Developments in the Boston College Belfast Project Case

Last week, there was a new development in the UK’s efforts to obtain judicial assistance in the US and obtain materials from the Belfast Project, Boston College’s oral history project on the conflict in Northern Ireland, for use in a UK criminal prosecution. Our previous coverage is here and here.

Ed Moloney and Anthony McIntyre, respectively the Project Director and the Senior Lead Researcher of the Belfast Project, have sought leave to intervene in the case. Moloney was the Northern Ireland editor for the Irish Times and the Sunday Tribune of Dublin before coming to the project, and McIntyre was, according to his affidavit, a former member of the Irish Republican Army. Each took part in the interviews of Dolours Price, which is one of the central focuses of the UK government’s discovery effort.

Moloney and McIntyre seek mandamus relief against the Attorney General, who, according to them, failed to perform his duties under the US/UK mutual legal assistance treaty. This claim seems far-fetched to me.

The claim has two main arguments based on the mutual legal assistance treaty. First, Moloney and McIntyre assert that under Article 18 of the MLAT, the Attorney General had an obligation to consult with the UK authorities before issuing the subpoenas. Here is Article 18 in pertinent part:

1. The Parties, or Central Authorities, shall consult promptly, at the request of either, concerning the implementation of this Treaty either generally or in relation to a particular case. Such consultation may in particular take place if, in the opinion of either Party or Central Authority, the expenses or other resources required for the implementation of this Treaty are of an extraordinary nature, or if either Party has rights or obligations under another bilateral or multilateral agreement relating to the subject matter of this Treaty.

This provision does have a mechanism for consultations, but the mechanism seems, on the face of the provision, discretionary, which, it seems to me, is fatal to a mandamus claim.

Second, Moloney and McIntrye assert that the Attoreny General did not comply with Article 3 of the treaty, which provides, in pertinent part:

1. The Central Authority of the Requested Party may refuse assistance if:

(a) the Requested Party is of the opinion that the request, if granted, would impair its sovereignty, security, or other essential interests or would be contrary to important public policy; [or]

* * *

(c) the request relates to an offense that is regarded by the Requested Party as:

(i) an offense of a political character …

I haven’t researched the point, but my immediate reaction is that this is again a discretionary decision for the Attorney General to make, and the court will not second-guess the Attorney General’s decision to grant the request.

Moloney and McIntyre also fail to come to grips with Article 1(3) of the MLAT, which provides:

This Treaty is intended solely for mutual legal assistance between the Parties. The provisions of this Treaty shall not give rise to a right on the part of any private person to obtain, suppress, or exclude any evidence, or to impede the execution of a request.

This provision strongly suggests that Moloney and McIntyre lack standing to make a claim that relies on the MLAT.

Moloney and McIntyre make some additional miscellaneous arguments, including a First Amendment argument, which do not seem strong, though I don’t comment on them more here.

H/T to Boston College Subpoena News, a new blog covering the case from a pro-BC perspective. I infer, from a post on his Broken Elbow blog, that the new blog is a project of Mr. Moloney himself.

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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