Senator Charles E. Schumer

Senator Charles E. Schumer

A hat-tip to Chris Bray, for bringing to light Senator Charles E. Schumer’s letter to the Attorney General and the Secretary of State expressing concern about the government’s subpoenas in the Belfast Project case. Here are two key excerpts from the letter:

During the ratification of this treaty we in the United States Senate made clear that provisions of this treaty, and other (sic) 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.

Given the close relationship we have with the United Kingdom and our deep commitment to a lasting peace in Northern Ireland, I urge you to work with the British authorities to have this MLAT request withdrawn.

My main reaction to the letter is that letters like these from important US senators (Senator Kerry has also written a similar letter) are probably the best shot opponents of the subpoenas have at stopping them. I have long thought that if there is a winning strategy for them, it is a political strategy, not a legal strategy.

But let’s look more closely at the letter. The first excerpt I quoted motivated a post by Chris Bray, maybe the web’s leading advocate for Ed Moloney and Anthony McIntyre, asserting (in its title no less) that “the people who ratified the US-UK MLAT think the DOJ is wrong about what the treaty means.” The gist is that when ratifying the 2007 extradition treaty between the United States and the United Kingdom, the Senate resolved that it understood the treaty was “not intended to reopen issues addressed in the Belfast Agreement, or to impede any further efforts to resolve conflicts in Northern Ireland.” So, Senator Schumer and Chris suggest, the legislative history of the treaty shows that the subpoenas are impermissible (under the treaty—even if the treaty did not apply, the UK still could have proceeded via 28 U.S.C. § 1782).

Senator Schumer’s view, if fully spelled out, would probably be that the text of the 2007 resolution shows that a majority of senators had held a similar view a few years earlier when the Senate ratified the MLAT. Does that matter? Let’s assume that the American courts will more or less follow the methodology of the Vienna Convention on the Law of Treaties when interpreting a treaty. The basic rule (Article 31) is that “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms in their context and in the light of its object and purpose.” “Context” in this context :-) means (1) the text of the treaty with its preamble and annexes; (2) agreements between the parties at the treaty’s conclusion that relate to the treaty; and (3) unilateral declarations made by one party at the conclusion of a treaty if accepted by the other party. Subsequent agreements regarding the interpretation of the treaty, subsequent practice in applying the treaty, and relevant rules of international law should also be taken into account. If application of these rules does not give an unambiguous answer to the interpretive question, or if application of the Article 31 rules leads to a “manifestly absurd or unreasonable” result, then “recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion” (Art. 32). I assume that there are no relevant agreements between the US and the UK and that the UK has not accepted the Senate resolution. I also assume that there is no history of practice under the treaty that is relevant to the question at hand. With this background, I think the first question is, what does the treaty say?

Article 3(1) of the MLAT, which provides the permitted grounds for refusing a request for assistance, says:

The Central Authority of the Requested Party may refuse assistance if: (a) 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;(b) the request relates to an offender who, if proceeded against in the Requested Party for the offence for which assistance is requested, would be entitled to be discharged on the grounds of a previous acquittal or conviction; or (c) the request relates to an offence that is regarded by the Requested Party as: (i) an offence of a political character; or (ii) an offence under military law of the Requested Party which is not also an offence under the ordinary criminal law of the Requested Party.

So there seem to be two interpretative questions. First, should we say that because of the Senate’s view of the purpose of the treaty, we should treat the list in Article 3 as nonexclusive, and also require the United States to refuse to execute a request if the request would impede peace efforts in Northern Ireland or be contrary to the Belfast Agreement? Article 31 suggests the answer is no. Nothing in the text or context of the treaty supports the notion. Nor do I think there is a strong argument that the agreement is ambiguous such that it is permissible to look to supplemental materials to construe it. All of the grounds for refusal specified in Article 3 are permissive rather than mandatory. That is, nothing in Article 3 seems to require the Attorney General to refuse a UK request; Article 3 merely permits the Attorney General to refuse a request. It would, I think, take an extraordinarily strong argument, which to my knowledge has not yet been made, to show that the US and the UK intended that the United States would not be permitted to execute requests that addressed pre-1998 crimes that occurred as part of the Irish Troubles.

Second, maybe the Senate understood all pre-Belfast Accord IRA crimes to be “political offenses” and thus, maybe, the UK’s request relates to a political offense. Again, though, even though the Attorney General may refuse a request on those grounds, he need not do so.

This is why I think that Senator Schumer’s point is really political and not legal. I don’t see a strong argument to suggest that the MLAT forbids these subpoenas. This leads to the second excerpt of the Schumer letter that I quoted above. What exactly is Senator Schumer asking the US government to do? To consult with the British to see if they will agree to withdraw the subpoenas. Again, this is politics and not law. That’s not a criticism—it’s perfectly legitimate to lobby and I think this offers the subpoena’s foes their best chances of success.

Even if Senator Schumer’s assertions about the Senate’s intentions at the time of ratification mattered, another question is: are the subpoenas contrary to the Belfast Agreement? The multi-party agreement contains provisions regarding the release of “qualifying prisoners” after two years from the date of the agreement. But it contains no amnesty for crimes committed before the date of the agreement. I don’t think this is a controversial thing to say. The Boston College Subpoena blog, which is associated with Anthony McIntyre, reprinted an article from the Irish Times that, if I understand it right, suggests that the status quo today is that people can indeed be prosecuted today for pre-1998 crimes, though they will de facto be freed after serving two years of their sentences. So the subpoenas may or may not be bad for the peace process, or they may have bad or improper motives, but I do not see that they are actually contrary to the Belfast Agreements. I would welcome comment from others more knowledgeable on this point than I am.

Photo credit: Office of Sen. Charles E. Schumer