While we wait for the hearing in the U.S. Court of Appeals for the First Circuit, it seems clear that the field of battle is going to shift from the courts here in Boston to Washington. McIntyre and Moloney have been lobbying on the issue, and they have garnered some support from Senator John Kerry. How will McIntyre and Moloney approach this? Here are some thoughts.

First Possibility: Lobbying The Department of Justice?

I have previously suggested that the Attorney General had some discretion about whether to grant the UK’s request for judicial assistance. This is plainly right insofar as the UK cannot force the Attorney General to act on its behalf. But the MLAT imposes legal obligations on the United States that the Attorney General surely does not feel free to ignore. Under Article 3 of the treaty, the following are permissible grounds for refusing assistance to the UK:

• “the Requested Party is of the opinion that the request, if granted, would impair its sovereignty, security, or other essential interests or would be contrary to important public policy.”
• “the request relates to an offense that is regarded by the Requested Party as an offense of a political character.”

Before denying a request on these grounds, the Attorney General (or his designee) must consult with the Secretary of State for the Home Department (or her designee) “to consider whether assistance can be given subject to such conditions as it deems necessary.” We don’t know whether the Attorney General determined that such a consultation was necessary, or if so, what was the outcome.

There is at least a basis for arguing the “political offense” issue. As noted in comment 6 to the Restatement (Third) of the Foreign Relations Law of the United States § 476, some lower courts, considering requests for extradition, applied the political offense exception to violent crimes committed by members of the Provisional IRA, though according to the Restatement the only appellate cases on the issue have come out the other way. Moreover, in the 1980s the United States and the United Kingdom expressly entered into a supplemental extradition treaty that excludes crimes such as murder from the political offense exception, and so it may be that the two states would not consider murder a political offense no matter what the context. In any case, it seems unlikely to me that this argument would have much appeal for the Attorney General.

The public policy exception seems a better avenue for argument. Perhaps the United States has a public policy in favor of letting sleeping dogs lie after the Good Friday Accords. Perhaps not.

But either exception seems to me to face a serious problem, namely, that the US relies on the UK for judicial assistance in many cases. Judicial assistance is a matter of comity and reciprocity. And so I think it is unlikely that the US government will want to jeopardize judicial assistance with one of the United States’s closest allies. This is particularly so because the UK government has taken some criticism for its enforcement of its extradition treaty with the United States in particular cases. A second problem is that the Attorney General has already made the decision to grant assistance, so it’s not clear (to me, at least) if and how he could go back on his decision.

Second Possibility: Lobbying the Department of State

This leads to the second possibility. If it is unlikely that the Attorney General can be persuaded to refuse to cooperate with the UK, perhaps the UK can be persuaded to drop its request. This is the gist of the letter from Senator Kerry to the Secretary of State, which calls on her to ask the UK authorities to reconsider their course of action. It’s unclear whether the State Department intends to raise this issue with the UK government.

Third Possibility: Lobbying in London

There’s a third possibility, of course, which is to lobby the UK government directly. I believe that the UK’s request for judicial assistance had to have been approved by the Home Department. In other words, this is not an instance of some rogue agency in Northern Ireland making a request directly without approval from the government in London. So there is also a possibility of lobbying in London, if lobbying in Washington is not effective.