WASHINGTON — The State Department has hired an alarming number of law-enforcement agents with criminal or checkered backgrounds because of a flawed hiring process, a stunning memo obtained by The Post reveals.
The background problems are severe enough that many of the roughly 2,000 agents in State’s Bureau of Diplomatic Security can play only limited roles in agency efforts to police bad conduct and prosecute wrongdoers.
Fifty leading U.S. legal scholars cast fresh doubt on the constitutionality of the Anti-Counterfeiting Trade Agreement in an open letter to the Senate Finance Committee today. (Press Release). At issue is whether the Office of the United States Trade Representative (USTR) had authority to enter into the controversial IP enforcement agreement on behalf of the United States when the Deputy U.S. Trade Ambassador signed ACTA in October 2011. The law professors say no, and call on the Senators to “exercise your constitutional responsibility to ensure that the Anti-Counterfeiting Trade Agreement (ACTA) is submitted to the Senate for approval as an Article II treaty, or to the Congress as an ex-post Congressional-Executive Agreement.”
We, too, have wondered about the USTR’s authority to enter into this agreement. That’s why we made a request under the U.S. Freedom of Information Act to the State Department in February for key documents that set out the State Department’s analysis of the constitutional basis for ACTA – the “Circular 175” memorandum, and the accompanying Memorandum of Law.
As the State Department’s website states, the Circular 175 procedure is the way that the State Department “seeks to confirm that the making of treaties and other international agreements by the United States is carried out within constitutional and other legal limitations, with due consideration of the agreement’s foreign policy implications, and with appropriate involvement by the State Department.” Circular 175 memoranda must be accompanied by a Memorandum of Law prepared by the Office of the Legal Advisor in the State Department, which generally includes a discussion of the appropriate legal analysis underlying implementation of the treaty at issue.
The State Department is required to prepare these documents for all treaties and other international instruments that bind the United States as a matter of international law under 22 CFR Part 181. No agencies can conclude an international agreement in the name of the United States without first consulting with the State Department, and the determination of whether an agreement is an international agreement for this purpose must be made by the Office of the Legal Advisor to the State Department.
We have now received the State Department’s response. It’s short: the State Department has not created a Circular 175 memorandum and accompanying Memorandum of Law for ACTA
