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.

Elsewhere

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

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.

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makes his position plain, asking Clinton and Holder to "work with the British authorities to have this MLAT request withdrawn."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.
schumerMLATbostoncollege

"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

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.

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.

Get a Fucking Room, You Two

Disgusting.

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.

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.

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

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

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.

ADDED LATER:

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."

War Like Sunrise, Daily and Inevitable

Walking down Wilshire Boulevard tonight, I passed a bank of television screens inside a stockbroker's office. Erin Burnett's face was on one of the screens, over a caption describing American discussions about a war with the Syrian regime. (The CNN website still just carries a teaser for the show: "OutFront tonight: could the U.S. get involved in Syria? Erin breaks it down.") The very last time I looked up and saw Erin Burnett's face on a television screen, it was making its serious journalist expression -- kind of furrowed and squinty, like she has sand in her eyes -- over a caption about the possibility of an American war with Iran. CNN should just rotate through the whole globe with the same script: Tonight on CNN: Tuvalu stands defiant! Will America strike? Erin Burnett breaks it down.

The United States has now been at war for more than a decade, and is looking for new ones to start, but the public discussion about our smooth transition to apparently eternal war is as quiet and uncluttered as -- well, as our smooth transition to apparently eternal war. Even granting that Erin Burnett is a special case, we still discuss each new target in isolation, as a discrete set of questions about, for example, whether or not Iran will be a naughty boy and cross a red line that will force us to strike.

Not discussed: The human costs and political consequences of endless war. The implications of strategic failure inherent in the absence of resolution for existing wars and effective deterrence to avoid future ones. The domestic implications of endless war, given that the attorney general thinks it's just fine to kill U.S. citizens without due process if he does lots of paperwork and furrows his brow first. And the likelihood of ultimate military weakness, by the way, as the nation bankrupts itself and exhausts its armed forces.

Journalists don't seem to notice that these are questions they might want to ask. Large portions of the political right don't think they're questions that anyone should ask, although there's an exceptionally important exception. And American liberals think it's very very very bad for George Bush to wage war, zomfg Obama RULES!!!!!

Note that there are credible, serious critics of the American way of war. Some of them -- some of the best of them -- are military officers. At West Point, Col. Gian Gentile is a critic who shares a home with some other thoughtful critics. Elsewhere, Lt. Col. Daniel Davis recently wrote a long report accusing military leaders of lying about American military progress in Afghanistan. There's certainly an active debate over the quality and importance of their criticism, but they exist! They speak! How central are their questions and criticisms in anything you read in the news?

Because We Said So

Just the right amount of derision in an analysis of Attorney General Eric Holder's dreadful speech on why the government gets to kill American citizens without the niceties of due process.

The Worst Public Agency in America

This guy is my hero, this morning:

Policing Peaceful Assemblies of Free People in a Constitutional Republic

At The Agitator, the blog of the indispensable Radley Balko, photos of Virginia police monitoring a peaceful protest at the state capitol. It will only take a few seconds: go look.