Boston College (Cont.): When the Radical Becomes Routine

In a previous post, I wrote that the brief filed by the Department of Justice in response to Boston College's motion to quash a subpoena for confidential oral history materials was "unmistakably aggressive in tone and in scope." Most remarkable was the DOJ's claim that treaty obligations to the British government, the source of the request for the subpoena, obligated the court to defer to the determinations of the executive branch: "Notably, the US-UK MLAT reserves the authority [to] decline a MLAT request, or to limit its scope, to the Attorney General, not the courts."

Somehow, a treaty with another country has given away the constitutional role of an entire branch of government, which is now simply obligated to wield a rubber stamp for the executive branch. Whatever the British government wants its intermediaries to search or seize -- in Boston! -- no court can hope to say no. (Personal to Todd Braunstein: that hammering sound at your front door is the ghost of James Otis, who would like a word with you. Don't let him in.)

The brief filed on Friday by BC's lawyer similarly suggests that the DOJ is inventing its own Alice in Wonderland construction of American government and the role of its branches. See for yourself -- start reading on pg. 3, at bullet point 2. But here's the critical part, from the next page:

"No treaty can require this Court to act merely as an obedient servant to carry out demands made by a foreign government ...This fundamental principle, rooted in the watershed decision of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), that established the independence of the Judiciary in the United States, belies the Government’s argument that this Court lacks authority to hear and determine the issues Boston College presents in its Motion to Quash."

And so a lawyer feels compelled to explicitly remind the federal judiciary about the existence of Marbury v. Madison. Hey, did you know that you're not actually subordinate to the executive branch? We now routinely debate questions that render obscure the long-settled premises of American government: can the executive branch negotiate away the independence of another branch of government? (If the military is bombing another country, does that count as war?) Enough hope: there has been no change. The radicalism of the executive branch heads on down the road, gas pedal stuck to the floor. If you know David Addington, buy him a drink -- he won.

Elsewhere, BC's lawyer argues that the DOJ has, let's be polite about this, substantially mischaracterized significant facts about the matter before the court. More about that tomorrow.