Freedom of information act

• Pages: 24-26

24 Volume 20, April–June 2014 international law update

© 2014 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

treaty for purposes of a foreign criminal proceeding

is unimpaired by an absence in the foreign judicial

system of safeguards in all respects equivalent to

those constitutionally enjoined upon American

trials.’ Holmes v. Laird, 459 F.2d 1211, 1219 (D.C.

Cir. 1972) … e rule of non-inquiry could not

stand otherwise … (‘Under the rule of non-inquiry,

courts refrain from ‘investigating the fairness of

a requesting country’s judicial system’ . . . .’ …).

Here too Hilton invokes the Gallina exception.

is argument plainly fails. … [F]or example, this

court found that extradition of a relator to Hong

Kong was consistent with its ‘sense of decency,’

reasoning that the relator was ‘wanted for. . .

activities whose criminality is fully recognized in

the United States. His extradition [was] sought by

. . . a colony of Great Britain, which . . . is one of

this country’s most trusted treaty partners.’ … For

similar reasons, we nd no occasion to apply the

Gallina exception here where extradition is sought

by a country within the United Kingdom.”

“As to Hilton’s second premise, the suggestion

that this court may sit in judgment of the Senate

in its performance of its advice and consent duties

is without basis. Hilton cites no case in support

of his ambitious conception of the judicial role.

is lack of support is unsurprising. For ‘[t]he

conduct of the foreign relations of our government

is committed by the Constitution to the executive

and legislative — ‘the political’ — departments of

the government, and the propriety of what may be

done in the exercise of this political power is not

subject to judicial inquiry or decision.’ Oetjen v.

Cent. Leather Co., 246 U.S. 297, 302 (1918) ….”

“Hilton concedes that the crime charged is

covered by the treaty. He does not contest that the

Senate consented to the treaty with the requisite

number of votes. See U.S. Const. art. II, § 2, cl. 2

(requiring that ‘two thirds of the Senators present

concur’). As to the adequacy of the Senate’s consent,

that is the end of the matter.” [Slip op. 7]

e Court therefore arms the District Court’s

denial of the writ of habeas corpus.

citation: Hilton v. Holder, No. 13-2444 (1st Cir.

June 12, 2014).

FREEDOM OF

INFORMATION ACT

Where an informal British caucus

requested U.S. government documents

pursuant to Freedom of Information

Act (FOIA), District of Columbia

Circuit finds that “representatives” of

foreign government entities who have

authority to file such requests would

fall under the Foreign Government

Entity Exception; as a matter of first

impression, explains the scope of

“representative” of a foreign government

in the context of a FOIA request

e following case concerns the request of an

informal caucus of the British Parliament for U.S.

intelligence records. e Freedom of Information

Act (FOIA) authorizes record requests from U.S.

federal agencies. U.S. intelligence agencies, however,

are prohibited from releasing records to foreign

government agencies or their representatives. See 5

U.S.C. Section 552(a)(3)(E).

Andrew Tyrie is a member of the British

Parliament and co-chair of the “All Party

Parliamentary Group on Extraordinary Rendition”

(APPG), an informal parliamentary caucus. APPG

sought information about the UK’s involvement

in so-called “extraordinary renditions” of persons

to U.S. government agencies. “Extraordinary

rendition” (or “irregular rendition”) is the

government-sponsored abduction and transfer of a

person from one country to another without due

process of law.

e U.S. intelligence agencies, including

the CIA, the Department of Defense, and the

Department of Homeland Security, denied APPG’s

requests because the requests were made by

“representatives” of the British government. APPG

sued to obtain the records.

e U.S. District Court for the District

of Columbia dismissed the lawsuit to compel