DOJ on Boston College: Academic Freedom a Legally Meaningless "Quasi-Privilege"
On Friday, the Department of Justice filed its response to the motion by Boston College to quash a federal subpoena for confidential oral history materials related to Northern Irish paramilitary violence. The government's response is unmistakably aggressive in tone and in scope. Read the brief here. The most remarkable claims, with emphasis added:
- In its Mutual Legal Assistance Treaty with the United Kingdom, the federal government has traded away the role of the courts, leaving discretion only in the hands of the executive branch: "Notably, the US-UK MLAT reserves the authority [to] decline a MLAT request, or to limit its scope, to the Attorney General, not the courts" (pg. 8). Under the terms of the treaty, an assistant U.S. attorney is acting as a "commissioner" to make a determination regarding the validity of the request and to act upon it (pg. 3). Federal law "does not vest the U.S. courts with discretion to evaluate MLAT requests where none exists under the applicable treaty" (pg. 9). Federal case law reflects "the narrow scope of the Court’s discretion in this case," concluding "that district courts should not evaluate MLAT subpoenas under the standards applicable to domestic subpoenas" (11-12). Furthermore, the courts may not evaluate the political implications of information sought by a foreign government under the terms of an MLAT. "This is precisely the type of assessment left to the Central Authority of the United States, here the Attorney General, and the Central Authority in the UK" (pg. 19, and pg. 2). In short, the federal government has granted the British government a mechanism to obtain what are effectively writs of assistance, subject to mandatory execution and beyond review or protest. This is an ironic historical development.
- Academic freedom is a legally meaningless “quasi-privilege," and BC's attempt to apply protected status to academic research makes "no claim of a cognizable federal privilege" (pp. 10-13, with quotes from the beginning and end). Academic researchers have fewer protections against compulsory disclosure than journalists, since "the courts have long recognized the unique role which news reporters play in our constitutional system." In contrast, "[t]he limited protections afforded news reporters in the context of a grand jury subpoena should be greater than those to be afforded academics engaged in the collection of oral history" (pg. 14). Journalism is a protected activity; academic research is not.
- While the courts have no discretion in considering subpoenas issued pursuant to MLATs, the executive branch doesn't have much, either: "In this case, the US-UK MLAT requires that, 'the Requested Party shall take whatever steps it deems necessary to give effect to requests received from the Requesting Party'...Under the US-UK MLAT, the United States is obligated to obtain the documentary evidence requested in this instance and provide it to the authorities in the UK" (pp. 6-7; emphasis in original).
So when foreign governments that have entered into MLATs with the United States wish to demand access to confidential academic research materials, the executive branch is compelled by treaty obligations to say yes, the courts have no discretion to say no, and "academic freedom" is a meaningless claim.
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