Monday, July 9, 2012

Small Mercies

Eamonn Dornan emails to say that the Dolours Price interview materials at Boston College will not go directly to the police in Northern Ireland as a result of the First Circuit's decision last week. A stay remains in place in forty-five days.

Friday, July 6, 2012

A Lot of Very Bad News

In Belfast today, a judge refused to issue a preliminary injunction to prevent the PSNI from taking receipt of subpoenaed IRA interview material held at Boston College. [Added later, here's a note from Anthony McIntyre: "It is uncertain that the judge in Belfast refused an injunction.  I don’t think it got to that stage. He just declined to let the application go ahead as he didn’t consider it urgent."]

In Boston, the First Circuit rejected the legal appeal filed by Belfast Project researchers Ed Moloney and Anthony McIntyre. The opinion is below. I haven't read it yet, but a separate one-page order affirms the orders of the District Court. A separate appeal from Boston College is pending, but challenges only the lower court's orders regarding a set of interviews with former IRA member Dolours Price. Another set of seven interviews were also the subject of Moloney and McIntyre's appeal, but not of the appeal filed by Boston College. [In a hurry, I got this backward: BC's appeal covers the later seven interviews, but not the interviews with Dolours Price. Those are the materials that may end up in police hands very soon.] Barring an immediate appeal to the Supreme Court, those interviews will likely be handed over to the U.S. Attorney's Office in Boston very shortly, and from there to the British government, which will hand them over to the Police Service of Northern Ireland.

Bottom line: Many confidential materials from a protected academic archive may very shortly be delivered to the police.

Decision is below.
First Circuit Decision in Mm Appeal

The Kevin Na of Government Lawyers

The U.S. Attorney's Office in Boston owes the First Circuit a response to Boston College's appeal over the second round of Belfast Project subpoenas. But they can't quite bring themselves to pull the trigger, the poor things: 
MOTION to extend time to file brief filed by Appellee US. Certificate of service dated 06/05/2012. [12-1236] (REK) 06/06/2012

ORDER granting motion to extend time to file brief filed by Appellee US. Brief due 07/06/2012 for appellee United States. [12-1236] (AS) 07/05/2012

MOTION to extend time to file brief filed by Appellee US. Certificate of service dated 07/05/2012. [12-1236] (REK) 07/06/2012

ORDER granting motion to extend time to file brief filed by Appellee US. Brief due 07/13/2012 for appellee United States. [12-1236] (AS)
In their latest motion, the government says they need more time to file their brief because everybody was out of the office for the July 4th holiday. And let's be fair: how could they possibly have anticipated that? (Where have I heard this before?)

In other news, the U.S. Attorney's Office recently replaced the lawyer assigned to promulgate the subpoenas as a commissioner under the terms of the Mutual Legal Assistance Treaty. Sixteen months after the subpoenas first went out, they're on their third commissioner.

 Blown deadlines, musical chairs, weak oral argument: this is an office that is going through the motions for a case they don't like.

Wednesday, July 4, 2012

Boston College Subpoenas Challenged in Belfast Courts

Former Belfast Project researcher Anthony McIntyre has filed a new legal challenge in Northern Ireland against the Boston College IRA subpoenas. While the long fight against the subpoenas has so far taken place in American courts, this effort opens a new front, challenging the subpoenas in the UK. The initial brief in this new lawsuit appears at the bottom of this post.

Most immediately, the brief asks the court to issue an interim injunction that would forbid the PSNI or the government of the UK from "taking custody" of the subpoenaed materials while the court considers the legal issues in the case. The outcome of that request should be clear in a very few days, while two legal appeals remain pending in the US -- one of which won't even be argued before September.

But the separate appeal filed by Belfast Project researchers Ed Moloney and Anthony McIntyre was heard back in May, and should decided any day, now. It's a broader appeal than the one filed by Boston College, covering a wider range of subpoenaed material. So the immediate issuance of a temporary injunction in the UK could become significant in the very near future if Moloney and McIntyre lose their appeal in Boston -- it would mean that the Department of Justice would get confidential IRA interviews on behalf of the UK that officials in the UK would be forbidden to accept.

Beyond that request for a temporary injunction, McIntyre's appeal seeks to kill off the subpoenas for good. The brief below makes several requests and several arguments, asking that the court declare the government's decision to request the subpoenas unlawful and beyond its powers.

Like the legal challenges brought by McIntyre and Moloney in the US, the Belfast lawsuit points to the language of the Mutual Legal Assistance Treaty under which the UK asked American officials to pursue the subpoenas. That treaty requires that requests between the two countries be analyzed according to particular criteria, protecting the political interests of both parties and preventing the use of legal assistance treaties to pursue political offenses.

See, especially, pg. 5, where the brief filed by McIntyre's solicitor argues that the government of the UK "failed, pursuant to Article 18 of the MLAT, to consult with the Attorney General of the United States regarding the United Kingdom's rights or obligations 'under another bilateral multilateral agreement relating to the subject matter of this Treaty' which includes, but is not limited to the Good Friday Agreement."

In the US, officials have argued that the terms of the legal assistance treaty are assigned to the discretion of the Attorney General, who can ignore them if he feels like it, and no one can do anything about it. So the courts in both the US and the UK are now asked to decide how Mutual Legal Assistance Treaties can be enforced, and who has standing to enforce them. What happens if the legal systems of two countries offer differ answers about the enforcement of a treaty between them?

The brief also makes an argument for academic freedom, although not quite in that formulation, arguing that the subpoenas interfere with McIntyre's "freedom of expression, including but not limited to his right to prevent the disclosure of information received in confidence."

And it argues that the subpoenas endanger McIntyre and his family, a contention that government lawyers in the US have casually dismissed.

An important set of questions -- now being considered by judges in two countries.

More soon. Brief follows:
Belfast Court Initial Filing

Saturday, June 16, 2012

What Are These People Doing?

On Friday, President Barack Obama shuffled into the Rose Garden and read a statement on immigration policy. Then he left without taking questions, despite the disgusting spectacle of a journalist actually daring to directly address Him with an unauthorized question (without even prostrating himself, no less). The statement was broadcast, and the White House Press Office released a transcript of the remarks.

Why do reporters go to these things? They get no information that they couldn't get by sitting in their offices and reading the statement on the White House website or by watching the thing on CNN. What is the point of their presence? What are they doing?

And if they don't ask any questions, in what sense are they engaged in "reporting," and in what sense are they "reporters," and couldn't the news media just save resources by pooling their cash and hiring a single clerk-typist to transcribe the television feed, just in case the press office fails to spoonfeed the official transcript in a timely fashion?

Reporters: do they?

It does not appear that they do.

Thursday, June 7, 2012

Self-Awareness: It Can Help

A post at ThinkProgress features video of a campaign ad in which a Republican congressional candidate blasts a bound copy of the Affordable Care Act with a shotgun. In response, a commenter wonders this: "What is it with the Republican's obsession with violent metaphors? Are they sociopaths or psychopaths?"

His profile photo? You'll never guess (click to enlarge):

That dude knows for a fact that only psychopaths mix political discourse with references to violence.

Wednesday, June 6, 2012

Incompetence or Indifference

Gov't Punts on BC Appeal

The United States of America is, like, real busy and stuff.

On May 4, Boston College filed an opening brief in its weak, half-hearted appeal of the district court's decision regarding the second set of Belfast Project subpoenas. The U.S. Attorney's Office in Boston owes a reply brief on June 7. On June 5, presumably wearing a beanie with a propeller on top and sucking its sugared thumb, the government filed a request for a 30-day extension. Two days before his brief is due, the AUSA handling the thing informs the court that he "has not been able to begin work on the government’s response in this case."

Has not been able to begin, he says.

The bizarre thing is that, first, BC's appeal is one of two appeals in the same case, since the Belfast Project researchers broke off from the university and filed their own appeal that got to court before this one. And second, the government stumbled into ongoing disaster when it argued that other related appeal before the same court. So they're already on bad footing, and the obvious next step if they cared about the matter at hand was to come blazing back with their best work in the next outing. Instead, they've signaled to the court that the thing they handled poorly last time is now their last priority, and man, judge dude, we totally know we had a deadline thing on this appeal thing, but we were totally busy with our calculus homework, man, can you cut me a break just this one time?

Even the Department of Justice knows it has a dog on its hands.
Govt Punts
UPDATE: The court has granted the request for an extension. The U.S. Attorney's Office in Boston has until July 6 to file its reply brief. It's a murder investigation! Feel the urgency!

Saturday, May 5, 2012

Tweedle Dee and Tweedle Dum, Attorneys at Law

Boston College appellate brief, May 3, pg. 12:

"The assurances of confidentiality were documented when the interviews were concluded. Each interviewee was given a form to donate his or her interview materials to the Burns Library at Boston College on the express condition that the materials would not be disclosed, absent the interviewee’s permission, until after his or her death."

Very same brief, pg. 7:

"Boston College was aware that Dolours Price herself had already disclosed her involvement in the Belfast Project and provided much of the information about her role in the IRA and the disappearances of individuals, including Jean McConville, in public interviews, which indicated that she was not seeking to protect the confidentiality of her Belfast Project interviews."

The "express condition" requiring direct permission for disclosure on one page becomes an implied waiver, inferred through vaguely sourced newspaper stories, on another. All interviewees were assured their interviews would be protected until and unless they contacted us and said not to protect them anymore, but then we read some stuff in a newspaper and so we guess this one interviewee gives up the confidentiality of her interviews.

If you enter into a contract with Boston College, they'll honor it. Until they feel some vague emanations from the ether, at which point they will perceive the institution to be released from its contractual obligations. We, like, saw this one news brief in the Sioux Falls Weekly Shopper that made us feel like we should tear up our agreement with you and do whatever was easiest for us. 

The institution should be obligated to wear these choices like a scarlet letter. They have no honor, and they make no sense.

Thursday, May 3, 2012

BC Files Appellate Brief in Belfast Project Case

Here's the brief Boston College filed today in its appeal of a portion of the Belfast Project subpoenas. I have limited time to write about this, because a dissertation is calling my name, but it seems to me there are some extremely strong arguments here. Unfortunately, those strong arguments appear alongside some tendentious and untenable representations of fact.

See especially the extraordinary footnote on pg. 7, which suggests that Dolours Price waived the confidentiality of her interview materials by speaking to a reporter about the murder of Jean McConville and about the fact that she had done interviews with academic researchers. Price's public statements, the brief argues, "indicated that she was not seeking to protect the confidentiality of her Belfast Project interviews." Boston College is claiming that human subjects can waive research confidentiality indirectly and informally, not just by directly and explicitly notifying researchers and archivists that they no longer wish to have research materials protected from disclosure. That's a hell of a claim, and you can expect to see it attacked by other academic researchers.
Bc Brief May 3 2012

Tuesday, May 1, 2012

Guessing Games

On Thursday, Boston College owes the First Circuit a brief that will lay out the basis for their appeal of the district court's order to turn over Belfast Project interview materials to the U.S. Attorney's Office in Boston. Because of some bad timing, the lawyers working on that brief are stuck with an unfortunate guessing game: The same court has already heard argument in another appeal regarding many of the same subpoenaed materials, but the court has not announced its decision in that case.

Remember that in its April hearing, the court brushed aside the government's efforts to limit the issues before the court, insisting that Assistant U.S. Attorney Barbara Healy Smith address a set of constitutional challenges raised against the subpoenas by the lawyers for Ed Moloney and Anthony McIntyre, BC's Belfast Project researchers. Asked if the First Amendment protects the confidentiality of academic research, Smith responded that there "is not a recognized privilege that would protect someone from giving evidence absent a strong countervailing interest -- constitutional, common-law, or statutory privilege."

That's the heart of the position that BC will need to attack if it wishes to kill any part of these subpoenas, and the university's lawyers have to frame their argument without knowing what the court thinks of a set of issues it has probably already considered.

It's possible that the court's decision in the appeal by Moloney and McIntyre wouldn't help BC figure out the landscape anyway, since one possibility is that the court simply concludes that the researchers don't have standing and so have no place in court to begin with. But the point is that BC doesn't know, and has to write and present an argument without knowing.

In other news, the court has not responded to an unusual exchange of letters between the U.S. Attorney's Office and the lawyers for Moloney and McIntyre. The government opened the exchange with a letter insisting that, contrary to claims made before the court, the researchers are in no danger at all from the disclosure of confidential interview material with the IRA over the murder of an informer. Eamonn Dornan, the principal lawyer for Moloney and McIntyre, had argued that the threat to the safety of the researchers and their families could be proven by the State Department's efforts to ensure the security of McIntyre's wife and children, who are U.S. citizens.

In response, Smith offered to prove that the State Department doesn't believe the subpoenas present any threat to McIntyre's family, and State and Justice are on the same page regarding the subpoenas. That claim is absolute nonsense, and will be easily disproved if a court opens the door to evidence, but the door is still closed.

Finally, a personal note. I owe the final draft of a dissertation in exactly two months, and will be grimly lashed to the thing day and night until then. Posting here will be light, though I'll still note major developments regarding the Boston College subpoenas.

Monday, April 23, 2012

Close Enough for Government Work

Mildly amusing new and tiny little discovery that will only be of interest to close observers of the Belfast Project subpoenas who enjoy making fun of government lawyers. That might very well be an audience of me, but let's do this thing anyway and call it a party.

When Assistant U.S. Attorney Barbara Healy Smith sent the First Circuit a letter, two weeks later, to say the things she hadn't thought to mention during oral argument over the Belfast Project subpoenas, nobody much understood what she was up to. Writing at Letters Blogatory, lawyer and longtime observer Ted Folkman shrugged that "it must be the silly season in the Belfast Project case."

"I am not sure of the procedural correctness of the government’s letter" Folkman wrote. "The Federal Rules are silent, and the letter is pretty plainly not a citation of supplemental authorities under Rule 28(j)."

Beats the hell out of me what that is, but then here comes my old friend Google with Rule 28(j) of the Federal Rules of Appellate Procedure:
(j) Citation of Supplemental Authorities.

If pertinent and significant authorities come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision—a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter must not exceed 350 words. Any response must be made promptly and must be similarly limited.
Here's a link to Barbara Healy Smith's letter, in full. It surely doesn't look to me like it cites any pertinent but previously overlooked authorities -- I just see whining. But here's the thing that Carrie Twomey just pointed out to me. If you open the letter in Adobe Reader and click on "properties," you see this:

So Barbara Healy Smith titled her document, which no one apparently perceived or even now perceives to be a Rule 28(j) letter, "Rule 28j letter (with red notations)."

If your letter isn't a Rule 28(j) letter, but you call it one, you're good. That totally covers it. This is why every document I write is titled something like, "Convincing letter to that dude who wants to sue me," or "Letter to my wife to not be mad at all about what I did to the left side of the car." 

And the red notations: Who from?

Thursday, April 19, 2012

Self-Inflicted Wounds

Below, a letter filed today with the clerk of the First Circuit by Eamonn Dornan and James Cotter, the lawyers for Belfast Project researchers Ed Moloney and Anthony McIntyre, responding to the extraordinary letter to the same court this week from Assistant U.S. Attorney Barbara Healy Smith.

The letter opens with a rebuke: "We could not find any provisions in the Federal Rules of Appellate Procedure or U.S. Court of Appeals for the First Circuit’s Rulebook which would permit the Department of Justice to make further submissions or communications once the Panel has risen following oral argument."

But then, walking through a door the U.S. Attorney's Office has opened, the letter goes on to challenge the government's premise that the State Department has not been in contact with the McIntyre family regarding the threat the Belfast Project subpoenas presents to their safety: "The Appellants are ready, willing and able to provide evidence of those contacts, if the matter is remanded."

So Barbara Healy Smith has given her opponents in a legal appeal an opportunity to point out to a court that she willfully disregards its rules, and to effectively call her a liar -- while offering to prove it.

The government seems determined to put on a public display of its bad faith and limited ability. Under the circumstances, I'm pretty happy about it.
Dornan Cotter April 19 Letter

Wednesday, April 18, 2012

Miserable Ratfuck Bastards

Among the documents that appear to have been destroyed were: records of the abuse of Mau Mau insurgents detained by British colonial authorities, who were tortured and sometimes murdered; reports that may have detailed the alleged massacre of 24 unarmed villagers in Malaya by soldiers of the Scots Guards in 1948; most of the sensitive documents kept by colonial authorities in Aden, where the army's Intelligence Corps operated a secret torture centre for several years in the 1960s; and every sensitive document kept by the authorities in British Guiana, a colony whose policies were heavily influenced by successive US governments and whose post-independence leader was toppled in a coup orchestrated by the CIA.

The documents that were not destroyed appear to have been kept secret not only to protect the UK's reputation, but to shield the government from litigation. If the small group of Mau Mau detainees are successful in their legal action, thousands more veterans are expected to follow.
-- "Britain destroyed records of colonial crimes: Review finds thousands of papers detailing shameful acts were culled, while others were kept secret illegally." Guardian, April 17, 2012.

These assholes are pursuing subpoenas of academic archives?

Monday, April 16, 2012

Mosquito Won't Stop Buzzing in Court's Ear

Two weeks ago, Assistant U.S. Attorney Barbara Healy Smith had a very bad day in court during oral argument before a panel of judges from the First Circuit. Today, amazingly, she's going for a do-over, filing a letter with the court to challenge arguments made by Eamonn Dornan, the exceptionally sharp lawyer who argued the Belfast Project appeal for Anthony McIntyre and Ed Moloney. More in a moment, but here's the letter:
Healy Letter

The remarkable thing is that Barbara Healy Smith spoke after Eamonn Dornan in court. She had an opportunity to challenge or rebut anything he told the judges. Having failed to do that, she now in effect comes padding back into the courtroom two weeks later, holds up a finger, and says, "And another thing...."

Lawyers, is this sort of thing common? Is it regarded as ethical? At the very least, it seems sniveling and unprofessional.


And then there's the remarkable content of the letter: "The government would be happy to provide additional information on this issue should the Court wish -- although such information would be outside the record of the case."

How on earth could the government possibly "provide additional information" to a court on an issue raised during oral argument about a case that the court is considering, but insist that "such information would be outside the record of this case," without appearing to suggest that they wish to have a private discussion with the judges who have decisionmaking authority in their cause?


In response to an email message, Eamonn Dornan describes the government's letter to the court as "inappropriate" and "highly unusual."

Monday, April 9, 2012

Cause and Effect

Okay, this is funny.

For months, the government lawyers arguing in court for the subpoenas of archival material at Boston College have sounded a persistent note of urgency: This is a murder investigation! There's no time for delay! Reflecting this urgency, the government pushed for an expedited schedule in the First Circuit, trying to resolve the legal appeals over the subpoenas as quickly as possible. (See, for example, this scheduling order in the appeal filed by Ed Moloney and Anthony McIntyre: "The government's request for an expedited briefing schedule is allowed. ")

Then came April 4, when the government's lawyer was left baffled and babbling by the questions from a panel of appellate judges in the Moloney and McIntyre appeal. Suddenly? Not so urgent. Below, a motion from Boston College's lawyers to slow down the briefing schedule in the university's separate and more limited appeal in the same case. Taste the funny: "The Government has authorized Boston College to advise the Court that the Government assents to this motion, and does so with the hope that briefing in this case will proceed expeditiously and that the case will be ready for argument by this Court’s September sitting."

Boston College, and their frenemies in the U.S. Attorney's Office in Boston, hope that briefing in this case will proceed expeditiously so that argument can happen soon. In, like, maybe let's skip the rest of the spring and the whole summer and go for, I don't know, early autumn?

Why the suddenly discovered need for a delay, in a motion filed two days after Eamonn Dornan and the ACLU of Massachusetts succeeded in thoroughly upending the government's arguments in court? The explanations from Boston College are as funny as the delay itself: "In-house counsel for Boston College reviewing and contributing to the brief has a previously long-scheduled vacation commitment out of the Boston area from April 13 to April 22, 2012."

A previously long-scheduled vacation suddenly necessitates an unanticipated delay in the briefing schedule that will push oral argument from June to September. Your honor, who could have guessed that a previously long-scheduled conflict would suddenly arise right after the government had a terrible day in court and the judges made fun of the idea that Boston College adequately represents the interests of its researchers, causing laughter in the courtroom? That previously long-scheduled vacation was a total curveball, for sure.
How About September

Friday, April 6, 2012

Academics: Read This Judge's Question

Chief Judge Sandra Lynch, addressing a question to a federal lawyer during an appellate hearing this week:

"Are you arguing then that there is a per se rule that it is never, when it involves a criminal prosecution, there is never any possibility of an academic privilege?...It's not clear to me whether you are arguing that there is an automatic rule that the First Amendment can never trump a criminal prosecution, or whether you are saying in most cases a criminal prosecution is a sufficiently legitimate government interest to override any First Amendment claim being made."

The important part of the lawyer's answer: "I can't think of where it would."

Prosecutors and university lawyers will be citing these cases for decades. The outcome will echo long and loud.

Wednesday, April 4, 2012

Thoroughly Reframed: The First Circuit Cuts Through the Haze

Start in the hallway, and look for little gestures.

A panel of judges from the First Circuit heard arguments today -- listen to them here -- in the pair of appeals filed by Belfast Project researchers Ed Moloney and Anthony McIntyre. But first there was a long wait, as the judges heard a challenge to the Defense of Marriage Act in a courtroom that had no open public seats. So everyone filing in for the arguments over the Boston College archival material stood around in a remarkably pleasant seventh-floor hallway, where the federal judiciary should open a bed and breakfast to take advantage of the awesome waterfront views.

Then the DoMA case ended, the courtroom emptied, and the people in the hallway filed in for the Belfast Project hearing. The result of that repopulation of an empty courtroom was clear enough. At one point, a judge asked a question that, as legal blogger Ted Folkman wrote shortly after the hearing, "sparked some laughter from the side of the courtroom where the Moloney & McIntyre partisans were sitting."

Like guests at a wedding, observers at the hearing lined up behind their sides: a team of lawyers from the U.S. Attorney's Office watched from the public seats on the center-right behind their colleague arguing the case, while (for example) the lawyers who wrote the ACLUM's amicus brief lined up on the left behind Eamon Dornan, the lawyer arguing on behalf of Moloney and McIntyre. Ed Moloney and Carrie Twomey, Anthony McIntyre's wife, sat up front on the left, behind Dornan.

Two lawyers attended as observers for Boston College: Associate Counsel Nora Field, and Jeffrey Swope, the outside lawyer the university hired to contestulate(*) the Belfast Project subpoenas.

Field and Swope? They sat to the right of the government lawyers.

"A Little Odd"

Now, about that laughter in the courtroom: It was triggered by an observation from Judge Michael Boudin, in response to the government's claims that Moloney and McIntyre have no interests in the case that aren't already represented by Boston College: "It's a little odd to be hearing how well Boston College represents these interests when they're not seeking to appeal the order to turn over the documents." Boudin was talking about the university's decision not to appeal a district court's order to give the government a set of confidential interviews with former IRA member Dolours Price, and yes: That's a line that merits laughter. Moloney and McIntyre are appealing the order, and Boston College isn't, but somehow Boston College fully represents the interests of Moloney and McIntyre.

But then Boudin kept going, turning to Smith's efforts to push away constitutional questions with repeated references to the mutual legal assistance treaty between the US and the UK: "And then you say they can't -- assuming they really had very serious First Amendment interests, somehow those would disappear because the treaty doesn't allow them to be raised. If those interests really existed, you'd think there must be some way to have them protected, regardless of what the treaty said, wouldn't you?"

By my count, Smith responded to the question with four seconds of startled silence.

It was that kind of day for her.

Let's Keep This Between Sovereigns

Smith had opened with an attempt to restrict the arguments the court would consider. "The issue here is much narrower than the appellants have presented it," she began. In its brief, the government had similarly tried to wave off whole areas of argument, insisting that the lawsuit filed by Moloney and McIntyre against Attorney General Eric Holder need not be discussed; rather, they argued, the court only needed to validate the decision of the district court to refuse Moloney and McIntyre the right to intervene in an earlier case involving the subpoenas. "Resolution of the question of whether denial of intervention was proper is dispositive of this consolidated appeal," they wrote.

But Chief Judge Sandra Lynch forced open the frame, rejecting the government's efforts to have a limited discussion. "Miss Smith," she said, "it would help me if you would actually frame your argument not in terms of the intervention, but in terms of the original action that these individuals brought. Because it does not necessarily follow from non-intervention that they didn't have a right to file their own action."  

Two minutes into her argument, Smith had her first hint of possible defeat: The court thought it "did not necessarily follow" that the resolution of the intervention was dispositive.

And so, Lynch continued, "that then leaves the constitutional claims," which she asked Smith to address, putting aside the question of standing. "What are your arguments under the First Amendment, here?"

Smith responded that there "is not a recognized privilege that would protect someone from giving evidence absent a strong countervailing interest -- constitutional, common-law, or statutory privilege."

Then she tried to pivot, shifting the argument away from the people in the courtroom: If anyone in the matter has a First Amendment interest at stake, Smith argued, it would be Boston College. In other words, this isn't the time for this discussion, and let's skip the First Amendment stuff for now, but go ahead and ask me again when Boston College is here in June to argue its own appeal of another order from the district court.

It didn't work, and Lynch quickly cut her off. "Frankly, that seems to go to the standing issue, as opposed to the merits of the First Amendment claim. It may be primarily Boston College's claim. But they [Moloney and McIntyre] claim they will also be injured under both the First and Fifth Amendment."

Smith tried to shift the discussion again, saying that Moloney's affidavit to the trial court had not offered a detailed description of the chilling effect on research that the subpoenas would have. So again, Smith -- who had opened with a statement about the narrowness of the issues at hand -- was trying to push aside a set of legal topics she didn't wish to address: It isn't in the affidavits, so let's skip this part.

Lynch, who had sounded carefully bored throughout the discussion, briefly adopted a sharper tone. "I asked you to make some assumptions arguendo, and then get to -- please... Assume they have a sufficient interest in this action to raise the constitutional claims. Just hypothetically assume that. What is your response as to why there are no constitutional claims that can be plausibly stated here."

Long silence. Then, from Smith: "Well, because there is not one that would override the purpose underlying a treaty between two sovereign nations."

Our treaty trumps your Constitution.

"It Might be Genocide"

And then came Boudin's questions about whether "there must be some way" to protect a researcher's constitutional rights, "regardless of what the treaty said." By this point, it was clear in the courtroom that Smith was on the dark side of Planet Success, and she did what government lawyers do when they're in trouble: She tried to dire things up a bit, saying that "this is a murder investigation, but it might be terrorism, it might be genocide, and to say that could be protected merely by a criminal confessing to an academic in an oral history project, the world will never get that evidence, and..."

She didn't get to finish, because a judge cut her off, but note the maneuver, here: In case of fire, pull genocide reference. But your honor, are you trying to create a category of legal privilege for the Holocaust!?!?

In any event, Smith had also invented her own reality: In the case of terrorism or genocide, as in the murder investigation at hand, the confession to academics doesn't mean "the world will never get that evidence." The evidence doesn't vanish into a vault; just a copy of it does. It still exists in the world where the academic researchers found it. The point is that government, rather than getting the evidence from the academics, can go get the evidence from the source. They can investigate, rather than borrowing an investigation from someone else.

Finally, again from Lynch, came the really crucial question, and academic researchers, watch this one closely: "Are you arguing then that there is a per se rule that it is never, when it involves a criminal prosecution, there is never any possibility of an academic privilege? ...It's not clear to me whether you are arguing that there is an automatic rule that the First Amendment can never trump a criminal prosecution, or whether you are saying in most cases a criminal prosecution is a sufficiently legitimate government interest to override any First Amendment claim being made." 

Bright flashing lights, here. Look closely at that question, and remember that this exchange will result in case law.

Smith's answer: "We're certainly saying that here there was nothing that could trump that, and also saying that in most cases it wouldn't. I can't think of where it would."

"There's Not a Privilege to Your Safety?"
Then Judge Juan Torruella got his turn to direct a few exasperated sounds at Smith, asking why the language of Rule 24 wasn't helpful to Moloney and McIntyre. Because, Smith said, they don't have "a recognized privilege" in the matter.

"There's not a privilege to your safety?" Torruella asked. A better writer could convey his tone of voice, but let's just say he didn't seem to be buying it.

And then Lynch noted that she had looked at the cases the government had cited in its brief, "and it seems to me almost all of them apply in the immigration context and have to do with plenary congressional power over who enters the country. This case is a little bit different. I found no case that established the sort of absolute rule that your briefing suggested the case law established."

Struggling to recover the narrow frame she wished to place around the case, Smith closed the insistence that, "under the MLAT, there's a very narrow inquiry."

Lynch sounded patient in the way a grade school teacher struggles for that effect at the end of a playground fight between children: "We're not under the MLAT. We're under the federal Constitution."

Then, with the court having refused her framing -- and with a judge telling her that the case law she cited doesn't support the argument she made -- Smith sat back down. As the court concluded the hearing, a cluster of lawyers and reporters gathered around Moloney, Dornan, and Twomey, who were all unmistakably pleased by the whole thing. They all spilled out into the hallway, then hung out in the hallway a bit, then went downstairs and took questions.

I looked around to see the demeanor of the lawyers from the U.S. Attorney's office and Boston College, but their demeanor was not in evidence: They were gone as soon as the gavel fell. They sat on the same side and hustled away as a unit, grouped at the beginning and linked at the end.



(*Contestulation: The blurry ground between contesting and capitulating. A useful word for observers of Boston College. In the contestulational paradigm, the word "quash" takes on a new meaning, as in, "We'll quash those interviews right over to the courthouse, your honor.")

Monday, April 2, 2012

Hot Pursuit

I accuse you of murder! And I will not rest until I bring you to justice! But, anyway, you're free to leave. No big deal.


On Wednesday, federal prosecutors will walk into an appellate court in Boston and tell a panel of judges that they are seeking evidence in an exceptionally serious crime, the murder of a widowed mother of ten who was taken from her home in Belfast and shot in the back of the head by members of the Provisional IRA. Because they are aiding police officials in the United Kingdom with such an important investigation, they will sound a note of urgency: The matter before the courts must be brought to a conclusion, because murderers must be brought to justice.

They will be full of shit.

There was a murder, and it was awful. A widowed mother was killed, and ten children were left with no parents. But is there a murder investigation underway? Is the Police Service of Northern Ireland working to bring killers to justice?

I've said before that you should start thinking about this claim from the moment in 1972 when McConville was taken from her home to be killed. What then? Nothing much. The police have acknowledged that they didn't try to solve her murder until the 1990s, and even then they didn't try especially hard, and then finally they admitted that they probably weren't going to make a case in such an old murder that would survive in a courtroom. Now it's 2012, and there's somehow a serious criminal investigation underway.

But this time, let's start the story somewhere else: February 21, 2010. That's the date a newspaper in Northern Ireland printed a story alleging that former IRA member Dolours Price -- as the paper soberly put it, a "TERRORIST IN A MINI-SKIRT" -- had admitted that she drove McConville to her death. Not only that, added the Sunday Life, but she was known to have told the story to researchers at "Boston University," which is a solid fifty percent correct. (The story isn't online at the newspaper's website, but you can see page scans here.)

And so the Police Service of Northern Ireland, alerted to the confession of an accomplice to murder, came roaring to life and began their desperate quest to win justice in the case of Jean McConville. Game on -- justice was awake and on the hunt. The first set of interviews Boston College will potentially give up to the government when the legal appeals are over are the interviews conducted with Dolours Price. Her newspaper confession is bringing the day of legal reckoning ever closer. The newly tireless detectives have almost got their target.

There are just a few problems with that picture, and start with the fact that the Sunday Life story ran more than a year before anyone got around to asking for subpoenas of the Boston College material. Think about this: A newspaper said on February 21, 2010, that a particular person had driven a murder victim to her death, and that there was more information available in a university archive. The first subpoenas arrived at the university archive in May, 2011. You can almost taste the urgency.

Better yet: In August, 2010 -- several months after the Sunday Life story named her as an accomplice in Jean McConville's murder -- Dolours Price was in a courtroom in Northern Ireland, facing criminal charges. Here's the story on the BBC website. Having confessed to her role in the McConville murder in a published interview, causing the police in Northern Ireland to lock onto her with their laser focus and their passion for justice, Price found herself in the hands of the criminal justice system in the very place where she was known for her role in an infamous political killing. They had her, in the flesh, the IRA terrorist who named Gerry Adams as her commander in a murder she had directly facilitated.

So go read the BBC story. What happened when the woman who drove Jean McConville to her death appeared in a courtroom in Northern Ireland? This: "Convicted Old Bailey bomber Dolours Price has been acquitted of a charge of shoplifting at Newry Magistrates Court." The end. Terrorist in a mini-skirt!

Months after the Sunday Life story identified Price's role in McConville's death, nobody in the criminal justice system in Northern Ireland cared or tried to do anything about it. She went and stood in a courtroom, and no one mentioned the whole "murder of a widowed mother of ten at Gerry Adams' command" thing. They yawned at her shoplifting charge and sent her home. Because they were so aggressively pursuing it, you see.

In its amicus brief in the legal appeal, the ACLU of Massachusetts charged that the DOJ was facilitating a political investigation, a course that could lead the United States government into ever-more-horrible involvement in appalling political repression overseas. When a foreign government asks for help gathering evidence against political organizations like the IRA, the U.S. government should think carefully about what they're being asked to do, and the courts should take a close look at the decisions the Justice Department makes.

Here, again, is the government's most recent brief in the Belfast Project appeal. Look at pg. 57, and let's go ahead and add emphasis to make this easy:
Finally, nowhere in ACLUM’s argument is there a recognition that a request by a foreign sovereign under a treaty regarding a sensitive and confidential criminal matter is any different than a civil request by a private party in a mundane business matter. ACLUM’s argument, if taken to its logical conclusion, would subject even the most sensitive and urgent law enforcement requests to litigation and delay by persons with a deeply felt, but tangential interest in such a criminal investigation. Under ACLUM’s reading of §3512, criminal defendants in foreign countries, and others who disagree with the foreign policies of the United States, could tie sensitive and urgent international criminal investigations in legal knots. 
There is no "sensitive and urgent" criminal investigation. The police in Northern Ireland have had forty years to investigate Jean McConville's murder, and they have not. They had several months between the publication of a story saying that Dolours Price had driven McConville to her death and the moment when she stood in a courtroom and was available for an easy arrest. They had a year to get around to asking for subpoenas of the Boston College interviews.

Someone needs to apply some skepticism to the government's framing of these subpoenas. Let's hope the First Circuit manages the task.

Thursday, March 29, 2012

Moral Authority

Among the names added to the Belfast Project petition from the Boston College chapter of the AAUP: Rik Scarce, John Lowman, and Jeff Sluka. These are people whose opinion about research confidentiality can't be ignored, and it's great news that they signed.

Monday, March 26, 2012


Legal blogger Ted Folkman comments on Senator Schumer's letter regarding the Boston College subpoenas.

Saturday, March 24, 2012

Boston College Faculty Call for an Investigation

(Boston College Sleeps Through the Whole Thing)

An online petition created by the Boston College chapter of the AAUP gives you a chance to join their call for an independent investigation of the Belfast Project.

The petition also gives outsiders a window onto the institutional culture of the university: The chapter took a unanimous vote, on Feb. 27, to ask President William P. Leahy and the board of trustees for an investigation, but they decided to seek wider support when the president and the trustees didn't bother to respond to their letter.

Letter from the faculty? Ah, just toss it into the round file. What's for lunch?

The place is run like a duchy. That's why bad decisions aren't debated and corrected. It isn't working.

Friday, March 23, 2012

The People Who Ratified the US-UK MLAT Think the DOJ Is Wrong About What the Treaty Means

At the bottom of this post, a strong letter sent yesterday by Senator Charles Schumer to Secretary of State Hillary Clinton and Attorney General Eric "La La La I Can't Hear You" Holder regarding the Belfast Project subpoenas served on Boston College. Schumer makes his position plain, asking Clinton and Holder to "work with the British authorities to have this MLAT request withdrawn." Read the whole thing, but one paragraph in particular wages a direct assault on the arguments made in court by the U.S. Attorney's Office for the District of Massachusetts:
During the ratification of this treaty we in the United States Senate made clear that provisions of this treaty, and other[s] with the UK, should not be invoked pursuant to political goals related to Northern Ireland. In particular, the Senate resolution that accompanied the ratification of the extradition treaty in 2007 states that, "The Senate understand that the purpose of the treaty is to strengthen law enforcement cooperation between the United States and the [U]nited Kingdom by modernizing the extradition process for all serious offenses and that the treaty is not intended to reopen issues addressed in the Belfast Agreement, or to impede any further efforts to resolve conflicts in Northern Ireland.
Schumer has framed the question widely, addressing his concerns about the mutual legal assistance treaty between the US and the UK with a quote from the Senate resolution regarding a different treaty. But his argument is still specifically sound: A few years ago, the Senate ratified a treaty between these two nations regarding a matter of international cooperation in internal criminal justice matters. Doing so, they make explicit their intent to keep "issues addressed in the Belfast Agreement" -- like the past activities of paramilitaries that fought during the Troubles in Northern Ireland -- out of the bucket of things for which the treaty would assure police cooperation. So why would the same United States Senate ratify a different treaty, just a few years earlier, with an entirely different intent?

Bottom line: Treaties assuring criminal justice cooperation between the US and the UK were not created to assure cooperation in legal efforts to relitigate the political conflict in Northern Ireland. Here it is from a member of the Senate -- that is, from another one of the political officials who participated in the vote to accept this treaty on behalf of the United States government and give it legal weight. The PSNI, and the DOJ, are using a treaty to do something it wasn't supposed to do. Period. This claim can no longer be said, with anything approaching honesty, to be in dispute.

So let's revisit the amicus brief filed in the same appellate case by the ACLU of Massachusetts, and the government brief in the case filed last week with the First Circuit. Look at pg. 7 of the amicus brief: The ACLUM argues that a deferential approach to requests for mutual legal assistance, accompanied by the DOJ's "desired straightjacket on judicial review," threatens to turn US law enforcement into a political arm of foreign governments. See their list of examples for more, but the point is that reflexive and unchecked international legal cooperation opens the door to the policing of dissent: Sure, we'll hunt down that information on your dissidents.

This unexamined governmental willingness to serve the political agendas of foreign governments is precisely the topic at hand in the matter of the Boston College subpoenas: The UK made peace with the IRA, closing a long civil war, but is now quite transparently fishing for evidence it can use to damage longtime political enemies of the British state. A long-ignored 1972 murder is suddenly an urgent law enforcement matter, but, hey, there's nothing fishy about that sudden urgency, trust us, when can we have these documents?

The government responds to the ACLUM's argument by not responding, really, except to cough and make a carefully narrow set of legal claims. But here's the most plainly germane piece: In the government's brief, look at footnote 32, which begins on pg. 56 (of the brief, which is pg. 68 of the PDF file). The DOJ is sure that the "thrust of the legislative history" is that Congress never meant to "graft" a standard of "wide discretion (and resulting inefficiencies)" on MLAT requests. They just meant for you to shut up, your honor, and give us the stuff, no questions asked.

They're wrong, and Schumer's letter proves it. Here's the "thrust of legislative history" from a senior legislator. The DOJ is using a treaty to do something it was not meant to do. They are shamefully abusing the intent of an international agreement, and they should be stopped.

Monday, March 19, 2012

"The Government Urges an Argument Which Has No Constitutional, Statutory or Common Law Basis"

Below, a brief filed with the First Circuit today by the lawyers for Belfast Project researchers Ed Moloney and Anthony McIntyre, replying to the brief filed last week by the government.

(ADDED LATER: Lawyer and legal blogger Ted Folkman also weighs in on the reply brief.)
Dornan Cotter Reply March 19

Sunday, March 18, 2012

Turning Away

At the New York Times, a story that suggests the increasing hollowness of our highly notional self-governance: "Democratic Senators Issue Strong Warning About Use of the Patriot Act."

The story describes "a top-secret intelligence operation" -- apparently a domestic intelligence operation -- that is based on a "secret legal theory." How on earth do we self-govern in the face of secret legal theories? What can there be a social contract, or a government built on the consent of the governed, if the structure and boundaries of the law are discovered by government through hidden processes?

Senators Ron Wyden and Mark Udall "also said that Americans would be 'stunned” to know what the government thought the Patriot Act allowed it to do." But we'll have to go on being pre-stunned, because we're not going to be allowed to know the thing that would stun us.

But here's my bet: If the government made its "secret legal theory" public, Americans would mostly not be stunned. Certainly not many people at the New York Times would notice.

Friday, March 16, 2012

An Aside

I warn you in advance: I'm mostly repeating myself, here, on a matter of personal concern that you will only want to know about if you're closely interested in the saga of the Boston College subpoenas. If that's not you, then here, watch this soothing music video instead:

Okay, still reading? Then here we go. Remember how Boston College spokesdork Jack Dunn keeps spitballing bullshit descriptions of the Belfast Project's inception, particularly trying to muddy the waters with regard to the crucial matter of the contractual warnings interviewees got about the legal limits of confidentiality?

Here's the thing about that: No one on earth is stupid enough to believe anything this dude says. I mention this again because we have a new example in the government's latest appellate filing, delivered to the First Circuit this week with the steam still rising from it. Like everyone else, the government's lawyers know who signed the contracts with Belfast Project interviewees, and they know what was in those contracts. Look at pg. 53 of the government's brief (which is pg. 65 of the PDF file):

"First, Boston College was party to the principal agreement with Moloney that included the terms of confidentiality that applied to the interviews, and Boston College, through the Burns Librarian, not appellants, signed the donation agreements with the interviewees. It was Boston College, not appellants, that had custody of and title to the subpoenaed materials."

The government is fudging, there, by not mentioning the language of the donation agreements, but they know perfectly well what happened at the start of the project: The Burns Librarian signed contracts with the Belfast Project interviewees. (Which is actually kind of a shame, because if the contract was directly between Moloney or McIntyre and the interviewees, the researchers would probably have an easier time fighting the subpoenas in court.)

Anyway, pg. 6 of the brief (pg. 18 of the PDF file): "There were no separate written agreements between Moloney or McIntyre and the interviewees."

Pg. 35 of the brief (pg. 47 of the PDF file), with citations omitted and emphasis added: "That agreement, Moloney’s agreement with McIntyre, and the 'Agreement for Donation' between the interviewees and Boston College provided that all transcripts and recordings of interviews would be transferred to Boston College. Moloney is not the custodian of the materials. He was an agent of Boston College at the time he participated in the Belfast Project, an association that ended in 2006...Moreover, disclosure of information by Boston College in compliance with the subpoena and court orders does not violate Moloney’s duty of confidentiality. He has no independent rights or obligations under the agreements between Boston College and the interviewees, which were executed by the Burns Librarian at Boston College, and through which 'absolute title' to the recordings and transcripts was assigned to the Trustees of Boston College."

So, again, here's Jack Dunn in late January, describing the inception and organization of the Belfast Project: "From the very beginning of this project, which was conceived by Ed Moloney -- he approached Boston College with the idea to record conversations with former paramilitaries from the IRA and the UVF, and he asked if we would be interested in being a repository of these materials. Boston College is America's leading institution on Irish studies, Irish history, Irish literature. We agreed to add it to our extensive holdings as one more example of something that could be used as a resource for future historians, for journalists, etc., regarding the Troubles."

This is, I never tire of saying, a string of recklessly untenable lies. Boston College was in from the opening bell. The Burns Librarian, Robert K. O'Neill, signed donation agreements with Belfast Project interviewees. Ed Moloney and Anthony McIntyre had no involvement in the creation of those agreements, which were not agreements between them and their interviewees; they were agreements between the interviewees and Boston College, full stop.

Those donor agreements, and any failures in their language and form, belong to Boston College. As the latest evidence reminds us, no one doubts it.

Thursday, March 15, 2012

Get a Fucking Room, You Two


So Pretty Much a Tongue Bath, Then

Judging from coverage like this, I'm guessing Obama and Cameron didn't have a whole lot of tough private discussion about the appropriate limits on post-9/11 legal cooperation. Christopher Tappin and Dolours Price would not seem to have been on the menu.

Wednesday, March 14, 2012

Mutual Lapdog Syndrome

In Washington today, British Prime Minister David Cameron meets with President Barack Obama to do who knows what. Irish-American groups have demanded that Obama discuss the Boston College subpoenas with Cameron, while Cameron has come under similar pressure to discuss the extradition of British businessman Christopher Tappin.

It's time for the pendulum to swing back toward individual rights in the post-9/11 international legal order. We'll see if the political class notices.

Tuesday, March 13, 2012

Howlers (Final)

(Part one is here; part two is here.)

About the origins of the Boston College subpoenas: The PSNI's "murder investigation" isn't a murder investigation. Period, full stop. No police investigator ever cared especially much about Jean McConville's 1972 murder until 2011. This is an acknowledged fact. Nor is the PSNI now conducting an investigation; rather, it is attempting to borrow someone else's. This attempt to take archival materials is not police work, and is unlikely to result in successful prosecutions. Don't take my word for it: Go see what the PSNI's chief constable said six years ago.

Remember that the ACLU of Massachusetts nailed just this point in their amicus brief: "The PSNI/RUC’s self-inflicted wound, their sorry record of non-performance over more than 40 years, does not justify an invasion of academic freedom and the likely destruction of much of this valuable historic research. Academic freedom should not pay the price for the constable’s incompetence."

So how does the government's novella address the undisputed fact of police indifference and incompetence over the course of forty years? With a solemnly obtuse determination to not notice.

Page 16 (of the PDF file; pg. 4 of the brief): "The application was prompted by a formal request from the U.K. for legal assistance in a criminal investigation pending in that country, involving kidnaping and murder, among other serious crimes, made pursuant to the US-UK MLAT."

Or try page 69 (pg. 57 of the brief): "Finally, nowhere in ACLUM’s argument is there a recognition that a request by a foreign sovereign under a treaty regarding a sensitive and confidential criminal matter is any different than a civil request by a private party in a mundane business matter. ACLUM’s argument, if taken to its logical conclusion, would subject even the most sensitive and urgent law enforcement requests to litigation and delay by persons with a deeply felt, but tangential interest in such a criminal investigation. Under ACLUM’s reading of §3512, criminal defendants in foreign countries, and others who disagree with the foreign policies of the United States, could tie sensitive and urgent international criminal investigations in legal knots."

A sensitive and confidential criminal matter! The most sensitive and urgent law enforcement requests! Sensitive and urgent international criminal investigations!

That were ignored for forty years. The DOJ has never addressed this point, as far as I can remember. They have always struck the same posture, just as if they were standing right over a still-warm body: Murder! Murder! Urgent!

Stick a pin in this one, because I offer a wager on the future. I think that "nowhere in ACLUM’s argument is there a recognition that a request by a foreign sovereign under a treaty regarding a sensitive and confidential criminal matter is any different than a civil request by a private party" because the PSNI's request is, in fact, a civil request by a private party hiding behind the mask of the state. My bet is that the archival materials the PSNI gets from Boston College will only end up as evidence in a lawsuit filed by Jean McConville's family against Gerry Adams.

And I would also bet that everyone involved already knows that. Including the federal government's lawyers in Boston, who nonetheless go on pretending that they are parties to a quite ordinary (and not-at-all-political) criminal investigation.

Just remember the point, because time will tell. And let us have some accountability when that moment comes.

Howlers (Part Two)

or, But We Don't Want Our Power to be Limited

(Part One is here.)

As I've argued before, the DOJ's view of legal assistance treaties means that we have fewer protections against foreign governments than we do against our own. The new novella from the government again makes this argument explicit, using breathtaking language with all the customary flat affect of the bureaucratic scrivener. Time to rewrite that stupid Fourth Amendment thingie: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but unless the British say so.

Even better that this case is being litigated in Boston.

In the novella, look at pages 60 and 61 (of the PDF file; pp. 48-49 of the brief). First, the government approvingly notes a decision from another court: "The Eleventh Circuit concluded that district courts should not evaluate MLAT subpoenas under the standards applicable to domestic subpoenas or under the law pertaining to civil requests under 28 U.S.C. §1782." Then, in a footnote:

"In a similar vein, if modern MLATs incorporated by reference all of the substantive discretion available to review subpoenas under 28 U.S.C. §1782, and required a district court to test a subpoena under the standards set forth in Intel, it would defeat the very purpose of the MLAT. As noted above, the primary aim of these treaties was to limit judicial discretion and related litigation, and to speed compliance with foreign requests in criminal cases."

Case closed: The United States government argues explicitly that it has acted with the intent of creating a class of subpoenas for which there is no "substantive discretion" for review. The primary aim of federal action was to serve the convenience of foreign governments at the expense of our access to the courts.

Howlers (Part One)

The government has filed its brief novella in the legal appeal by Belfast Project researchers Ed Moloney and Anthony McIntyre. Ted Folkman has already posted his legal analysis, noting some things along the way that surprised him: "Most boldly, the government goes for it and argues that there simply is no First Amendment academic’s privilege."

Of course, the government is quite boldly going for it in arguments against the First Amendment all the time, these days, so I take that boldness as part and parcel of a larger assault on civil society. In 2012, the pattern is well established: Yes, government is going to boldly go for it and argue against our First Amendment "privileges." (See also.)

In any case, my plan was to read the government's brief this morning and then write a long post about it. But the government destroyed my plans with the raw power of their comedy gold, and now I'm just going to start posting as I go through the awful thing. The government's novella is below, if you feel like tasting your own bile. While laughing! It's sort of a repulsive comedy effect, and someone should add the U.S. Attorney's Office for the District of Massachusetts to this page. They've earned it.

Start with this great piece of narrative juxtaposition, from pg. 25 (of the PDF file, which is numbered as pg. 13 in the brief). First, the government's novella concludes a paragraph with the argument that Moloney and McIntyre shouldn't be permitted to intervene: "Their interests were fully and forcefully advanced by Boston College." So the researchers shouldn't be allowed to participate in any effort against the subpoenas, because BC is already waging the whole fight -- the university is "fully and forcefully" contesting any issues that its researchers could possibly raise.

Very next sentence, starting the following paragraph, with emphasis added: "The district court’s proper denial of appellants’ motion to intervene forecloses review of the merits of the court’s ruling on the motion to quash, as neither Boston College nor the government appealed that ruling."

So BC's interests are the interests of its researchers; there can be no sunlight between them, because BC is "fully and forcefully" fighting out all the issues the researchers might raise. And, anyway, why are we still talking about this stuff the researchers keep bringing up -- doesn't the court realize that BC already gave up on this part?

Boston College is fully and forcefully advancing the interests of its researchers by not appealing the ruling the researchers wish to appeal. Back to back sentences. Not the first time I've wondered: Does the government require that its lawyers be willfully obtuse as a condition of hiring, or is it something they learn on the job?

Much more throughout the day, as time permits.
Govt Brief 11-2511

Saturday, March 10, 2012

Because They Are Icky, Your Honor

Boston College has filed a docketing statement -- two days after the court's deadline, 'cause they're right on top of this one -- in its Belfast Project appeal (see below, if you have lots of time on your hands). The sad thing here is that the First Circuit's docketing statement form is a total snooze -- compare it to the form from the Ninth Circuit, which requires a brief description of the "Principal Issues to be Raised on Appeal." Clearly, the First Circuit is not thinking about my needs.

But there's one very mildly interesting addition, a "supplemental" declaration typed on a separate page and stuck into the middle of the court's form: "Appeals from the denial of a motion to intervene in this action, and from a separate action relating to the same subject matter that was dismissed, are pending in this Court in Nos. 11-2511 and 12-1159 (consolidated as No. 11-2511). No abeyance of any of the appeals or consolidation is warranted."

Translation: Don't lump us in with those fuckers, 'cause we wanna go this one alone.

Those other two appeals, 11-2511 and 12-1159, were filed by BC's Belfast Project researchers. The trial court denied their request to intervene in the case between BC and the government, and did so on the premise that BC adequately represents the interests of its own researchers -- precisely the people BC wants to keep at arm's length. We represent your interests, and we're on your side, and we don't want to be in court with you, and we don't want anything to do with your appeals.

No contradictions or tensions in there at all.
Bc Docketing Statement

Friday, March 9, 2012

Gov't to Judge: This is Gonna Be a Little Harder Than We Thought

Several developments in the legal appeals over the subpoenas of Belfast Project interviews at Boston College:

First, the U.S. Attorney's Office in Boston has asked the First Circuit for an extra business day to submit its response to a pair of appeals filed by Belfast Project researchers Anthony McIntyre and Ed Moloney, and to the amicus brief filed by the ACLU of Massachusetts. The government's brief is below, but here's the most important piece:
The arguments in these appeals raise a number of issues of first impression regarding the rights of third parties to intervene in or otherwise effect proceedings under the MLAT. In addition, because the appeals implicate an international treaty as well as issues of domestic civil and criminal law, a number of departments of the United States have requested that they be allowed to review and comment on the government’s brief. A draft of the brief has been completed. In order to allow sufficient time for the brief to be reviewed and reviewer comments to be incorporated into the draft, however, the government requests that its deadline be extended by one business day.
In a single paragraph, the DOJ conveys the exceptional importance of the aggressive legal effort from Moloney and McIntyre. With Boston College making no more than limp and polite gestures at challenging these subpoenas, a pair of independent researchers chose to go it alone -- aided by capable lawyers, and now joined by the ACLUM -- and to fight like hell. The U.S. Attorney's Office never broke a sweat working against BC's sad efforts, but now it faces a legal battle over "a number of matters of first impression" that demand the immediate attention of "a number of departments" of the federal government. These appeals will make case law that will define the relationship between researchers and the government for decades to come. Academic news media, get off your asses and pay attention.

Here's the brief:

Govt Motion to Extend Time to File

Meanwhile, Boston College wages its own halfhearted appeal over a limited portion of the contested subpoenas. On April 4, BC's lawyers will be in the federal courthouse in Boston at the same time as McIntyre and Moloney's lawyers. But they won't be in the same room: While lawyers present oral argument in the researchers' appeal, BC will be down the hall in a mandatory pre-trial settlement conference with the government:

Settlement Conf

When BC filed its appeal, there was some speculation that their case would be consolidated with the appeals filed by the Belfast Project researchers. The scheduling of these two events on the same day shows that no consolidation is possible. BC and its researchers will undertake wholly distinct efforts. Given the uselessness of BC's half-assed and sadly limited appeal, that's for the best.


An update, from the federal court's case management website:

"ORDER entered by Sandra L. Lynch, Chief Appellate Judge: The Government's motion for extension of time to March 12, 2012 to file its brief is allowed. The deadline for filing Appellant's reply brief is extended to March 19, 2012. No further extension of these deadlines will be allowed. The Government's request for leave to file an oversized brief not to exceed 15,000 words is also allowed. The Government is directed to 1st Cir. R. 32.4, which requires that motions to file oversized briefs be made at least ten calendar days in advance of the deadline for filing the brief. In the future, the court expects that any such motions will be made in a timely fashion."