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.