Who’s Quashing Who?: The Battle Between Scholars and Subpoenas

Who’s Quashing Who?: The Battle Between Scholars and Subpoenas
Julie RosingFN1
Kentucky Law Journal
University of Kentucky College of Law
June 2014

Download PDF Version

Introduction

Last year the First Circuit’s decision in United States v. Moloney, requiring two scholars from Boston College to forcibly disclose their confidential research, shocked the academic world.FN2 This high-profile subpoena case brought the idea of a “scholar’s privilege” to the forefront of the legal arena once again. The outcome of the case—the forcible disclosure and the denial of the scholar’s motion to quash – was not, by itself, all that surprising.FN3 But the vague, general lack of analysis on which the First Circuit denied the assertion of a “scholar’s privilege” was indeed both shocking and inappropriate.

There are two questions that must be answered to clear up ambiguities in this hybrid problem of evidentiary and constitutional law. The first is whether a scholar’s privilege does or should exist. The second is if the scholar’s privilege does exist, how can the courts uniformly apply the privilege?

This note advocates that the scholar’s privilege should exist as a qualified privilege. This note further advocates that the circuits should reject their current arbitrary use of the privilege and instead apply a balancing test that accounts for the interests of both the academics attempts to protect their research and the party seeking disclosure. Although the Supreme Court of the United States denied certiorari to United States v. Moloney, the issue of the scholar’s privilege will not fall by the wayside. The time has come for a definitive, specific ruling on the issue. We must find a better way for scholars and subpoenas to co-exist.FN4

I. The Existence and Evolution of the Scholar’s Privilege

The scholar’s privilege stems from the long-standing and hotly debated concept of a “reporter’s privilege.” The Supreme Court struck down this privilege in Branzburg v. Hayes.FN5[5] In 1972, Branzburg held that there is no absolute reporter’s privilege available under the First Amendment for reporters to refuse to answer questions or be subpoenaed in a grand jury proceeding. Circuit courts have split for years over the correct interpretation of Branzburg.FN6

Some circuits, such as the Sixth circuit, apply Branzburg’s holding rigidly, allowing absolutely no reporter’s privilege in any circumstance. In other circuits, like the Third Circuit, Branzburg does not control. The First Circuit has restricted the Supreme Court’s decision to its facts, implying that “[i]t seems a moot point now to argue that there is no reporter’s privilege in the federal courts.”FN7 But, the First Circuit has also developed a vague balancing test to determine applicability of the privilege. Several other circuits have adopted their own variations of balancing tests—but no uniform standard has been propounded beyond Branzburg.

The circuit split is not surprising when considering that Branzburg’s holding did not command a majority. Even more notable is Justice Powell’s concurrence and the dissenting opinion, stating “express support for recognizing a qualified newsman’s privilege,” which further bolstered the privilege’s strength.FN8

From the uncertainty of the application of a reporter’s privilege sprang further uncertainty when scholars began challenging subpoenas in the research context. The scholar’s privilege has not been as frequently litigated as the reporter’s privilege until recently.FN9 These cases vary factually, and scholars have only succeeded in quashing subpoenas in a few, narrowly construed factual anomalies.

The dilemma of the scholar’s privilege spans two legal subjects: evidentiary law and constitutional law. Critics of recognizing reporters’ and scholars’ privileges take the evidentiary angle. These critics argue that because the privileges are not included in the Federal Rules of Evidence, the Supreme Court has rejected their existence and therefore, their application.FN10 Proponents fight for “the constitutional guarantees of free expression, privacy, and defendant’s rights,” which they believe justifies recognition of a testimonial privilege to protect the researcher-subject relationship.FN11

Further, although many parallels can be drawn between the reporter’s privilege that was denied in Branzburg and the idea of a scholar’s privilege, there is also at least one notable difference—reporters may have an additional route for protection via reporter shield laws.FN12 Markedly, no states have legislated to protect the researcher in a similar manner as reporter shield laws. Therefore the scholar’s privilege is essentially the only protection that scholars may have.

The First Circuit has been confronted with the scholar’s privilege on a number of occasions, most notably is the In re Cusumano v. Microsoft Corporation case. Cusumano held that interview information collected by two scholars for a book was privileged from discovery.FN13 Although a scholar’s privilege is admittedly created in this case, the holding remains narrow: “[i]t would be extravagant to read the case as establishing any broad ‘scholar’s privilege.’”FN14 Through this ruling, research is clearly proven to be a special endeavor, deserving protection by at least a qualified privilege.FN15 However, the First Amendment balancing test applied in this case leaves much ambiguity, leading critics to the conclusion that Cusumano may have been a fluke decision.

The traditional balancing test that the First Circuit has adopted requires a court to “place those factors that relate to the movant’s needs for the information on one pan of the scales and those that reflect the objector’s interest in confidentiality and the potential injury to free flow of information that disclosure portends on the opposite pan.”FN16 Essentially the need for disclosure of the information is balanced with confidentiality and First Amendment guarantees. The factors to be used on both sides of the balancing test are not explicitly identified, creating room for varying interpretations and inconsistent decisions.

II. The Moloney Decision

Most recently, the First Circuit was again confronted with the issue of the scholar’s privilege and the incomplete balancing test in United States v. Moloney, when two researchers from Boston College were subpoenaed and required to disclose confidential interviews regarding their work on the Belfast Project.FN17 The Project consisted of taping oral interviews from recollections of members of the Provisional Irish Republican Army, the Provisional Sinn Fein, the Ulster Volunteer Force, and other paramilitary and political organizations involved in the “Troubles” in Northern Ireland from 1969 on.

British authorities sought the interviews of Brendan Hughes and Dolours Price (former Irish Republican Army members) who were implicated in the 1971 abduction and execution of Jean McConville, a suspected British informant.FN18 The crux of the case lies in the fact that the Belfast Project scholars made explicit promises of confidentiality that the interview contents would be protected until the deaths of the interviewees. Since Hughes was dead at the time disclosure was requested, there were no problems with introducing his interview testimonial in court. The only issue was whether Price’s confidential testimonial could be disclosed because their confidentiality agreement had not ended at the time of the First Circuit decision. However, an interesting and surprising twist occurred while the case was wading in the uncertain cert-pool: Dolours Price was found dead in her home from an apparent drug overdose in January 2013. It is unclear as to whether this living vs. dead distinction affected the Supreme Court’s decision to deny certiorari in April.

The application of the balancing test in Moloney is radically different than the application and outcome in Cusumano. First, the precedent from Cusumano deals with claims of non-disclosure privilege in civil cases involving private parties. Moloney is more similar to the Branzburg case, in that the matters in both cases concern disclosure in criminal proceedings.FN19 The US Government was seeking the interviews in Moloney pursuant to the Mutual Legal Assistance Treaty (MLAT) with England. Governmental and public interest seem to automatically have a higher stake in criminal proceedings, and especially where foreign treaty obligations are at issue.FN20

What is striking, regardless of the Supreme Court’s denial, is that the majority opinion of Moloney almost completely disregards the interests of the researchers. The majority does not include an analysis of the researcher’s interests other than to mention that “the fear…that disclosure might threaten their job security or personal safety or that it will simply result in dishonor or embarrassment” is insufficient to create enough of a scholar’s interest to tip the balancing scales in their favor. A balancing test is not a balancing test if one side is ignored.

Justice Torruella appeared to be concerned with the majority opinion’s lack of consideration of the researcher’s First Amendment claims:

It is one thing to say that the high court has considered competing interests and determined that the information gatherers (here, academic researchers) may not refuse to turn over material they acquired upon a premise of confidentiality when these are requested via government subpoena in criminal proceedings. It is entirely another to eagerly fail to recognize that the First Amendment affords the Appellants “a measure of protection…in order not to undermine their ability to gather and disseminate information.”FN21

Torruella concurred in the judgment of the opinion only, on alternate reasoning.

Justice Torruella’s astute observations in the Moloney concurrence call for a uniform application of the balancing test in order to fully protect the First Amendment rights of scholars, researchers, and academics. His opinion requires that the balancing test must actually perform balancing for a legitimate verdict to be reached.

III. Proposal for an Adequate Balancing Test

The balancing test that I propose is undoubtedly complex because it aims at protecting the interests of a variety of parties including: the subject, the researcher, the sponsor, the facilitator, the prosecutor, the state, and society.FN22 The test advocated here combines elements from the First Circuit balancing test from the Torruella concurrence in Moloney, and from various other circuits and lower courts, to propound a uniform standard that ultimately aims at recognizing and evaluating the interests of the scholars. I believe that this test fills gaps where the First Circuit majority in Moloney failed.

A. The First Amendment Interest: Potential Harm to Free Flow of Information

1. Qualified Individuals

The first factor to consider is whether the individuals that are trying to prevent disclosure fall under the traditional protections of the First Amendment.FN23 Reporters and academic researchers alike fall into these protections because they perform a range of conduct relating to the gathering and dissemination of information.FN24 The fact that scholarly research “provides the public with historical and analytical perspective on issues of public concern in government” demonstrates its traditional information dissemination purpose.FN25 No traditional First Amendment protection equals no potential protection under the scholar’s privilege.

Determining that scholars and researchers should receive qualified protection under the balancing test is fairly straightforward analysis from the First Amendment. Determining who qualifies as a “researcher” or a “scholar” is a more difficult inquiry. Beyond researchers and scholars, archivists should also fall into the traditional First Amendment protections. “Archivists have a professional duty to curate many types of materials, some of which contain confidential information.”FN26 However, researchers, scholars, and archivists should all be classified by their functions rather than their titles.FN27

2. Confidentiality

The next factor to consider is whether or not the information, subject to disclosure, is classified as confidential. Information available to the general public or which can be accessed through other means of discovery may not be classified as confidential. Researchers should always be careful to get express, signed confidentiality agreements from their participants with explicit statements of protection. Even if a researcher has not made an express guarantee of confidentiality to their informants, a court may be able to deny a request for discovery of raw data if it finds very strong privacy interests are present.FN28

One disturbing aspect of the balancing test as it stands currently is that even express indications of confidentiality, like confidentiality agreements between researchers and participants, may not be indicative of privilege.FN29 For instance, even though the need for confidentiality was a central and prominent aspect of the Belfast Project in Moloney, including written agreements requiring that access to the interview records be restricted until their death or upon written approval,FN30 the court still rejected the application of privilege because the researchers knew that Boston College could make no guarantees of the ability to refuse disclosure on a court order. The court cited to a failure of Moloney’s donation agreements, but referenced Branzburg to reassert that even promises of confidentiality made in express confidence do not create a privilege.FN31 Therefore, confidential information is necessary for the privilege, but cannot alone establish the privilege under the current test.

This decision invalidating express confidentiality agreements is contrary to public policy. Because the court in Moloney already had possession of the tapes from reviewing them in camera, they were “making a sham of the scholar’s absolute assurances to their interview subjects that they would keep the tapes absolutely confidential until the death of each interviewee.”FN32 The notion that researchers can make promises of protection to their participants that can be struck down as unenforceable in court is disconcerting. “[I]f the government may subpoena confidential information subject to virtually no judicial scrutiny, the likely result will not be that the criminal justice system benefits, but that fewer people involved in potentially illegal conduct opt to speak to the press in the first place.”FN33

Under this balancing test, explicit confidentiality agreements must weigh in favor of applying the scholar’s privilege in all but the most extreme factual circumstances. In Moloney the confidential interviews were sought through the MLAT treaty to solve longstanding murder investigations, which might very well reach the extremity requirement.

Other factors relating to the confidentiality of the material must be taken into account as well.FN34 For instance, researchers may fear that they will “[run] the well dry” if their information is forcefully disclosed through subpoenas.FN35 Voluntary revelations and bargained-for communications between a researcher and study participants are vital to a researcher’s work. Consequently, “[w]ithout these sources . . ., many researchers, . . . would lose valuable sources of information.”FN36

Study participants revealing personal or embarrassing information will be appropriately shielded here under the balancing test. The study participants in the Proctor & Gamble case were kept confidential because the information was highly personal in nature including medical history and sexual activity. The nature of this personal information could inhibit future studies if revealed due to a fear by participants of inevitable disclosure.FN37

Furthermore, First Amendment interests should not be discounted because a third party holds the confidential materials.FN38 Third parties typically destroy confidential researcher-client communications in testimonial privileges and sever the effect of confidentiality agreements. In Moloney, Boston College was in possession of the confidential interviews. Boston College did not bother to challenge the first subpoena issued, and even when challenging the second subpoena, the lawyers began the challenge by submitting the materials to the judge to be examined in camera.FN39 Ultimately, researchers must take responsibility in forming explicit agreements with their participants and keeping their agreements and communications as their property. But, since difficulties may arise for researchers in keeping their research out of the hands of third parties (especially in the institutional context), the court should weigh the researcher’s efforts to retain sole possession over the information instead of the actual result. Efforts sufficiently signify that the researchers valued the confidentiality interests of their participants enough to make a stand for them, which should weigh in their favor.

In sum, confidentiality must be weighed by (1) whether a confidentiality agreement was reached between researchers and participants (2) whether personal privacy interests are present for participants (3) whether future research will be inhibited if there is disclosure and (4) efforts by the researchers to keep their research out of a third party’s hands.

3. The Extent of Protection Appropriate: Dangerous or Scandalous Information

If the information pending disclosure is found to be confidential—the next step is to determine the extent of protection that is appropriate for the confidential information. Determining the extent of protection likely must be satisfied through a case-by-case basis, through context evaluation of the confidentiality aspect. The highest demonstrations of confidentiality should be afforded the most protection and inadequate showings will not earn protection. Torruella’s view in Moloney found the interviews that the Belfast Project researchers conducted were confidential—due to the great lengths that the researchers went to prevent their unsanctioned disclosure.FN40 The Moloney case is a perfect example of information found to be confidential that was still not afforded the protection that the researchers wanted. There are a number of ways for the party seeking disclosure to deal with information that falls somewhere between highly confidential and inadequate including: limiting the subpoenas to only relevant claims, being willing to accept data with redacted confidential information, and helping to underwrite the costs of redaction and photocopying.FN41

Beyond confidentiality, the personal safety and potential dangers that disclosure will cause for the researchers must be weighed as well. Media in response to the disclosures in Moloney reported death threats against the Lead Researcher for the Belfast Project, Anthony McIntyre.FN42 Mr. McIntyre also stated in an affidavit that the home next door to his was smeared with excrement after the interviews were released. As mentioned earlier, the topics of many research projects are sensitive, highly personal, or controversial, and the safety of researchers and participants absolutely must be weighed with care. The issuance of the subpoenas in Moloney also “prompted broad news coverage and a minor international scandal.”FN43 Not only did the ACLU attempt to intervene, but Senator John Kerry and Secretary of State Hillary Clinton urged British authorities to revoke the subpoenas to encourage the peace process in Ireland. John Kerry has further argued alongside Moloney and McIntyre that “peace process stability considerations must take precedence over the tightly-written treaty obligations of the MLAT.”FN44 Subject matter that is more likely to create public condemnation should be afforded the most protection under the balancing test, while benign research on uncontroversial subjects will typically garner less protection.

On a similar note, public curiosity or newsworthiness in the content of confidential research should not be valued in the balancing test. The Dolours Price interview garners large public interest, but most of the interest is not based on the confidentiality issues or the police misusing academic researchers for law and order purposes. Instead, the public really wants to know the “gory details of what they imagine are in these interviews,” which is driving and influencing much of the reporting.FN45 Once again, an inflamed public, or heightened social interest should have no bearing on the balancing test in these cases. The focus must be turned from the sensational, provoking subject matter, to the true issue of the case—which is solely the rights of the academic researchers.

In sum, there are a myriad of factors that fall into the First Amendment interests including whether the individuals fall into traditional First Amendment protection, whether the information is confidential, and the extent of protection that the confidentiality requires. The key to evaluating each of these factors is thoroughness and reasonableness.

B. The Opposing Interest: The Need for the Information

1. The Nature of the Proceedings

The nature of the proceedings, evinced by case law, primarily rests on whether the action is a criminal matter or civil matter. Branzburg flatly rejected the use of a reporter’s privilege in grand jury proceedings.FN46 Other than that, Branzburg did little to specify whether this type of privilege could be used elsewhere. This is where the circuit-split rears its ugly head. Some circuits have held that Branzburg forecloses First Amendment protection in all criminal cases.FN47 However other circuits have claimed there is no reason to distinguish between civil and criminal cases in application of the privilege.FN48 The majority in Moloney disavows the precedent of the First Circuit that permitted success and application of a scholar’s privilege simply on the basis that these were civil cases where the government and public’s strong interest in investigation of crime was not an issue.FN49

Case law evidences that the government’s presence as a party in criminal litigation makes a radical difference in the balancing test, as opposed to results obtained in private litigation.FN50 It seems that the government can more easily prove their need for the information by emphasizing interests of national security and public safety when criminal overtones are present.FN51 Essentially, when the Government is a party to the litigation, if they follow their own guidelines and use careful practice, there should be fewer problems with getting their subpoenas granted. In the Moloney case, the government was the party seeking disclosure of the information. The Government’s interest was clear through the UK-MLAT treaty in which the federal government of the United States assumed an obligation to assist the United Kingdom in its prosecution of domestic criminal matters.FN52

The current balancing test requires that for the party pursuing disclosure in civil litigation to defeat the scholar’s privilege, the research must be more than remotely related to the lawsuit. The relationship between the information sought and the academic research must be more than tenuous.FN53 For example, in one Second Circuit case, a student was working in a restaurant to gather information for his dissertation when a suspicious fire and explosion occurred in the restaurant.FN54 His journal and notes were subpoenaed. Although his journal entries were clearly “scholarly work product,” the relationship between the fire and the student’s academic research were remote and could not be classified as expertise.

However, the question remains as to whether or not this binary distinction between civil and criminal cases is appropriate. The implication should be that civil cases will more likely be granted the privilege, but the type of case should not be a decisive factor. Criminal matters cannot be conceded to the government the way that they have been previously. Branzburg once again offers little guidance since the holding effectively only prevents a privilege in regard to grand jury proceedings. Therefore, the civil/criminal distinction should be considered when balancing the need for information, but should not preclude the government from being defeated if they are unable to prove that their need is legitimate.

2. Exhaustion of Alternative Sources

The second factor that must be addressed is whether the opposing party has exhausted alternative sources for accessing the information. Although this inquiry is not essential to defeating the privilege, it is still relevant in determining whether subpoenas seeking the confidential information are necessary.FN55 In Moloney, the information the government was seeking were interviews from one source who had passed away and one source that was still living. The government had no way of eliciting the information from the dead source, which makes their case even more compelling. However, the government could have contacted the living source, Dolours Price, to obtain the interview information. If Price were to refuse to surrender the information from her own memories and experiences, that would be her prerogative. This conundrum is similar to Cusumano, where the court permitted the scholar’s privilege, in which “Microsoft could have obtained that information directly from the sources revealed by the manuscript.”FN56

The one exception to living sources are cases where the alternative means of acquiring the information will create an undue delay or burden to the opposing party. In this case the factor should weigh in favor of the party seeking disclosure. At the time that the First Circuit opinion was issued, Dolours Price was an emotionally unstable woman. McIntyre speaks of Price as a sensitive woman who suffered mentally from the betrayal by those who shared culpability and by others who abdicated their responsibility.FN57 She would likely not have consented to an interview with the government in the way that she previously had with the Belfast Project researchers. In contrast, Price had built a relationship of trust with McIntyre; she attended his wedding and was the godmother of his son. These conditions on Price’s willingness to be interviewed may serve as an example of an undue burden to the opposing party seeking disclosure. But, once again, an unwillingness to perform other interviews should not constitute an undue burden unless all other alternatives to the information are inaccessible.

The civil/criminal distinction may also come to bear on whether the information is accessible by other means. Case outcomes indicate that information sought in criminal cases will be more difficult to access from alternative sources.

Conclusion

There is no doubt that the scholar’s privilege argument will rear its head again soon, likely without the complications of an international treaty and a murder investigation allowing the courts to cruise past confidential researcher interests. At some point, the Supreme Court must clarify for lower courts to what extent parties asserting their First Amendment interests in challenging government subpoenas of confidential information should – consistent with Branzburg – have a Constitutionally guaranteed right to present evidence before the court for review. If not, scholars and researchers will continue to have their motions to dismiss disclosure quashed, which in turn will cause scholars and researchers to have their work, their passion, and their interest in sustaining oral and written history quashed. The time has come to stop quashing and start protecting.

 


FN1. University of Kentucky College of Law, J.D. candidate for May 2014.

FN2. Nicholas J. Wagner, Split Over Reporter’s Privilege Highlights Tension Between National Security and the First Amendment, Circuit Splits (July, 12, 2012, 5:27 AM) http://www.circuitsplits.com/2012/07/in-2010-before-an-audience-of-college-students-justice-sotomayor-remarked-that-the-supreme-court-is-likely-to-have-to-rule.html.

FN3. See United States v. Moloney, 685 F.3d 1, 16-20 (1st Cir. 2012); Will Havemann, Privilege and the Belfast Project, 65 Stan. L. Rev. Online 79, 79 (2012) http://www.stanfordlawreview.org/sites/default/files/online/articles/Havemann_65_SLRO_79.pdf.

FN4. See Robert M. O’Neil, A Researcher’s Privilege: Does Any Hope Remain? 59 Law & Contemp. Probs. 35, 36-37 (1996).

FN5. See Branzburg v. Hayes 408 U.S. 665, 690, 702-703 (1972).

FN6. See Wagner, supra note 2.

FN7. Kristina Spinneweber, Branzburg, Who? The Existence of a Reporter’s Privilege in Federal Courts, 44 Duq. L. Rev. 317, 334 (2006).

FN8. David A. Kaplan & Brian M. Cogan, The Case Against Recognition of a General Academic Privilege, 60 U. Det. J. Urb. L. 205, 221 (1982-1983).

FN9. See Howard Gray Curtis, Academic Researchers and the First Amendment: Constitutional Protection for their Confidential Sources, 14 San Diego L. Rev. 876, 877 (1976-1977) (explaining that the traditional disagreements have centered on journalists rather than academic researchers).

FN10. See Kaplan & Cogan supra note 8, at 215.

FN11. Paul Nejelski & Lindsey Miller Lerman, A Researcher-Subject Testimonial Privilege: What to do Before the Subpoena Arrives, 1971 Wis. L. Rev. 1085, 1134.

FN12. See Branzburg, 408 U.S. 665 at 689.

FN13. Cusumano v. Microsoft Corp., 162 F.3d 708, 714 (1st Cir. 1998).

FN14. Judith G. Shelling, A Scholar’s Privilege: In Re Cusumano, 40 Jurimetrics J. 517, 524 (2000).

FN15. See Rebecca Emily Rapp, In Re Cusumano and the Undue Burden of Using the Journalist Privilege as a Model for Protecting Researchers from Discovery, 29 J.L. Educ. 265, 268 (2000).

FN16. See Shelling, supra note 14, at 517.

FN17. United States v. Moloney, 685 F.3d 1, 16-20 (1st Cir. 2012).

FN18. Havemann, supra note 3 at 82.

FN19. Branzburg v. Hayes, 408 U.S. 665, 667-671 (1972); Moloney, 685 F.3d at 6.

FN20. Moloney, 685 F.3d at 18.

FN21. United States v. Moloney, 685 F.3d 1, 20 (1st Cir. 2012) (Torruella, J., concurring in the judgment only) (quoting Cusumano v. Microsoft Corp., 162 F.3d at 714 (1st Cir. 1998)).

FN22. Nejkelski & Lerman, supra note 11, at 1093.

FN23. U.S. Const. amend. I.

FN24. United States v. Moloney, 685 F.3d 1, 20 (1st Cir. 2012) (Torruella, J., concurring in the judgment only) (citing Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)).

FN25. See Curtis, supra note 9, at 897.

FN26. Hannah Miller, Should a Legal Right to “Archival Privilege” be Established?, Due Process: Georgetown Law Library Blog, (February 26, 2013), http://www.law.georgetown.edu/library/blog/post.cfm/should-a-legal-right-to-archival-privilege-be-established.

FN27. Nejkelski & Lerman, supra note 11, at 1141.

FN28. See Eric M. Kraus & Arthur Palmieri, Investigating the Investigators: Balancing the Needs of Independent Researchers with Litigation Imperatives, Privacy & Data Security L. J. 659, 668 (2006).

FN29. United States v. Moloney, 685 F.3d 1, 4-6, 18-19 (1st Cir. 2012).

FN30. Petition for Writ of Certiorari, Moloney v. Holder, 2012 WL 5838450 at *7 (U.S.).

FN31. See Branzburg v. Hayes, 408 U.S. 665, 682 n. 21 (1972).

FN32. Harvey Silvergate, BC and the Belfast Project: A Scholar’s Privilege to Disobey, Forbes, (July 23, 2012, 11:48 AM), http://www.forbes.com/sites/harveysilverglate/2012/07/23/bc-and-the-belfast-project-a-scholars-privilege-to-disobey/.

FN33. Havemann, supra note 3.

FN34. O’Neil, supra note 4 at 36 (referring to the four concerns for protecting scholarly research).

FN35. Kraus & Palmieri, supra note 28 at 760.

FN36. Id. at 671.

FN37. See Farnsworth v. Proctor & Gamble Co., 758 F.2d 1545, 1546 (11th Cir. 1985)(preventing disclosure of questions regarding medical histories, sexual practices, contraceptive methods, pregnancy histories, menstrual activity, tampon usage, etc).

FN38. Brief for the Reporter’s Committee for Freedom of the Press as Amicus Curiae Supporting Petitioners at 3-5, Moloney v. Holder, No. 12-627, 2012 WL 6703006 (U.S.), at *4-*9.

FN39. See Silvergate, supra note 32.

FN40. United States v. Moloney, 685 F.3d 1, 20-21 (1st Cir. 2012) (Torruella, J., concurring in the judgment only).

FN41. See Kraus & Palmieri, supra note 28 at 674.

FN42. Katie Zezima, College Fights Subpoena of Interviews Tied to I.R.A., N.Y. Times, June 10, 2011, at A12.

FN43. Havemann, supra note 3 at 83.

FN44. Jim Dee, Death of Dolours could be a major game-changer, BelfastTelegraph.co.uk, Jan. 29, 2013, http://www.belfasttelegraph.co.uk/opinion/news-analysis/death-of-dolours-could-be-a-major-gamechanger-29041219.html.

FN45. Radio Free Eireann Interview with Anthony McInture and Ed Moloney: The Death of Dolours Price, Boston College Subpoena News (January 26, 2013), http://bostoncollegesubpoena.wordpress.com/2013/01/27/radio-free-eireann-interview-with-anthony-mcintyre-and-ed-moloney-the-death-of-dolours-price/.

FN46. Branzburg v. Hayes, 408 U.S. 665 at 707-08 (1972).

FN47. Petition for Writ of Certiorari, Moloney v. Holder, 2012 WL 5838450 (U.S.).

FN48. See Spinneweber, supra note 7 at 10-15.

FN49. United States v. Moloney, 685 F.3d 1, 18 (1st Cir. 2012) (distinguishing Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998)); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 595-99 (1st Cir. 1980).

FN50. United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983).

FN51. Reporter’s Privilege Legislation: An Additional Investigation of Issues and Implications: Hearing Before the Committee on the Judiciary United States Senate; 109th Cong. 6 (2005) (statement of Hon. Chuck Rosenberg, U.S. Attorney for the S. D. of Tex.) (stating that the Governmental interest includes enforcing federal criminal law, protecting national security, protecting vital secrets, and protecting public safety).

FN52. United States v. Moloney, 685 F.3d 1, 21 (1st Cir. 2012) (Torruella, J., concurring in the judgment only) (citing UK-MLAT Technical Analysis, S. Exec. Rep. No. 104-23, at 11).

FN53. Bert Black, Research and Its Revelation: When Should Courts Compel Disclosure?, 59 Law & Contemp. Probs 169 at 179 (1996).

FN54. Id. (referencing In re Grand Jury Subpoena Dated January 4, 1984, 750 F.2d 223 (2d Cir. 1984)).

FN55. Curtis, supra note 9, at 888-889.

FN56. Cusumano v. Microsoft Corp., 162 F. 3d 708 at 712 (1st Cir. 1998).

FN57. See Radio Free Eireann Interview with Anthony McInture and Ed Moloney: The Death of Dolours Price, Boston College Subpoena News (January 26, 2013), http://bostoncollegesubpoena.wordpress.com/2013/01/27/radio-free-eireann-interview-with-anthony-mcintyre-and-ed-moloney-the-death-of-dolours-price/

 

Carmen Ortiz In The Spotlight, Under Fire

Carmen Ortiz In The Spotlight, Under Fire
By Phillip Martin
WGBH News
7 May 2014

Click to Listen

As Massachusetts’ first female and first Hispanic U.S. Attorney, Carmen Ortiz was widely considered a potential rising star in Democratic Party politics. But over the past three years she has had her hands full with controversial cases that have left whatever political plans she may have had in a state of uncertainty.

There have been big-name prosecutions that she has lead — and is leading now — that under most circumstances would be the kind of feather in one’s cap that could propel an ambitious would-be politician to greater heights. For example, it was Ortiz’ss office that put notorious fugitive gangster Whitey Bulger away. And she’s leading the prosecution of suspected Boston Marathon bomber Dzhokhar Tsarnaev.

But questions have been raised about Ortiz’ss decision to cooperate with the British government to gain legal access to Boston College’s interviews with former Irish Republican Army members. Archival voices in that collection include that of IRA member Delours Price, who died in 2013. Two years before she passed, the U.S. Attorney subpoenaed BC for Price’s interviews, though that information — purportedly linking the IRA and its leaders to multiple murders — was supposed to be kept confidential until her death. Ortiz’s critics say that her relentless pursuit of information from Price while she was alive went too far. That same year — 2011 — Ortiz’s office pursued federal charges on behalf of MIT against a talented computer programmer named Aaron Swartz.

“I think that Carmen Ortiz — there’s an interesting thing — her pursuit of Aaron Swartz went along side of the Dolours Price archives,” said Carrie Twomey, the wife of Anthony McIntyre, the principal researcher at BC’s oral history project. Twomey told WGBH News that Ortiz’s decision to pursue separate federal actions against both Swartz and Price may have contributed to their tragic fates.

“Both Dolours Price and Aaron Swartz died within weeks of each other,” she said. “The stress of the case that was taken against them really took a toll on their mental health. And Carmen Ortiz’s office was aware, made aware in both cases, that the people she was pursuing, Dolours for the archive and Aaron Swartz for the MIT aspect, were vulnerable people.”

Speaking with WGBH Radio from her home in County Louth, Ireland, Twomey said that Boston College and MIT were faced with two fundamental questions: “Do they cooperate with the authorities and compromise their research or compromise their academic freedom? Or do they protect what they are supposed to be bulwarks for? So I think Eric Holder and Carmen Ortiz, they looked at this as purely criminal.”

It was two years ago that McIntyre and journalist Ed Moloney argued before the first federal court of appeals in Boston that the U.S. Attorney’s decision to issue subpoenas to force BC to divulge details from the oral history project would put their lives in danger. In court, Carmen Ortiz’ office pushed back, represented by Assistant U.S. Attorney Barbara Healy Smith.

“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” – Assistant U.S. Attorney Barbara Healy Smith, April 4, 2012

The court sided with Boston’s U.S. Attorney, but that wasn’t the end of the matter. Christina Sterling, a senior spokesperson for Ortiz’ office, responded to this story with a carefully worded statement:

“The Department of Justice received a request from the United Kingdom for legal assistance in an active criminal investigation involving allegations of murder, kidnapping and other serious crimes,” the statement read. “Consistent with our treaty obligations and our long-standing law enforcement relationship with the U.K., we responded. This matter was litigated all the way up to the United States Supreme Court and at each stage the court found our actions consistent with our treaty obligations and otherwise in compliance with U.S. law.”

But Moloney — the author of a major history of the IRA and on whose work the Oral History Project at BC is based — says that Ortiz and the DOJ should never have sought confidential files from BC in the first place, because, he argues, the details about IRA disappearances and the purported role of Gerry Adams came from a another source, despite claims to the contrary by a Sunday tabloid in Ireland.

“And in order to disguise the true origin, which was the Irish news tape, the reporter in the Sunday tabloid said that, or implied that, he had been given access to Delours Price interview from the Boston College Archives,” Moloney said. “That claim was repeated by Carmen Ortiz in her affidavit to the district court in Boston in the autumn of 2011 when court proceedings started. This claim by Carmen Ortiz was made without any attempt to exercise due diligence on the part of the Department of Justice.”

Boston College was issued subpoenas through Ortiz’ office on behalf of the Police Services of Northern Ireland. The basis for the subpoenas was what is known as a Mutual Legal Assistance Treaty, and with that, BC spokesman Jack Dunn says, Ortiz gave Boston College little choice but to comply.

“We fought that subpoena — two subpoenas actually — over the course of two years, and we did our best to try to defeat it,” Dunn said. “We don’t think it was appropriate for government to infringe on academic research and thus we embarked on a two-year campaign to oppose the subpoenas. I suppose she’s doing her job, but we do think that special privilege should be given to academic research, because if people feel they can’t tell their oral history stories out of fear out of government involvement, no one will ever tell these stories.”

“A chilling effect” is the phrase some have used to describe the fallout from the Boston College case. It’s the same phrase many of Swartz’s supporters have employed to describe the impact of Ortiz’s decision to prosecute the young hacker, who had used his computer skills to download a massive trove of academic articles from MIT’s computer network, JSTOR.

Federal prosecutors in response to the MIT breach filed charges that could have landed Swartz in prison for 35 years and $1 million in fines. He took his life in New York after the indictment came down. Now, the upcoming theatrical release of a new Sundance documentary about Swartz threatens to resurrect negative public opinion about the role of U.S. prosecutors in Boston. Swartz’s family specifically blamed MIT and Ortiz’s office for his death.

“If Aaron had been Goldman Sachs than it would have been handled in a much different way,” said Harvard Law professor Larry Lessig, Swartz’s friend and mentor. “I mean, one of the most striking things about the prosecution is to recognize the way in which the opportunity here to exploit this relatively young, not corporately connected individual becomes almost irresistible for the prosecutors. And every effort to try to check it and insert reasonableness and proportionality into the process gets resisted and instead results in more extreme efforts by the prosecutor.”

The Swartz case has become a cause célèbre across the Internet, where Ortiz has by contrast been widely portrayed as a villain. Ortiz has not spoken publicly about the Swartz case, nor the Boston University Oral History Project. Indeed, many U.S. Attorneys often cannot speak for themselves for fear of jeopardizing legal proceedings and sometimes torpedoing political ambitions. So Sterling read a statement to WGBH News on Ortiz’s behalf:

“So for starters, U.S. Attorney Carmen Ortiz has made it clear many times that she does not have political aspirations,” Sterling said. “She has been and continues to be focused on her job as United States Attorney. Carmen, like her predecessors, makes very difficult decisions every day and those decisions often resonate widely in our own communities, and the nation for that matter. For all the praise for investigating public corruption, terrorism and organized crime cases, there will always be criticism. It comes with the job.”

Dunn sympathizes with what one observer describes as Ortiz’s “between-a-rock-and-a-hard-place position” in regard to federal prosecutorial decisions that often emanate from Washington, and the kind of negative fallout that would put a nail in the coffin of political ambitions anywhere.

“I don’t know if people are particularly passing their blame to Carmen Ortiz unfairly, but in fairness to her, I suspect she feels that she had a job to do, so things might have been done differently,” he said. “That’s the beauty of hindsight.”

But others are not so sympathetic, and Ortiz says she will have to live with that. It comes with the job.

First Circuit Ruling on US Attorney Petition for Rehearing: Denied

United States Court of Appeals
For the First Circuit
No. 12-1236
IN RE: REQUEST FROM THE UNITED KINGDOM PURSUANT TO THE TREATY
BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA
AND THE GOVERNMENT OF THE UNITED KINGDOM ON MUTUAL
ASSISTANCE IN CRIMINAL MATTERS IN THE MATTER OF DOLOURS PRICE
——————————
UNITED STATES
Petitioner – Appellee
v.
TRUSTEES OF BOSTON COLLEGE
Movant – Appellant
____________________________

Before
Torruella, Boudin* and Thompson,
Circuit Judges.

ORDER OF COURT
Entered: September 5, 2013

Appellee’s Petition for Rehearing is denied.

By the Court:
/s/ Margaret Carter, Clerk

cc:
Jeffrey Swope, James Cotter, III, Eamonn Dornan, Dina Chaitowitz, Randall Kromm, John McNeil

____________________________

*Judge Boudin did not participate in the consideration of this matter.

Case: 12-1236 Document: 00116578535 Page: 1 Date Filed: 09/05/2013 Entry ID: 5761299

Case Around Belfast Tapes Continues

Case Around Belfast Tapes Continues
By Eleanor Hildebrandt
News Editor
The Heights
Thursday, September 5, 2013

Editor’s Note: This story is part of an ongoing series about the subpoenas of the Belfast Project.

On Friday, May 31, the U.S. Court of Appeals for the First Circuit in Boston issued a ruling with regard to interviews from the Belfast Project, Boston College’s oral history project on the Troubles in Northern Ireland.

The interviews in question were subpoenaed in 2011 by the U.S. Department of Justice in pursuance with the Treaty Between the Government of the United States and the Government of the Kingdom of Great Britain and Northern Ireland on Mutual Legal Assistance on Criminal Matters, or Mutual Legal Assistance Treaty (U.S.-UK MLAT). UK authorities requested the tapes in connection with an investigation by the Police Services of Northern Ireland (PSNI) into the 1972 death of Jean McConville.

U.S. District Court Judge William G. Young, who originally reviewed the tapes to determine their relevancy to the McConville investigation, ordered that 85 of the interviews, conducted with seven former members of the Irish Republican Army (IRA), be turned over to the UK authorities. The University contested the decision, and Judge Juan R. Torruella of the First Circuit Court reexamined the subpoenas. Torruella determined that only 11 segments of the 85 interviews were relevant and needed to be released.

“[The district court] abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena,” Torruella said in the 29-page decision. He also stated that it was the duty of the courts, and not the federal government, to enforce, delay, or narrow the scope of subpoenas issued under MLAT.

“We are pleased with the appeals court ruling which affirms our contention that the district court erred in ordering the production of 74 interviews that were not relevant to the subpoena,” said University Spokesman Jack Dunn in a statement. “This ruling represents a significant victory for Boston College in its defense of these oral history materials.”

After fighting the original subpoenas, BC has already handed over Belfast Project interviews from former IRA members Brendan Hughes and Dolours Price, both of whom are deceased.

Belfast Project director Ed Moloney, alongside Belfast Project researcher and former IRA member Anthony McIntyre, issued a joint statement shortly afterward in support of the ruling. “From the very outset of the serving of these subpoenas over two years ago we have striven to resist completely the efforts by the PSNI, the British Home Office and the U.S. Department of Justice to obtain any and all interviews from the Belfast Project archive at Boston College,” the statement read. “The [First Circuit Court] said that only interviews that deal directly with the disappearance of Jean McConville can be handed over as opposed to the indiscriminate consignment of the entire contents of interviews with eight of our interviewees. We see this judgement as at least a partial indictment of the whole process.”

Following the First Circuit Court’s decision, the U.S. Department of Justice was given until early August to decide whether or not to accept the ruling. Ultimately, a petition was filed with the U.S. Court of Appeals to rehear the decision. “On August 22 Boston College filed an opposition to the government’s petition to revise the appeals court decision,” Dunn said. “This is where the case stands now.”

The Department of Justice’s contestation of the appeals court decision was not the only issue that Belfast Project faced over the summer. On July 29, The Belfast Telegraph reported that BC was unable to locate a coded key identifying three of the seven interviewees whose tapes are still the subject of the ongoing subpoena case. Moloney, who had been interviewed for the piece, asserted that the coded keys had been delivered to BC’s archivists while the project was underway, suggesting that BC historians were to blame for losing the key. He stated that after moving to New York in 2001, partway through the project’s duration, he was no longer in contact with either interviewee contracts or identification keys. Moloney further said that the transport of those documents from Ireland to the U.S.—a transaction which, by virtue of its sensitivity, had to be carried out in person rather than via post or the Internet—was the responsibility of University personnel.

Two days later, Burns Librarian Robert O’Neill responded to Moloney’s allegation in a letter that was also published by The Belfast Telegraph. “As Ed Moloney well knows, the materials were not lost; rather, they were never received, in clear violation of his contractual obligation,” O’Neill said in the letter. “Ed Moloney has consistently deflected any blame from himself onto me and Professor Thomas Hachey at Boston College. He has made several false allegations against me. The Belfast Project was an opportunity to record the stories of paramilitaries, which otherwise would have been lost to posterity. It was a noble effort. It involved a great deal of work and risk for all concerned and it is sad to witness it devolve into a character assassination in which Ed Moloney refuses to accept responsibility for a project he himself was entrusted to manage.”

Moloney rejoined in an August 5 piece printed in the Telegraph, reiterating his statement that he was never in possession of the donor forms—the contracts that all Belfast Project participants were required to sign before being interviewed. “Dr. O’Neill now accuses me of ‘a clear contractual violation’ by not providing the donor forms,” Moloney said in the piece. “But, if Boston College was in any way concerned about any contractual violation, it failed to either raise the issue with me, or to take any action before the time limits expired for enforcing any obligations in 2012 … [BC] had the opportunity to complain of contractual breach as late as 2011 when the subpoenas were issued and it realised it did not have several donor agreements, but never once did so.” Moloney continued, repeating that as he was living in New York, O’Neill would have been responsible for handling the documents, and concluding that, “Since I never handled the forms, I could not lose them.”

The University maintains that Moloney is still obligated to identify the three participants in question, however. “Project Director Ed Moloney was contractually obligated to supply a key to Burns Librarian Robert O’Neill that identifies the interviewees,” Dunn said. “Boston College’s Attorney Jeff Swope contacted Mr. Moloney’s attorney after the May 31 court ruling to request that he fulfill his contractual obligation. Mr. Moloney has thus far declined the request.”

Opposition of Boston College to Government’s Petition for Panel Rehearing

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________________________________________________________________
No. 12-1236
IN RE: REQUEST FROM THE UNITED KINGDOM
PURSUANT TO THE TREATY BETWEEN THE GOVERNMENT OF THE
UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE
UNITED KINGDOM ON MUTUAL ASSISTANCE IN CRIMINAL
MATTERS IN THE MATTER OF DOLOURS PRICE,

UNITED STATES,
Petitioner – Appellee
v.
TRUSTEES OF BOSTON COLLEGE, ET AL.,
Movants – Appellants.

__________________________________________________________________
OPPOSITION OF BOSTON COLLEGE TO
GOVERNMENT’S PETITION FOR PANEL REHEARING
__________________________________________________________________

 

Appellants Trustees of Boston College and two of its representatives, Robert K. O’Neill, the Librarian of the John J. Burns Library at Boston College, and Boston College University Professor Thomas E. Hachey (collectively, “Boston College”), oppose the government’s Petition for Panel Rehearing, which the government styles as a request that this court modify its May 31, 2013 opinion in this appeal. By order dated August 8, 2013, this court directed Boston College to file this response….

PSNI receive Dolours Price interviews

PSNI receive Dolours Price interviews
Irish Republican News
7 July 2013

Confidential interviews with senior IRA figure Dolours Price have been handed over to British security forces, it has been confirmed.

The PSNI police in the north of Ireland said two detectives had e travelled to Boston to take possession of materials authorised by the United States Supreme Court.

“The officers will return to Northern Ireland to assess the material and continue with their inquiries,” a spokesman added.

It is thought the interviews may contain information which might be used by the PSNI against a number of republicans, including senior Sinn Fein figures.

Dolours was a former republican hunger-striker who became a bitter critic of Sinn Fein when the party encouraged the IRA to give up its weapons and joined a local devolved administration under British rule.

She clashed with party leader Gerry Adams in recent years over his denials that he had never been a member of the IRA.

The 62-year-old consistently had claimed that Mr Adams, now a Louth TD, had played a significant role in IRA actions, including the controversial killing of alleged informer Jean McConville.

She who died in January amid a trans-Atlantic legal battle over her interviews and after a long battle with post-traumatic stress disorder and depression.

The allegations are among those believed to be contained in an interview with Irish ‘researchers’ Anthony McIntyre and Ed Moloney, who were hired for the purpose by the American university.

The recordings were started in 2001 and were made on the condition that confidentiality would be guaranteed until after the death of the republicans and loyalists who took part.

McIntyre and Moloney failed to block the release of the tapes after the PSNI launched a high profile legal challenge to obtain the testimony. However, they said the eleven interviews which were ordered to be released to the PSNI are of limited value, and significantly reduced from a previous demand for 85 interviews.

The PSNI’s move to take possession of the tapes this weekend appeared designed to pre-empt a new legal challenge based on an internal British police report which found bias in the handling of historical cases by the PSNI’s Historical Enquiries Team (HET).

The Policing Board in the North has said it has no confidence in the leadership of the HET Team on foot of the damning report, which found British soldiers had received preferential treatment from investigators.

In a statement on Saturday, Moloney and McIntyre urged the Dublin and London governments “to suspend all criminal and non-criminal inquiries into the past until agreement has been reached by all parties on a credible way forward and a mechanism to deal with the past has been created in such a way that it commands widespread confidence and support”.

PSNI confirm securing Boston College tapes on Jean McConville’s murder

PSNI confirm securing Boston College tapes on Jean McConville’s murder
by Gemma Murray
News Letter
Published on the 07 July 2013

THE PSNI have confirmed that transcripts of interviews relating to the murder of IRA victim Jean McConville, carried out as part of a project at Boston College, are being handed over.

The PSNI had been attempting to obtain the transcripts of tapes recorded with IRA member Dolours Price, who died in January.

The transcripts are understood to contain information about the death and disappearance of the Belfast mother-of-10.

In a statement the PSNI said: “Two detectives from Serious Crime Branch have travelled to Boston to take possession of materials authorised by the United States appeal court as part of their investigation into the murder of Jean McConville.

The west Belfast mother was among dozens of people – later known as the Disappeared – who were abducted, murdered and secretly buried by republican militants during the Troubles.

The officers will return to Northern Ireland to assess the material and continue with their inquiries.”

The transcripts were made as part of Boston College’s ‘Belfast Project’, which was designed to be an oral history of Northern Ireland’s Troubles.

Project director, Ed Moloney, and his researcher, Anthony McIntyre, had resisted attempts by the PSNI to obtain the transcripts, and had hoped that the US Supreme Court would overturn a Boston Federal Court decision to hand the tapes over.

Ms Price was an unrepentant republican hard-liner who became a bitter critic of Sinn Fein when the party endorsed the Good Friday Agreement and encouraged the IRA to give up its weapons.

She clashed with party leader Gerry Adams in recent years over her allegations that he had been her IRA Officer Commanding during the early 1970s.

The 62-year-old consistently claimed that Mr Adams, now a Louth TD, had ordered the kidnap and killing of Mrs McConville in 1972.

Mr Adams has always denied being a member of the IRA.

She said she had made the claims in an interview with the American university academics who have compiled an oral history on Northern Ireland’s 40-year conflict.

The recordings were started in 2001 and were made on the condition that confidentiality would be guaranteed until after the death of the republican and loyalist paramilitaries who took part.

Price, the former wife of actor Stephen Rea, was convicted and jailed along with her sister Marian for the 1973 attack on London’s Old Bailey courts in which one man died and more than 200 people were injured.

She spent eight years in jail including several weeks on hunger strike before being released in 1980.

Federal Court Rules that Subpoenas are Its Domain, Boston College Still Directed to Comply

Federal Court Rules that Subpoenas are Its Domain, Boston College Still Directed to Comply
Higher Education Highlights – Summer 2013
JD Supra Law News
by James D. Taylor and Nichole C. Alling

University lawyers are well-accustomed to responding to broad reaching and burdensome subpoenas.

Many are mundane, requiring little substantive work, but occasionally the subpoena touches on more important issues and principles.

That is precisely what happened recently in the First Circuit Court of Appeals.

There, the court held that “the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States.” United States of America v. Trustees of Boston College, No. 12-1236 (1st Cir. May 31, 2013).

The decision – which comes after years of dispute between Boston College and the United States government over the government’s August 2011 subpoena seeking oral histories collected by Boston College for the school’s “Belfast Project” – further clarified the role of the federal courts in the enforcement of subpoenas and rejected the government’s position that courts have no discretion under 18 U.S.C. § 3512 and the US-UK MLAT (a 1996 Treaty between the United States and the United Kingdom on mutual legalassistance in criminal matters) to review subpoenas issued pursuant to the US-UK MLAT.

The government’s August 2011 subpoena resulted from a request by the UK to the U.S. government pursuant to the US-UK MLAT for assistance in investigating the 1974 disappearance of a woman in Belfast, and sought to gain access to Boston College’s Belfast Project materials to help it do so.

Of specific interest were a number of interviews and testimonies of former participants in the oft-violent independence movement in Northern Ireland, which were a part of the numerous oral histories that comprised the Belfast Project.

Due to strict confidentiality agreements with the interviewees, Boston College closely monitored use of the project materials and restricted access for research and study purposes.

It was not surprising then that Boston College filed a motion to quash the government’s August 2011 subpoena.

But the college’s request was denied and the District Court of Massachusetts ordered the production of 85 Belfast Project interviews.

Boston College appealed that decision, which led the First Circuit Court of Appeals to consider the federal courts’ constitutional position to review and control the process of executing a subpoena request.

Reviewing both the language of the US-UK MLAT and the constitutional role and reasoning behind the U.S.’s tri-furcated balance of powers, the Court of Appeals rejected the government’s position that only the Attorney General, and not the courts, could review subpoenas issued pursuant to the US-UK MLAT.

According to the court, if its conclusion were other-wise, federal courts would be no more than “rubber stamps for commissioners appointed pursuant to the treaty” and subpoenas issued by the executive branch would be “automatically enforced by the courts” in such a way that the executive branch would “virtually exercise judicial powers.”

That, the court found, would be contrary to the constitution.

After finding it had discretion to review enforcement of the August 2011 subpoena, the court then found that the subpoena materials were to be reviewed under an “ordinary standard of relevance,” declining Boston College’s request that review be under a heightened “direct relevance” standard.

Nevertheless, the court held that the district court abused its discretion by directing the production of certain Belfast Project materials irrelevant to the government’s August 2011 subpoena.

Exercising its “inherent judicial function,” the court reduced the number of oral histories ordered for production from 85 to 11.

Court Releases Only Some BC Interviews from ‘Belfast Project’

Court Releases Only Some BC Interviews from ‘Belfast Project’
By Brett Snider, Esq.
June 11, 2013
FindLaw First Circuit News and Information Blog

In a decision penned in late May, the First Circuit ordered the release of a limited amount of interviews from the “Belfast Project” to the British authorities.

The “Belfast Project” is a Boston College compilation of personal interviews and testimonials from former Irish Republican Army members, and in 2011 the British government successfully subpoenaed BC for 85 of those taped interviews and transcripts for a criminal investigation.

The Court only released 11 of the interviews, in an interesting conflict of United States-United Kingdom treaty and academic integrity.

Academic Privilege

The First Circuit made no bones about saying that the “academic privilege” or breaking of confidentiality by responding to a criminal subpoena is “not by itself a cognizable First Amendment or common law injury.” Branzburg v. Hayes, a Supreme Court case, established that even reporters cannot use the aegis of theFirst Amendment to deny a grand jury subpoena or answering questions for a criminal investigation.

Branzburg seems to apply here, and the First Circuit agrees; a criminal investigation over possible murder trumps a First Amendment privilege to keep your sources confidential.

The Treaty

The subpoena was made under the power of the US-UK Mutual Legal Assistance on Criminal Matters Treaty (US-UK MLAT) of 1996, which empowers the UK to have the U.S. provide “documents, records, and evidence.”

The government argued that only the Attorney General has the power to deny a request under US-UK MLAT, but the Court rejected this argument, stating that enforcing subpoenas is “an exercise in judicial power,” much like the Ninth Circuit did with a US-Russia MLAT.

A treaty can’t undo the federal court’s power to review and enforce subpoenas, and it would be an imbalance in powers to allow the Attorney General plenary discretion in this area.

Only Relevant Interviews

The subpoena in question requested information relevant to the abduction and death of Mrs. Jean McConville, a woman who was an alleged casualty of the 1970s-era struggle between the IRA and the British government in Ireland.

After re-reviewing these interview tapes in camera, the In re Dolours Price Court found that only 11 of the taped interviews were relevant to the subpoena, and denied the subpoena with respect to the other 74, citing abuse of discretion.

Whether this will seriously implicate any of the subjects on the tape in a crime remains to be seen, but the BC researchers see this as a victory, knowing that British and Northern Ireland authorities will not get the ‘show trial’ of IRA members that they wanted, reports The Boston Globe.

Related Resources: