Blogs > Cliopatria > Boston College (Cont.): The Inextinguishable Rule of Law*

Dec 6, 2011

Boston College (Cont.): The Inextinguishable Rule of Law*

(*Knock on Wood)

Below, a brief filed in federal court today by lawyers for two of Boston College's Belfast Project researchers, who were responsible for conducting oral history interviews with former members of paramilitary organizations in Northern Ireland. The Department of Justice continues to pursue subpoenas for materials from confidential interviews with former members of the Provisional IRA, acting on a request from the government of the United Kingdom (which almost certainly originated in the PSNI). Most recently, the DOJ had asked a judge to refuse to allow BC's researchers to join the discussion before the court. This new brief continues the argument for that intervention, and is important for the claims it makes about the legal rights of individuals following requests made by foreign governments under the terms of mutual legal assistance treaties (MLATs).

Again, I'm no longer providing detailed background for what has become a very long series of posts, on the assumption that anyone who cares has been following the story for a while. But go back and take another look at the government brief that prompted this reply. The DOJ, I wrote, was arguing for a position that MLATs effectively create "legal proceedings with secret origins, undeclared purposes, and no right to challenge, limit, or appeal them." A foreign government makes a request; the DOJ decides to honor it; the end.

The brief below makes detailed arguments about federal statutes and case law that I won't claim to understand or to analyze. But the heart of the argument is that the DOJ has unreasonably invented a set of legal standards that shield it from scrutiny, and that cannot be found in the treaty that governs the matter: "The US-UK MLAT neither extinguishes the Intervenors’ rights under domestic law, nor permits the Government to circumvent the Federal Rules in its pursuit of a Subpoena."

This argument continues to be important for many reasons, not the least of which is the DOJ's outrageous claims about executive power that cannot be limited or reviewed.

Related, a quick note about another source for information: Letters Blogatory, a legal blog focused on international judicial assistance, has created a page just for updates on the Belfast Project subpoenas.

Today's brief follows.

Dec 5 Intervenor Reply

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