The First Circuit has rejected the appeal of Ed Moloney and Anthony McIntyre against an order requiring BC to turn over to the government oral histories taken from participants in the Troubles. This post gives some of the background and summarizes the main points of the decision.

Some background

Because it’s been a while since I’ve written about the facts of the case, here is a brief summary. I’ve simplified the chronology of the case once it went to court.

Ed Moloney was the director of the Belfast Project, an oral history project at Boston College that aimed to collect oral histories from participants in “the Troubles,” the conflict between Catholics and Protestants, loyalists and republicans, in Northern Ireland in the second half of the twentieth century. One of his researchers was Anthony McIntyre, himself a former member of the IRA who served time in a British prison. Boston College had an agreement with Moloney that required each person interviewed to be given a contract “guaranteeing to the extent American law allows the conditions of the interview and the conditions of its deposit at the Burns Library, including terms of an embargo period if it becomes necessary.” The donation agreements between the interviewees and BC, however, did not contain the reference to the limitations of American law:

Access to the tapes and transcripts shall be restricted until after my death except in those cases where I have provided prior written approval for their use following consultation with the Burns Librarian, Boston College. Due to the sensitivity of content, the ultimate power of release shall rest with me. After my death the Burns Librarian of Boston College may exercise such power exclusively.

McIntyre interviewed more than two dozen participants on the Republican side of the troubles. Among the interviewees were Dolours Price and Brendan Hughes. Price, a former IRA member, participated in a car bombing in the 1970s and served several years of a twenty-year prison sentence before being pardoned. Price gave an interview in 2010 in which she admitted involvement in the infamous kidnapping and murder of Jean McConville in 1972 and in which she noted that she had been interviewed by researchers in Boston. Hughes, a former IRA commander, died in 2008, and his interviews formed part of the basis of Moloney’s 2010 book, Voices From The Grave.

The Price and Hughes interviews apparently aroused some interest within the Police Service of Northern Ireland. There is some speculation that in her interview, Price implicated Gerry Adams, a leader of Sinn Féin during the Troubles (and today) and according to some—including Moloney—a leader of the IRA at the time (Adams has denied that he was ever a member of the IRA).

In any event, the Home Secretary, who is the UK central authority designated to act under the US/UK mutual legal assistance treaty, submitted a request to the Attorney General (the US central authority) for judicial assistance. After receiving the request, the Attorney General, acting under 18 U.S.C. § 3512, applied, ex parte, for an order authorizing the issuance of subpoenas to Boston College for the interviews. In the end, the court issued two subpoenas.¹I would just like to renew my call for using “subpoena” instead of “subpoenae”, as Judge Young and at least some of the parties would have it. “Subpoena” is not a real Latin word, and thus we shouldn’t give it a Latin plural. I’m just sayin’. The first subpoena called for the Price and Hughes interviews. The second, broader subpoena called for all interviews containing information about the “abduction and death of Mrs. Jean McConville.”

Boston College produced the Hughes interviews to the government (Hughes had already died, and so on any view of the case Boston College no longer had an obligation of confidentiality to him) but otherwise moved to quash the subpoenas. The College’s basic argument was that it had a First Amendment privilege and could not be compelled to produce the interviews. Although it seemed initially that Moloney & McIntyre were cooperating with the College, at some point they became dissatisfied with the College’s vigor in opposing the subpoenas and they sought leave to intervene. In addition to the First Amendment claim, M&M made another constitutional claim, alleging a denial of their right to life under the Due Process Clause on account of the danger they would be in if the documents were produced. They also argued that the government had failed to comply with the MLAT in a few respects. First, they argued that the crimes the UK authorities were purporting to investigate were political crimes. Second, they argued that the Attorney General had not properly conferred with his UK counterparts, as they claimed the treaty required. Last, they argued that the judge had discretion to refuse to issue the subpoenas even if they were proper under the MLAT. They sought leave to intervene both as of right and under the rule regarding “permissive intervention.”

Judge William Young denied Boston College’s motion to quash and ordered it to turn over the Dolours Price materials. At the College’s suggestion, he called for an in camera inspection of the other interviews, and the College provided the interviews to the judge. The judge also denied M&M’s motion for leave to intervene. After reviewing the materials in camera, Judge Young ordered the production of other interviews that had some relationship to the McConville case. Boston College and M&M appealed. But there is one key point—Boston College appealed only from the judge’s actions on the second subpoena; M&M appealed from the decision as to both subpoenas. That is, Boston College is not arguing on appeal against production of the Price and Hughes interviews.

Although Judge Young refused to stay his orders (beyond a brief stay to allow Boston College and M&M to seek relief from the Court of Appeals), the First Circuit did stay the orders pending the appeal.

Since M&M’s motion for leave to intervene had been denied, they commenced a new action against the government, asserting the same claims, more or less, that they had sought leave to assert in the original case. The government moved to dismiss, and after a hearing, the judge granted the motion. M&M again appealed, and its appeal was consolidated with its prior appeal from the denial of the motion for leave to intervene.

In its ruling last Friday, the Court of Appeals denied M&M’s appeal outright. Boston College’s appeal is still pending. I’ll discuss the prospects for the College’s appeal in light of the most recent decision later on.

The Majority Opinion

We turn now to the decision denying BC’s appeal. Let’s look at Chief Judge Lynch’s opinion, which she wrote for herself and Judge Boudin. The opinion covers three basic claims: (1) the claim that the Attorney General failed to comply with the MLAT; (2) the claim that the First Amendment gave them a privilege to insist that Boston College not turn over the interviews; and (3) the claim that the judge abused his discretion by enforcing the subpoenas.

MLAT Claims

I have long said that the MLAT claims lacked merit. There are a bunch of reasons for this: the MLAT does not actually require the Attorney General to consult with the Home Secretary, but rather only requires consultation when one party or the other requests it; the MLAT does not actually forbid judicial assistance in political offense cases but rather gives the parties discretion (unreviewable discretion, in my view) to refuse to grant judicial assistance in such cases. But the main reason is the reason the panel identified: private persons have no right to enforce the terms of the MLAT. This is clear from Article 1(3):

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.

I give M&M’s lawyers full marks for effort as they tried to get out from under this language,²For example, they raised a claim under the Administrative Procedures Act, which the court rejected on the grounds that it was improper to do an end-run around the clear language of the treaty, which was meant to preclude judicial review. but at the end of the day the treaty is pretty clear—private parties have no rights to enforce the terms of the treaty, period.

First Amendment

I have long called the underlying First Amendment issue a toss-up. On the one hand, the First Circuit’s decision in Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998), suggests that there is an academic research privilege of some kind, at least in cases where a private party seeks the supposedly privileged information in a civil case. On the other hand, the precedents, from Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 665 (1972), to the Scooter Libby/Judith Miller case, are quite hostile to the idea of a privilege in the face of a grand jury subpoena, and as I noted in my response to Chris Bray’s thoughtful post, the policy of the common law is hostile to such a privilege:

For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man’s evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.

* * *

In general, then, the mere fact that a communication was made in express confidence, or in the implied confidence of a confidential relation, does not create a privilege. This common law rule is not questioned today. No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice.

For better or for worse, the First Circuit has now come down clearly on the side of Branzburg rather than Cumusano, rejecting as a general matter the notion that a promise of confidentiality in an oral history project can bind the government. I think Chief Judge Lynch may actually have managed to improve on Wigmore’s pithy statement of the policy of the law:

The choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers.

Given the court’s analysis, M&M’s best chance was probably to try to distinguish their case from Branzburg on the grounds that there is some relevant difference between the public interest in a foreign criminal proceeding and the public interest in a US criminal proceeding. But this distinction was unpersuasive to the court, which reasoned that the public interest here was even greater than in Branzburg, since both the Executive and the Senate have expressly committed the United States to the MLAT, whereas in Branzburg the grand jury’s subpoena was at the behest only of the Executive. I’m not sure that this is persuasive, but in any event, I don’t think M&M really developed an argument on this issue in their briefs.

Standing

The panel could have avoided deciding the First Amendment issue had it accepted the government’s arguments about M&M’s lack of standing to assert their claim. But the panel held instead that M&M’s allegations about their fear that they would be killed or injured on account of the production of the interviews to the government was sufficient. To me this was the most surprising aspect of the decision. I am not going to give a full analysis of the standing question here, because standing is quite far removed from the ordinary concerns of Letters Blogatory. But in short, it seems to me that the true questions are: whom does the subpoena seek to compel (Boston College), and whose privacy interests are at stake (the interviewees).

Discretion

M&M argued that the judge had discretion to refuse to issue the subpoenas even if they were proper under the MLAT. I don’t believe this is correct. It seems to me, based on the reasoning in In re Search of Premises Located at at 840 140th Ave. NE, Bellevue, Wash. (9th Cir. 2011), that the court must issue and enforce the subpoena as long as it is constitutional to do so. Once the judge decided—correctly, as it turns out—that the First Amendment did not bar the subpoenas, I think he ought to have held that he lacked discretion to refuse enforcement. The First Circuit left this question open and assumed for the sake of argument that the judge did have some discretion. It held that the judge had adequately weighed the public and private interests and thus that he had not abused his discretion. But in a footnote, the court did reach an important conclusion–the Intel factors, the factors normally relevant to a request for judicial assistance under 28 U.S.C. § 1782, are not applicable to proceedings under 18 U.S.C. § 3512 or to proceedings under an MLAT, at least where the MLAT itself provides the substantive standards to be used in judging the request.

The Concurrence

Judge Toruella concurred in the judgment only. In his view the majority opinion went too far in asserting that M&M lacked a First Amendment interest altogether, though he agreed that Branzburg compelled the court to affirm Judge Young’s orders. I am not sure I read the majority opinion as broadly as does Judge Toruella. I think the majority would agree that in a civil case, where the discovery is sought by a private party, the First Amendment requires a weighing of interests. The difference between saying that Branzburg weighed the interests in the criminal context and held that the government always wins and saying that academics have no First Amendment interest when the government seeks documents for use in a criminal prosecution seems like a merely semantic argument to me.

Next Steps

Is this the end of the road for Maloney and McIntyre? Not by a long shot! If there is one argument I do not think they will be able to make when this is all over, it’s that they didn’t get due process from the US courts.

Lurking behind whatever steps M&M take will be the desire to keep the stay of Judge Young’s order in place as to the Dolours Price materials. (I assume the stay as to the other materials will stay in place pending resolution of Boston College’s appeal, but recall that BC did not appeal from the order as to Dolours Price).

1. M&M have 45 days from the date of the judgment, i.e., from July 6, to petition for a rehearing before the same three-judge panel. The rules of appellate procedure require M&M to point out “each point of law or fact that the petitioner believes the court has overlooked or misapprehended.” In essence, a petition for a rehearing is an argument that the panel clearly got it wrong. Given the strength of the opinion and the relatively unprecedented nature of the case, I think M&M are unlikely even to try this route in isolation, though they may combine a petition for an en banc hearing with a petition for a rehearing.
2. M&M could petition for an en banc hearing, in which all of the judges of the First Circuit together, not just the three on the original panel, would rehear the case. This is a much more likely avenue for M&M. Again, M&M have 45 days to submit such a petition. There are basically two grounds for seeking en banc review: (1) a conflict between the panel’s decision and a decision of the Supreme Court or another decision of the First Circuit; or (2) a question of “exceptional importance” (which can include a conflict with a decision of another of the courts of appeals). I don’t see a real conflict among the decisions here, though I suppose M&M could argue that the decision is in conflict with is decision in the Cusumano case. Judge Toruella, one of the panelists, has shown a willingness to vote for en banc hearings on these grounds even when it seemed clear (to me, at least) that there was not much legal merit to the losing side’s argument, but unfortunately for M&M, Judge Toruella’s concurrence indicates that he thought the panel’s decision was compelled by Supreme Court precedent, so he seems unlikely to approve an en banc hearing on “extraordinary importance” grounds.
3. M&M could petition the Supreme Court for a writ of certiorari to review the decision. I think it somewhat unlikely that M&M will turn to the Supreme Court right away. I think their strategy has been to play for time in the hopes of finding a political solution to their problem either in Washington or in Westminster. If they seek an en banc hearing, which to my mind is the most likely course, then they will have ninety days from the denial of a rehearing to file their petition (assuming that the First Circuit denies the rehearing). In general, given the lack of conflict among the circuits and the fact that this is a case of first impression and not of overwhelming public importance, I think the chances of success on a petition for certiorari are about the same as the chances of success in other interesting and novel cases, namely, low.

Prospects for Boston College’s Appeal

It is fair to say that the prospects for Boston College’s appeal are much, much dimmer than they were before Friday. The panel could have resolved M&M’s claims without reaching the issues Boston College raises in its appeal. But once it found that M&M had standing to assert the First Amendment claim, the panel went on to decide the claim in a way that will make it very difficult for Boston College to prevail. Boston College’s argument was basically that Cusumano controlled and that the judge had failed to apply heightened scrutiny as Cusumano requires. But Friday’s decision makes it clear that Branzburg, not Cusumano, will prevail.³In general, the decision of one panel is binding on subsequent panels in other cases, except when subsequently announced controlling authority requires a different result. See San Juan Cable LLC v. Puerto Rico Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010). That’s a very simplified statement of the issue, and I am sure BC will come up with something to say. But this is not decision BC wanted.

Photo credit: Boston Starbucks Rebel

• 1
  I would just like to renew my call for using “subpoena” instead of “subpoenae”, as Judge Young and at least some of the parties would have it. “Subpoena” is not a real Latin word, and thus we shouldn’t give it a Latin plural. I’m just sayin’.
• 2
  For example, they raised a claim under the Administrative Procedures Act, which the court rejected on the grounds that it was improper to do an end-run around the clear language of the treaty, which was meant to preclude judicial review.
• 3
  In general, the decision of one panel is binding on subsequent panels in other cases, except when subsequently announced controlling authority requires a different result. See San Juan Cable LLC v. Puerto Rico Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010).