Yesterday, Judge Young heard arguments on NBC’s request to unseal the Belfast Project materials. Curiously, NBC did not appear at the hearing. It may be that it did not receive notice of the hearing. This is not surprising, since rather than entering an appearance through counsel and making a motion to lift the order of impoundment. “I don’t respond to letters,” Judge Young said. (Richard O’Rawe’s lawyers in Northern Ireland also submitted a letter—a very odd letter—that the judge also ignored and that I will ignore, too). All the same, the Judge thought he had an independent obligation to determine whether to maintain the impoundment now that the case is over. Hence yesterday’s hearing.
Continue reading Belfast Project: Report on the Hearing on NBC’s Request To Unseal Documents
The First Circuit has issued what may well be the last opinion, in the US courts at least, in the Belfast Project case. Readers who would like to get up to speed on the case can find my prior coverage under the “Special Coverage” menu at the top of the screen.
The main point in the decision, which was a partial victory for Boston College, was that Judge Young had abused his discretion by ordering the production of many, but not all, of the interviews. This part of the decision is pretty unsatisfying, because the interviews themselves were submitted under seal. So we cannot judge for ourselves whether the First Circuit’s criticism of Judge Young’s decision was well-founded. But the First Circuit was clear on an important underlying point: the subpoenas called for the production only of interviews that related to the McConville murder and disappearance.
The court held, correctly, that it had the power to quash a subpoena, even if the subpoena was issued pursuant to a request under an MLAT. The Ninth Circuit had reached this result in In re 840 140th Ave. NE, 634 F.3d 557 (9th Cir. 2011), the case of the day from February 2, 2011. But the Ninth Circuit case stands for the proposition that the court has the power to refuse to enforce a subpoena that is unconstitutional. The First Circuit’s discussion of whether it should exercise its power turned only on whether each of the interviews was within the scope of the subpoenas, which is, from my perspective anyway, not a very interesting question. I don’t think anyone ever seriously argued that the government could require the production of any document whatsoever, whether or not it was within the scope of its own subpoenas. The only interesting point to note here is that the court rejected BC’s argument that because the case raised First Amendment sensitivities, a heightened standard of relevance applied. No, said the court, relevance and responsiveness to the subpoenas was to be judged under the ordinary rules applicable in all cases.
Boston College has the right to seek a rehearing en banc, or to seek review by the Supreme Court, or both. Supreme Court review seems exceedingly unlikely. Judge Boudin took senior status while the case was pending and did not participate in the decision, and while the case was pending Judge Kayatta was confirmed by the Senate. Thus the case was decided by two of the five judges in regular active service. Because a majority of those five judges were not on the panel, a petition for a rehearing en banc is not plainly futile, as it was in Moloney & McIntyre’s case. But a rehearing en banc remains a long-shot in my opinion.
The government has filed its opposition to the petition of Ed Moloney and Anthony McIntyre for a writ of certiorari in the Belfast Project case. The brief is, of course, of very high quality, as is almost always the case with briefs by the office of the Solicitor General. Of course, it’s easy for me to say so, as I more or less agree with the substantive points the brief makes.
The brief rejects M&M’s argument that they were denied an opportunity to be heard for the same reasons that I rejected it: M&M were heard on the merits and the courts rejected their arguments in light of Branzburg. They are not entitled to an evidentiary hearing, because the court found that they failed to state a claim on which relief could be granted. The brief also argues that none of the cases M&M and their amici—many from the civil context—are on point.
The brief also rejects the argument that the factors that animate a 28 USC § 1782 analysis should apply in the MLAT context. Again, this seems right. To the brief’s analysis, I would simply add the point that because the request was made pursuant to a treaty, once the executive decided not to refuse to honor the request, the United States should be obligated, in my view, to comply with the request except to the extent an evidentiary privilege applied.
M&M now have the option to file a reply brief. The clerk will distribute the briefs to the justices for consideration sometime after ten days from the filing of the government’s brief.