We have been closely following the Boston College Project Belfast case. If you haven’t been following, this is the case in which the government, at the request of the UK authorities, issued a subpoena to Boston College’s Project Belfast for oral histories that BC researchers took from participants in the Northern Ireland conflict. The researchers assured the interviewees that their stories would be kept confidential. The government’s subpoena tests the validity, or maybe the wisdom, of that promise.
On Friday, Judge William G. Young denied BC’s motion to quash the subpoena. The main opponents of the subpoena, Anthony McIntyre and Ed Moloney, two of the BC researchers, read the decision as a clear defeat for oral historians, but I say, “Not so fast!” Judge Young held that the subpoenas require heightened scrutiny because they raise First Amendment concerns, and he did not require BC to turn the materials over to government, but only to turn the materials over to him for a review in camera. We don’t yet know how the judge will come down on the merits, and the fact that he was willing to give heightened considerations to BC’s arguments, after the Judith Miller case, should give Moloney and McIntyre some comfort. Whichever side wins in the district court, it seems highly likely the First Circuit will weigh in.
Judge Young did reject Moloney’s and McIntyre’s motion for leave to intervene, as I predicted he would, though he did so on the simplest basis possible: Boston College more than adequately represented their interests in the case. He did, however, note the point I had been pressing: under the MLAT, Moloney and McIntyre have no right to challenge the Attorney General’s decision to accept the UK government’s request for assistance.
I’ll have a more detailed analysis of the decision later this week. For now, I have just one observation, aimed at Judge Young: the plural of “subpoena” is “subpoenas”, not “subpoenae”. “Subpoena” is not a Latin word. It’s a law Latin mashup of two of the key words that used to appear in the Court of Chancery’s process—“sub poena”, or “under penalty.” “Subpoenae” is a hypercorrection that should be avoided.