Monday, May 09, 2005

Volcker Commission Wins TRO Quashing U.S. Congressional Subpoenas

The United Nations Independent Inquiry Committee investigating the UN Oil for Food Scandal (better known as the Volcker Commission) won at temporary restraining order today from the U.S. District Court in D.C. quashing congressional subpoenas ordering one of Volcker's former investigators to turn over documents from his investigations. The TRO will apparently last 10 days allowing the Volcker Commission can make its legal case that the congressional subpoenas are not enforceable.

The law here is not nearly as clear as it might seem (although I haven't seen the papers filed). The Volcker Commission's position appears to be that the Convention on the Privileges and Immunities of the United Nations protects its staff, and even its former staff, from "legal process in respect of words spoken or written and all acts performed by them in their official capacity" under Section 18(a)'s grant of immunity for UN officials. Alternatively, the Volcker Commission might be deemed as "Experts" under Section 22's narrower protection for "papers and documents". (see here for the Volcker Commission's letters to Congress and to attorneys for its former staffer who has already turned over docs to Congress.) Having just looked at this briefly today, I think the problem for the Volcker attorneys is whether Volcker staffers are UN officials or experts within the meaning of the Convention. This would depend on whether the UN has designated the Volcker Commission as "officials" and whether that designation is proper. There doesn't seem to be much caselaw in the U.S. on this point.

My guess is that the UN wins here, but as a practical matter, the decisive factor would usually be the State Department's views on the proper interpretation of the treaty. It seems unlikely, however, that they will get involved in a fight between the UN and Congress. So it may be that we may witness a rather unusual spectacle of a legal battle between the UN's lawyers and Congress's lawyers without Executive intervention. This might tip the balance toward Congress. We'll see.

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