Boston College: “No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice.”

The Boston Globe reports on the Court of Appeals for the First Circuit ruling in the PSNI/HET’s attempt to access some of the material in the Boston College Belfast Project archive.  The project director, Ed Moloney, and researcher Anthony McIntyre had been trying to head the US Government off at the pass.  And they’ve already opened another legal front…  From the Boston Globe report

A federal appeals court has upheld a lower court’s ruling ordering Boston College to turn over confidential materials from its Belfast Oral History Project on Northern Ireland, dealing a blow to researchers’ efforts to honor their agreement of secrecy with former IRA members.

The decision by the US Court of Appeals for the First Circuit was released Friday and reinforces subpoenas from the British government that would force BC to release specific papers and inter­views conducted by ­researchers. Two of the academic researchers in the appeal were project director Ed ­Moloney and former Irish ­Republican Army member ­Anthony McIntyre.

BC and the researchers can now seek a rehearing by the court or take the case to the US Supreme Court. A spokesman for BC could not be reached for comment Friday night.

As ever, Boston-based lawyer Ted Folkman has the ruling and promises a full analysis early next week.  Here’s his summary

  • As I predicted, the court rejected Moloney & McIntyre’s arguments under the MLAT, because the treaty gives them no private right of action and because the Attorney General’s actions under the MLAT are not within the courts’ jursidiction.
  • The court rejected Moloney & McIntyre’s claim under the Administrative Procedures Act on the grounds that the MLAT expressly precludes judicial review.
  • The court assumed for the sake of argument that the District Court had discretion to quash the subpoenas but held that it had not abused its discretion, noting that the judge had carefully performed a balancing analysis. This leaves open the question whether, as I have suggested, the district court lacks discretion to quash a subpoena issued under the MLAT.
  • The court rejected Moloney & McIntyre’s constitutional claims. In a small victory for M&M, the court held that they had standing to raise their constitutional arguments. 1 But as I suggested, the court held that on the merits, the Branzburg case controlled.
  • The court quoted Wigmore in support of the basic outcome: “the mere fact that a communication was made in expres confidence … does not create a privilege. … No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice.”

Update  Ted Folkman’s analysis of the ruling is online here.  As he notes

Is this the end of the road for Moloney and McIntyre? Not by a long shot! If there is one argument I do not think they will be able to make when this is all over, it’s that they didn’t get due process from the US courts.

And his subsequent comment is worth quoting too

Ed Moloney has a “glass half full” commentary on the decision at The Broken Elbow. He argues that now that the court has affirmed the decisions approving the subpoenas, the Attorney General and the Secretary of State are free to refuse to continue to provide judicial assistance to the British. Of course, they have been free to refuse to assist the British all along, though perhaps at the cost of causing the United States to violate its obligations under the treaty. But that’s the argument, anyway. He also points out that Judge Toruella, in his concurring opinion, noted that the Troubles were a political conflict, though even Judge Toruella didn’t think that mattered to the outcome of the case.

Moloney and McIntyre have also confirmed my prediction about their next move by stating that they are considering a petition for an en banc hearing.

Chris Bray also has a post up about the new decision.

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