A reader was kind enough to point me in the direction of Mutual Legal Assistance in Criminal Matters Treaties of which there is one between the U.S. and Egypt.
Reading through the information, I find it a little disturbing that these only assist prosecutors and think that this probably raises all sorts of issues (at least in intra-U.S. law). However, I've got to get to court so I'll let ya'll sort them out.
The reason MLATs work for the government is that their primary purpose is to provide law enforcement with the ability to follow its leads overseas. After all, the U.S. can't just send a federal agent to knock on doors and do interviews in Egypt. The U.S. needs the Egyptian police to knock on the doors and find the criminals.
What's your objection? That there isn't a way to use MLATs for defense purposes (interviews, e.g.)?
I see no legal problems there. Even domestically, there's no obligation for the government to do the defense's legwork.
Remembering that this line of discussion is about the subpoena ability, the problem which first springs to mind is that this sets the basic rights as laid out in constitution on their ear. There is no constitutional guarantee that the government can call witnesses; on the other hand the 6th Amendment demands for defendants the right "to have compulsory process for obtaining witnesses in his favor." If the government has acted to put in place a process by which it has the right to compel witnesses, but excludes the Defense from that ability, that is a choice by the government to act in a manner excluding the Defense from a fundamental right after awarding the privilige to itself.
I've not researched the matter and suspect that somewhere out there a court or two has given the government cover for this. Still, it is something that we should be concerned about (if not constitutionally, at least as a matter of policy).
Ken: We probably run into this in Puerto Rico more often than you would, given that we get so many persons trafficking drugs from Colombia indicted here. Sometimes we need defense witnesses who are willing to testify but cannot get into the U.S., and we have the Court direct the government to assure that the person can get in. This means we have to disclose the witness' name, but it is much better than doing without.
Sorry I went into MLATs in general rather than the subpoena ability itself; of course that's what you were addressing.
I see no constitutional, legal or policy problems regardless.
MLATs don't compel anything. It's a request. That the government set up the request process to benefit the prosecution is no different from its setting up an FBI to find evidence or a computer system to track convicts.
I'm particularly UNtroubled because most of the cases with overseas witnesses or evidence are cases in which the defendant was acting from overseas against U.S. law or fled overseas after acting against the law in the U.S. In other words, the defendant is the one who brought about the international connection, usually as a way of minimizing consequences for himself. So I don't care if the MLAT process favors the prosecution. In fact, I favor its favoring the prosecution.
The problem is that our system is not supposed to be set up in a manner which favors the prosecution.
I'm not so certain that all, or many, of the people effected by this are the ones who are powerful enough to use multi-national connections and/or hide in another country. I see, over and over again, laws which were meant to snag the big fish landing a lot more little fish. Tom Lincoln would probably be in a better position to address who this sort of thing effects most often.
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