Update on the Boston College / IRA Case

A while back I reported on In re Application for Appointment of a Commissioner, a case here in Boston  in which the government, acting on behalf of authorities in the United Kingdom, issued a subpoena to Boston College seeking to obtain oral histories that BC researchers gathered in connection with the Belfast Project, a study into the conflict in Northern Ireland that preceded the Good Friday Agreement of 1998. The UK sought the evidence under the US/UK mutual legal assistance treaty for use in a criminal investigation in Britain. BC sought to quash the subpoena, arguing that oral history projects such as Project Belfast depend on promises of confidentiality to the people who give oral histories, whose safety, BC, could be at risk if their cooperation with the Project was disclosed, and that this dependance is justifiable and should be protected.

I previously linked to BC’s brief in support of its motion to quash. There has now been additional briefing. The government’s main brief has a strong theme: “Simply put, the Respondents made promises they could not keep—that they would conceal evidence of murder and other crimes until the perpetrators were in their graves.” Zing! On a more technical level, the government argued that Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998), the case on which BC relies for its assertion that the court must undertake a balancing of interests, is inapposite because under the MLAT, discretion whether to grant or deny a request for judicial assistance rests with the Attorney General, not the court. The court, according to the government, can quash the subpoena only if enforcement of the subpoena would violate a testimonial privilege (a point the MLAT itself recognizes) or if enforcement of the subpoena would be unconstitutional. The government cited in support of its position In re Search of Premises, the Letters Blogatory Case of the Day from February 2, which arose under the US/Russia MLAT and involved the rather more prosaic allegation by the Russian authorities of “illegal crabbing.” The government also argued that even on a balancing test, BC’s position should fail, citing the recent First Amendment challenges to grand jury subpoenas issued to news reporters seeking the identity of confidential sources.

In its reply brief, BC does not really overcome the Ninth Circuit’s holding in In re Search of Premises since, as I read the Ninth Circuit’s opinion, the court was saying that as long as the courts retain the power to reject unconstitutional subpoenas, they have not abdicated the judicial role to the Executive Branch. But neither side cites a First Circuit case involving MLATs, so the outcome of the case is anyone’s guess. The case has been reassigned from Judge Stearns to Judge Tauro for reasons that are not apparent on the record.

Letters Blogatory will continue to follow this interesting case.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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