Boston College Archives Subpoena is tip of an iceberg

Some time ago, I wrote a brief post here about a troubling story here in Boston. Boston College archives contain oral histories of some of the people involved in the "troubles" in Northern Ireland, a few still alive. Suddenly, they have been subpoenaed, despite the individuals who were interviewed for the oral histories being promised complete confidentiality. It turns out that the U.S. Department of Justice is helping the British government serve the subpoenas. The Chronicle of Higher Education has an excellent article following up on that short article (my link was to the Boston Globe).

It turns out that the subpoena is under a Mutual Legal Assistance Treaty (MLAT), which began to be entered into about 30 years ago, according to the Chronicle. These treaties create mutual obligations between the agreeing nations to assist in "criminal" investigations and prosecutions. The U.S. entered its first MLAT in 1976, with Switzerland. Before the rise of MLATs, police or investigators had to move through courts and diplomatic channels with letters rogatory. Now they can simply go police to police. Sounds really good when you are talking about following terrorists or drug smugglers or such evil doers. The problem comes, according to Senate Executive Report 104-22, titled "Treaty with the Republic of Korea on Mutual Legal Assistance on Criminal Matters," dated 1996, from the Senate Foreign Relations Committee. The report notes that the problem with these MLATs is that the crimes that the other country requests the U.S. assist with investigating need not be criminal under U.S. standards. So under MLATs, can the United States be pulled into investigating foreign nationals for activities which are political crimes only under the terms of another nation's draconian laws, but which would be perfectly legal under our own laws? The Senate report says political crimes are an exception. But Chris Bray, writing for the Chronicle, does a masterful job of analyzing how this example is sliding past the definition police.

The MLATs vary in how broad the terms can be -- some are broad enough to include civil and administrative proceedings in addition to criminal proceedings, so that forfeiture proceedings could be covered in drug investigations, for instance. All of the treaties have exemptions to the types of actions, but these tend to be based on the national security interest, not interest of individuals, or ethical guidelines, so that saying that individuals might be killed because you opened the archives would not be a reason for an exemption. In the U.S., MLATs are executed through the criminal division of the Justice Department, which seems to be exactly who was serving the subpoena on Boston College. Kudos to Chris Bray at the Chronicle for doing great research on the problem!