Guessing Games

Guessing Games
Chris Bray
TUESDAY, MAY 1, 2012

On Thursday, Boston College owes the First Circuit a brief that will lay out the basis for their appeal of the district court’s order to turn over Belfast Project interview materials to the U.S. Attorney’s Office in Boston. Because of some bad timing, the lawyers working on that brief are stuck with an unfortunate guessing game: The same court has already heard argument in another appeal regarding many of the same subpoenaed materials, but the court has not announced its decision in that case.

Remember that in its April hearing, the court brushed aside the government’s efforts to limit the issues before the court, insisting that Assistant U.S. Attorney Barbara Healy Smith address a set of constitutional challenges raised against the subpoenas by the lawyers for Ed Moloney and Anthony McIntyre, BC’s Belfast Project researchers. Asked if the First Amendment protects the confidentiality of academic research, Smith responded that there “is not a recognized privilege that would protect someone from giving evidence absent a strong countervailing interest — constitutional, common-law, or statutory privilege.”

That’s the heart of the position that BC will need to attack if it wishes to kill any part of these subpoenas, and the university’s lawyers have to frame their argument without knowing what the court thinks of a set of issues it has probably already considered.

It’s possible that the court’s decision in the appeal by Moloney and McIntyre wouldn’t help BC figure out the landscape anyway, since one possibility is that the court simply concludes that the researchers don’t have standing and so have no place in court to begin with. But the point is that BC doesn’t know, and has to write and present an argument without knowing.

In other news, the court has not responded to an unusual exchange of letters between the U.S. Attorney’s Office and the lawyers for Moloney and McIntyre. The government opened the exchange with a letter insisting that, contrary to claims made before the court, the researchers are in no danger at all from the disclosure of confidential interview material with the IRA over the murder of an informer. Eamonn Dornan, the principal lawyer for Moloney and McIntyre, had argued that the threat to the safety of the researchers and their families could be proven by the State Department’s efforts to ensure the security of McIntyre’s wife and children, who are U.S. citizens.

In response, Smith offered to prove that the State Department doesn’t believe the subpoenas present any threat to McIntyre’s family, and State and Justice are on the same page regarding the subpoenas. That claim is absolute nonsense, and will be easily disproved if a court opens the door to evidence, but the door is still closed.

Finally, a personal note. I owe the final draft of a dissertation in exactly two months, and will be grimly lashed to the thing day and night until then. Posting here will be light, though I’ll still note major developments regarding the Boston College subpoenas.