The ACLU has filed its amicus brief in the Belfast Project appeal. Because of the posture of the case—Moloney and McIntyre have appealed from the denial of their motion for leave to intervene—the ACLU brief focuses on the intervention issue. A few points:
- The brief does not address the question whether the motion for leave to intervene is moot in light of the fact that Moloney & McIntyre filed their own action and asserted whatever claims they wanted to assert. Come to think of it, I’m not sure that the Moloney & McIntyre brief addresses the issue either. As long as we think that Moloney & McIntyre could have prevented the turnover of the interview materials had their lawsuit been successful, the mootness issue seems highly significant to me.
- Whether or not the First Amendment protects oral histories, there is a separate question about whether Moloney & McIntyre themselves have an interest in the outcome sufficient to require the court to permit them to intervene. The main case the ACLU cites seems distinguishable. In In re Grand Jury Subpoena, 274 F.3d 563 (1st Cir. 2001), the intervenors claimed that they themselves had an attorney-client privilege to assert. The ACLU’s strongest point on this is that Moloney & McIntyre have an interest in maintaining relationships with the interviewees. But what is the factual basis for this argument? Would Moloney & McIntyre have taken second interviews from these folks had the government not issued its subpoenas? I don’t know enough about the facts to say.
- The brief’s treatment of the MLAT seems weak to me. The ACLU complains:
In the government’s view, the Mutual Legal Assistance Treaty between the U.S. and the U.K. authorizes a foreign power, acting with the Executive’s unreviewable stamp of approval, to compel citizens to produce confidential information for prosecutions abroad, unless the subpoena offends constitutional guarantees or violates a federally recognized privilege.
But isn’t that precisely right? If the subpoena does not call for privileged materials and does not violate the Constitution, isn’t it entitled to be enforced? The parade of horribles—the government could subpoena information under MLATs the United States has with unsavory regimes—seems overwrought in the absence of any reason to think that the Attorney General would grant judicial assistance in absurd cases such as the prosecution of a dead man in Russia or a political trial of an activist in China. The ACLU may be right that the British authorities’ motives are questionable in the case, but this seems to be precisely the kind of determination that the MLAT leaves to the Attorney General’s discretion.
- The brief’s strongest point, I think, is that Moloney & McIntyre were put at personal risk by the subpoenas and thus have enough of an interest in the outcome to support intervention. Leaving aside the mootness issue, this seems to me to be a reasonable argument.
- The brief makes reasonable arguments on the underlying First Amendment issue, the issue I have previously called a toss-up. I am not sure it is ultimately persuasive, for reasons I have given before. But the First Circuit, if it reaches the main issue, could indeed rule against the government.