As you know, we are closely following developments in the Boston College Belfast Project case here in Boston. In summary, the US government, at the request of UK authorities under the two countries’ mutual legal assistance treaty, has sought leave to issue a subpoena to Boston College to obtain oral histories that BC collected from witnesses to the troubles in Northern Ireland, for use in a UK criminal investigation or prosecution. BC sought to quash the subpoenas, arguing, in essence, that because BC had promised confidentiality to the participants, it had a privilege not to disclose the information sought. The government asserted that there is no privilege and that BC made promises to interviewees that it could not keep. Then two of the researchers involved with the Project, Ed Moloney and Anthony McIntyre, sought leave to intervene, arguing primarily that the Attorney General had not complied with the MLAT and also raising various constitutional challenges.

Yesterday the government responded to Moloney and McIntyre. The main thrust of the brief is along the lines I suggested in the prior post: under Article 1(3) of the MLAT, private persons lack standing. The provision reads:

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.

The government put some meat on the bones of its argument by citing United States v. $734,578.82 in US Currency, 286 F.3d 641 (3d Cir. 2002), and United States v. Rommy, 506 F.3d 108 (2d Cir. 2007), as well as a case from the District of Massachusetts, United States v. Chitron Electronics Co., 668 F.Supp.2d 298 (D. Mass. 2009), all of which seem to stand for the proposition that private persons cannot enforce the terms of the MLAT. The court also rejected arguments that the proposed intervenors could assert rights under the Administrative Procedure Act or the Declaratory Judgment Act, or that mandamus would lie given the discretion the MLAT gives to the Attorney General.

I didn’t discuss the constitutional issues in my prior post, but the government’s brief takes them on. According to the government, McIntyre is a non-resident alien who lives in Ireland and thus who has no constitutional rights to assert. Moloney has no First Amendment right to assert because he has not been subpoenaed and to the extent he has a First Amendment argument, it is indistinguishable from BC’s First Amendment argument. Moloney also argued a violation of his “constitutional right to life” under the Fifth Amendment, but his affidavit, the government says, expressed concern only for the safety of others, not himself. Moreover, the substantive due process claim seems weak on the merits even if Moloney had expressed a concern for his own safety, on the basis of cases such as DeShaney v. Winnebago County, 489 U.S. 189 (1989).