Update on the Belfast Project Case: The Proposed Intervenors’ New Brief
Posted on December 7, 2011
We return today to the Belfast Project saga. If you haven’t been following this, the case involves a request by the government of the UK for judicial assistance under the US/UK mutual legal assistance treaty for issuance of a subpoena to obtain oral histories that participants in the Northern Ireland conflict gave to researchers at the Belfast Project, an oral history project at Boston College. The participants believed that BC had promised them confidentiality. The case tests whether that promise was any good. BC has moved to quash the subpoenas. The case is pending in the US District Court here in Boston.
Two of the researchers, Ed Moloney and Anthony McIntyre, have sought to intervene to challenge the subpoena. I covered their motion to intervene in my post of September 6. They want to assert a claim in the nature of mandamus, on the grounds that the Attorney General, before agreeing to the UK’s request for judicial assistance, was required to consult with the UK authorities before issuing the subpoena, and that the Attorney General was wrong to agree to the UK request, because the offense the UK authorities were investigating was an “offense of a political character.” I argued that Moloney and McIntryre’s position was in my view quite mistaken on all fronts. First, the requirement under the MLAT that the parties consult is a discretionary requirement, and so mandamus should not lie. Second, the MLAT similarly commits to the Attorney General’s discretion the decision whether to refuse to provide assistance if the offense is “of a political character.” Third, in any case the MLAT expressly provides that it creates no private cause of action. The government’s opposition pretty much followed along these lines, with additional arguments about sovereign immunity and other issues.
Now Moloney and McIntyre have filed their reply brief. I don’t think the brief strengthens their case for intervention appreciably. They argue that the court could consider the Intel factors in determining whether to issue the subpoena, but that is really a point about the merits and not about their right to intervene. They also assert that the MLAT’s bar on private causes of action applies only to criminal defendants; but they cite no case on point, and in fact, one of the cases they cite seems clearly to suggest that criminal defendants are merely one example of the kinds of private persons who have no right under the MLAT. See United Kingdom v. United States, 238 F.3d 1312, 1314 (11th Cir. 2011) (“There is no provision for private parties, such as individual criminal defendants in the English (or American) courts, to request the production of information”).
Moloney and McIntyre go on to challenge the government’s view on sovereign immunity, the applicability of the Administrative Procedure Act, and so on. I’ve been wrong before and I’ll be wrong again, but the effort to intervene here seems to me to be clearly unfounded. That’s not to say that I think that BC’s position lacks merit. As I’ve written before, I think the case is up for grabs given the lack of First Circuit precedent cited by the parties.