Misfeasance, Rounding the Corner Toward Malfeasance

Here's the process by which the federal government can cart away your research materials on behalf of a foreign government without any explanation. Especially interesting: the "without any explanation" part is a treaty obligation, not a product of petty bureaucratic intransigence. The secrecy is built in. But it's extremely doubtful that anyone meant for that treaty obligation to be used to target academic research, or that the treaty is being applied in the intended manner against Boston College. The British government, and the Department of Justice, appear to be abusing a criminal investigations treaty for what are probably political purposes.

In January of 1994, the United States and Great Britain agreed to a Mutual Legal Assistance Treaty (MLAT), one in a wave of similar treaties signed in the 1990s; it took effect in 1996. The treaties gave countries a way to replace letters rogatory, a cumbersome form of judicial communication that operated through diplomatic exchange before they reached cops and courts. You can find the U.S.-U.K. MLAT on pg. 288 of the State Department's list of Treaties in Force, if you're into that kind of thing.

A manual on tax prosecutions at the Justice Department website includes a chapter that gives a general description of MLATs. Here's the brief background section; here's the section that describes the "Central Authority" for receipt of MLAT requests, which in the U.S. is the DOJ Criminal Division's Office of International Affairs; and keep scrolling down from that last link for a description of the purpose, scope, and implementation of mutual legal assistance agreements.

But the most interesting section is the one that describes the contents of a request. A country requesting mutual legal assistance from another country must describe the office or agency requesting the information, the crime being investigated, the person or people under investigation, and the intended purpose of the investigation, as well as describing the information being sought.

In other words, if the DOJ is seeking a subpoena for confidential oral history records on behalf of the British government, they know exactly who in the British government is seeking those records, and they must necessarily know the crime being investigated. In this instance, that means the DOJ probably has clear evidence in hand showing that the PSNI is "investigating" a murder that they ignored for forty years, and that they've admitted they almost certainly can't bring to court. If the British government is requesting documents that relate to the murder of Jean McConville, then the DOJ knows that, and they have to know that an investigation into the murder of Jean McConville is now a political effort rather than a criminal effort.

Unknowingly going forward on those premises is misfeasance. Knowingly going forward on those premises is malfeasance.

Now take a look at this 1996 report on the U.S. - U.K. MLAT from the Senate Committee on Foreign Relations. First, see Section 3 (b) (2), which describes limitations on the treaty requirement for assistance with criminal investigations: "The UK MLAT states that a Requested State may refuse assistance if the Requested Party believes that complying with the request would impair its sovereignty, security, or other essential interest, or would be contrary to important public policy...Assistance may be denied if a request relates to a political offense..."

Of course, a murder is not a political offense. But if it's apparent that a long-ignored decades-old murder is being investigated with the intent of publicly tying it to a politician, rather than making arrests and securing convictions, then the offense has been politicized; the investigation itself is a political investigation, not a criminal investigation.

There is also some good evidence, by the way, that the British government is quietly assisting with a civil lawsuit initiated by a private party, which is exactly what an MLAT is not supposed to do.

Then scroll down a bit more, to Section 3 (b) (4), "Execution of Requests," which establishes secrecy as the procedural norm: "At the request of a Requesting State, a Requested State is to use its best efforts to keep a request and its contents confidential. If a request cannot be executed without breaching confidentiality, the Requested State shall so inform the Requesting State, and the Requesting State then is given the option to proceed nonetheless."

So as the United States government aggresses against the academic freedom of inquiry, targeting confidential research of great historical significance, and doing so in a way that significantly threatens future research, they've promised to do everything they can to hide why they're doing it.

Of course, as I've explained previously, the "why" is pretty transparent in this instance. But that transparency comes from our ability to find evidence, not from their ability to explain.

Boston College is the target of a politicized investigation, undertaken by political means, that misuses a set of treaty obligations for improper purposes. They should fight in court -- but they should also demand that their state's congressional delegation make some pointed inquiries with the Department of Justice.