy. The South lost; Robert E. Lee surrendered his army and became the president of a college. <br /><br />The interviewees talked because they thought the British and Irish republicans alike had agreed to close the chapter and attempt peace and reconciliation. It was a reasonable assumption in the context of its time, and it's very bad politics for the British government to shove its finger into this wound.Chris Brayhttps://www.blogger.com/profile/08975227721072610316noreply@blogger.comtag:blogger.com,1999:blog-3011170952314270188.post-20518678930229837902012-01-10T07:35:19.464-08:002012-01-10T07:35:19.464-08:00Chris, thanks for commenting on my post. One point...Chris, thanks for commenting on my post. One point I think should be included is the responsibility of the interviewees themselves. Assuming they did believe they had a promise of absolute confidentiality, their belief was not, in my view anyway, reasonable. So I think there is plenty of blame to go around.<br /><br />Also, I am surprised that you agree with me that the promise of confidentiality has no bearing on the enforceability of the government's subpoena. That's what the whole court case is about, isn't it?tfolkmanhttps://www.blogger.com/profile/07670123102969929374noreply@blogger.com