Transcript: US Attorney’s Oral Argument
First Circuit Court of Appeals
Boston MA 4 April 2012
Oral Arguments
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In the matter of the subpoenas served on Boston College for material from The Belfast Project.
Assistant US Attorney Barbara Healy-Smith (BS) presents oral argument on behalf of the defendants in the appeal brought by Ed Moloney and Dr. Anthony McIntyre concerning the subpoena to Boston College for materials stored in archive there and known as The Belfast Project.
Legend: ED: Eamonn Dornan, counsel for Mr. Moloney and Dr. McIntyre, Judge Lynch: Chief Justice, the Honourable Sandra L. Lynch, Judge Torruella: the Honourable Juan Torruella and Judge Boudin: the Honourable Michael Boudin.
Barbara Healy-Smith (BS): Good Morning.
Judge Lynch: Good Morning.
BS: May it please the court, Barbara Healy-Smith for the defendants.
The issue here is much narrower than the appellants have presented it. And it’s important at the outset to just separate the two requests the appellants made on their Motion to Intervene in the District Court in the proceeding in which Boston College sought to quash the subpoena.
But the punitive intervenors said: we agree with Boston College as we have the same argument as Boston College has presented as to the chilling effect on Oral History projects and the confidentiality of sources but we want to broaden that proceeding.
In the complaint they attached to their Rule 24 Motion, they sought to bring claims against the Attorney General that would have had the District Court enquire into the process the Attorney General followed in deciding to provide the legal assistance requested.
To weigh whether the Attorney General consulted with people he was supposed to consult with or considered, gave weight to, certain policy and political considerations.
The District Court said the MLAT expressly precludes an action to ostensibly enforce its terms; there is no private right and so you cannot bring that complaint.
And as to any legally cognisable, legally protectable interest you might have, Boston College is adequately representing that.
The question is: was that an abuse of discretion under Rule 24? And we…
(Judge Lynch interrupts)
Judge Lynch: Ms Smith, it would help me if you would actually frame your argument not in terms of the intervention but in terms of the original action that these individuals brought because it does not necessarily follow from a non-intervention that they didn’t have a right to file their own action.
Now I understand your argument to be that the treaty itself precludes a cause of action; that then leaves the Constitutional claims.
The Constitutional claims are sounded under the first amendment and under the fifth amendment due process clause.
We have just heard from Mr. Dornan about the high personal stakes which his clients feel that they have – that they would be put at personal risk here. One of the arguments you make is that they have no standing.
Let’s just assume hypothetically, that that degree of risk and the chilling effect, if you will, arguably gives them standing.
What are your arguments under the first amendment here?
BS: Not as to the personal safety but as to the first amendment?
Judge Lynch: That’s right.
BS: Under Branzburg: there is not a recognised privilege that would protect someone from giving evidence absent a strong counter bearing interest; constitutional, common law or statutory privilege.
The first amendment privilege asserted here is an academic privilege of an Oral Historian doing research that is claimed to be akin to that of a reporter: I promise my source I’m not gonna reveal your name, I’m not gonna tell anybody where I got this information.
In fact, first of all, that was Boston College’s promise. They required that confidentiality be maintained….
Judge Lynch: Frankly, that seems to go to the standing issue as opposed to the merits of the first amendment claim. It may be primarily Boston College’s claim but they claim they also will be injured under both the the first and fifth amendment by this.
BS: I would submit Mr. Moloney’s lengthy affidavit has a scant mention of a chilling effect on Oral History projects and no one’s…
Judge Lynch: I’ve asked you to make some assumptions, arguendo, and then get to…please.
BS: So If I understand your question, what you…
Judge Lynch: And assume they have a sufficient interest in this action to raise the Constitutional claims, just hypothetically assume that.
What is your response as to why there are no Constitutional claims that can be plausibly stated here?
BS: Well, because there is not one that would override the purpose underlying the treaty between two sovereign nations.
There is, in just in the criminal context, there’s no right for a third party to come in and say: “I’m gonna block the giving of evidence that might implicate me”, unless it’s one’s personal fifth amendment privilege; but the first amendment doesn’t do that. It doesn’t provide that right for reporters and it doesn’t provide that right for academics. The…
Judge Boudin: My recollections of the cases, that are now rather old and I’ll go back and read them, is while the Supreme Court doesn’t seem to recognise in practice this first amendment right for reporters. It keeps saying things like “Well, it might depend on the circumstances.”
Do I mis-remember?
BS: To the extent that is the case, Judge Young gave weight to that.
That in fact, if the court gets there, Judge Young took into account all of the first amendment claims that were brought by BC which encompassed the same first amendment claims that Mr. Moloney and Mr. McIntyre were….
Judge Boudin: It’s just that I’d like an answer to Judge Lynch, that if we assume, somehow, they were in the case and they could raise these arguments themselves.
They got all the weight to which they’re substantively entitled and they lost: is that your position, in effect? And should have lost?
BS: Yes! If you get that far, yes.
Judge Boudin: It’s a little odd to be hearing about how well Boston College represents these interests when they’re not (scoffs) seeking to appeal the order to turn over the documents.
BS: Well….
Judge Boudin: And then you say, assuming they had serious first amendment interests, somehow those would disappear because the statute doesn’t, or the treaty doesn’t allow them to be raised.
If those interests really existed, you’d think there would be some way to have them protected regardless of what the treaty said, wouldn’t you?
BS: To have them taken into account?
Judge Boudin: If they’re taken into account and respected to the extent that whatever reservations the Supreme Court has made, quite unclear since it doesn’t exercise that authority in the existing cases, to refuse…to allow the piercing of alleged privilege. Whether or not that’s a correct resolution.
BS: But we found no precedent where a third party has the ability to insert into a proceeding in the course of a legitimate and serious, this is a murder investigation, but it might be terrorism, it might be genocide, and to say that could be protected merely by a criminal confessing to an academic in an Oral History project the world will never get that evidence and that…
Judge Lynch: Are you arguing then that this is a per say rule that it is “never” when it involves a criminal prosecution? There is never any possibility of an academic privilege? Your Brother (Ed. Note: MA term for opposing counsel. Here it refers to Eamonn Dornan) suggests this is a balancing of interest.
It’s not clear to me whether you are arguing that there is an automatic rule that the first amendment can never trump a criminal prosecution.
Or whether you are saying in most cases a criminal prosecution is a sufficiently legitimate government interest to override in any first amendment claim being made.
BS: We’re certainly saying that here there was nothing than could trump that. And also saying that in most cases it wouldn’t.
I can’t think of where it would, um….
Judge Torruella: Why isn’t the plain language of Rule 24 applicable here?
Where it says: “when the applicant claims an interest relating to property or transaction, which is the subject of the action and the applicant is so situated that the disposition of the action made, as a practical matter, would bear to impede on that applicant’s ability to protect that interest.”
The interest here being their safety.
BS: If we’re going back to the Motion to Intervene…
Judge Torruella: Isn’t that’s what’s before us here?
(Judges speak to each other)
Judge Lynch: Both.
Judge Torruella: Oh. Well anyway, that one is the one I’m interested in.
BS: The test is, that is one of the prongs for intervention under Rule 24, A 2; one of the three things to be demonstrated. We argued below they did not have such an interest because there’s not a recognised privilege to….
Judge Torruella: There’s not a privilege to safety?
BS: That would be under the fifth amendment. The….
Judge Torruella: Right.
BS: The issue there is Mr Moloney, who is here and a US citizen, asserted no risk to his personal safety. The personal safety of Mr. McIntyre….our constitution does not protect non-citizens outside of the country from unnamed third parties who might bring them harm as a result of testimony…
Judge Lynch: Actually, I took a look at the cases which the government brief cited and it seems to me almost all of them apply in the immigration context and have to do with plenary Congressional power over who enters the country.
This case is a little bit different.
I found no case that established the sort of Absolute Rule that your briefing suggested the case law established.
Judge Torruella: In fact, vis-a-vis, you seem to put it in some doubt.
BS: I think in most cases the concern is government action. There’s no assertion that our government or another government is going to torture people as….
Judge Torruella: No, but they’re claiming that the actions of our government are going to put them at risk.
BS: From?
Judge Torruella: And they’re claiming, and this is what I’d like to get to at some point, they’re claiming that that interest they have in their personal safety is not being properly protected by Boston College.
BS: The personal safety issue was certainly asserted by Boston College. The assertion is: that should the information be turned over that ultimately that will become known to unidentified persons who would then do harm.
The fact of The Belfast Project and Mr. McIntyre’s participation in that has been known for a while; there’s been news coverage and indeed a book published and various interviews, so that’s…
Judge Lynch: That’s an argument he’s already put himself in harm’s way.
And he argues, or his pleadings say: yes, but you haven’t seen anything yet. If this information becomes public the risk to me and my family becomes much greater.
It strikes me that the intervention question might be a bit of a sideshow if in fact it is clear, as a matter of law, that there is no first amendment interest sufficient to outweigh the government’s interest in complying with the treaty and in assisting a fellow sovereign under the treaty in a criminal prosecution, criminal investigation and prosecution.
So if I could get you to return to that point?
BS: I think there isn’t.
There is not a first amendment privilege that could be asserted by a third party who is not the holder of information to expose, impede, a proceeding to get evidence pursuant to a request for assistance…
Judge Lynch: That sounds like you think Boston College could assert such a claim but that these people cannot.
BS: That is correct.
Judge Lynch: And so the fact that Boston College has chosen to absent itself and not to appeal is dispositive of the arguments here?
BS: Well, I…
Judge Lynch: Let me go back. Just assume hypothetically, that Boston College was here. Wouldn’t you also be arguing that there is no first amendment claim?
BS: We would be arguing that the District Court appropriately declined to quash the subpoena. I mean, the District Court, as we argued in our brief, weighed more than the government, went farther than the government even thought it should under the MLAT. There’s a very narrow enquiry…
Judge Lynch: No. We’re not under the MLAT. We are under (scoffs) the federal Constitution.
BS: Well then the Branzburg principles: is this an exercise intended to harass someone? Is it a legitimate public enquiry, or excuse me, a legitimate investigation? Which would, taken into account here, would apply and we would be arguing that Boston College should not made a showing that would have outweighed that.
Judge Lynch: Okay.
BS: As we argued, we believed that the intervention issues were dispositive but should the court…look largely… because that was the point at which the appellants would have had the most rights in the proceeding which Boston College brought, that the United States had instituted essentially, to quash the subpoena. And that when the court determined they didn’t have the right under the MLAT to bring the claims against the Attorney General under the APA similarly, he appropriately decided that a separate, independent action, which was really a way of getting the court to reconsider a decision it had made earlier, was likewise sound. So that both the denial of intervention and the dismissal of the separate civil case were correct.
Judge Lynch: Thank you.
Eamonn Dornan (ED): There’s nothing further in rebuttal.
Judge, we’re in the hands of the court. Unless the court has any questions?
Judge Lynch: Oh! Counsel, bless you! (all laugh)
Thank you very much. It was a very useful argument and the court is in recess.
Boston College Subpoena News 