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Dec 17, 2011

Boston College: Final Post

Or, "The Logical (and Unconstitutional) Conclusion of the Government’s Assertions"

In a decision released on Friday morning (entire document is below; orders are on pg. 48), a federal judge rejected the effort by Boston College to quash subpoenas for confidential oral history materials regarding the Troubles in Northern Ireland. The subpoenaed materials will first go to the court for in camera review, an opportunity for the judge to draw some boundaries around the release of particular portions of the records. But this review seems unlikely to mean very much, for reasons that I'll explain in a few paragraphs.

Start with some cold comfort: During the same week that our morally diseased political class is moving toward the expansion and legal solidification of indefinite military detention, the court said out loud that the executive branch was making an outrageous argument about its own power and its relationship to the judiciary. "This Court is asked to determine what sort of discretion an Article III court has to review or quash a subpoena brought under the authority of the UK-MLAT," Judge William G. Young writes (pp. 1-2). The United States in 2011: We're arguing over whether or not the courts are allowed to review subpoenas, or just have to hand them out when the executive branch says so. Thomas Hutchinson was dignified and restrained in comparison to the governmental creatures of our own moment.

Take a moment to scroll down and look at the long blockquote at the top of pg. 15, which quotes an opinion from the 9th Circuit in another MLAT case; the 9th argued that the executive branch was trying to usurp judicial power, and "convert the judicial branch into a mere functionary." Young finds that the DOJ is up to the same thing again, writing, "this Court wholeheartedly agrees that this is the logical (and unconstitutional) conclusion of the government’s assertions here."

Amazingly enough, the judiciary declines to self-neuter, as if it still wants to be a whole separate branch of government: "This Court holds that a United States District Court has the discretion to review a motion to quash such a subpoena, under the statutory authority conferred by 18 U.S.C. § 3512 and the framework articulated in the UK-MLAT" (pg. 26).

But it's all downhill from there. Most significantly, Young entirely accepts the premise that the subpoenas in question are being pursued as part of a serious criminal investigation, rather than as an act of political theater; nothing in his decision takes note of the fact that the crime being investigated was ignored for forty years by a politicized police agency. See pg. 41, for example (finding that the subpoenas are "relevant to a nonfrivolous criminal inquiry"), or pg. 45: "These are serious allegations and they weigh strongly in favor of disclosing the confidential information."

This acceptance of premises can only have serious effects during Young's in camera review: he does not perceive himself to be examining evidence that is being sought for political reasons and that will have political uses. How many boundaries is he likely to draw?

Young also closes another important door, finding that the courts cannot examine the DOJ's treaty obligation to perform due diligence before executing an MLAT request from a foreign government.  "Unlike the motion to compel, the executive decision that the request is not subject to a specific limitation is not reviewable by this Court," he writes. The DOJ can be all kinds of awful and useless in its consideration of foreign requests, and it's nobody's business but Eric Holder's. The attorney general's diligence is the attorney general's business.

Still, a ray of light shines through one thin opening. Young's decision signals, with flags and banners, that an appeal wouldn't be a bad idea. That's because some issues at hand have never been taken up by the 1st Circuit, the appellate court that includes Massachusetts, and some have never been examined by the courts at all. See the references to matters of "first impression" on pg. 16 and pg. 22.

The likelihood of an appeal, though, depends on a desire to fight on. The unmistakable public silence from Boston College, and the politeness of their arguments before the court, don't inspire much hope. But then, academia as a whole has been almost entirely silent about these subpoenas. That silence, and the indifference it implies, will continue. After all, we're only talking about tearing down the confidentiality of academic research. The mere governments of the world are nowhere near as terrifying and powerful as a real behemoth like the Wisconsin GOP. Academics have a shrewd eye for the really important stuff.

In other news, this will be my last post at Cliopatria. I thank everyone, and especially Ralph Luker, for the years I had a forum here.

Bc Decision

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