In a brief filed with the federal district court in Boston on August 31 (see below), a new party joined the legal conflict between Boston College and the Department of Justice. The new player sharply changed the tone and substance of the exchange, noting the political nature of the underlying investigation and directly accusing the DOJ of serious professional failures. Two and half months ago, in back-to-back posts at Cliopatria, I wrote that the DOJ was engaged in misfeasance, but that they were rounding the corner toward malfeasance. Now someone has placed a version of that argument before the court, and the results suggest the presence of an internal conflict at BC.

I'll skip most of the background -- see the two links above for that -- but at least some of the recent background is necessary to make sense of the new developments. Since the DOJ (twice) subpoenaed oral history materials archived at BC that relate to the Troubles in Northern Ireland, the university's responses have been distinctly limited and polite, arguing in broad terms for academic freedom but not attacking the purpose of the DOJ's request. But woven in with their restrained and businesslike tone, BC's responses have also had an interesting subtext. As I discussed here last week, a recent brief from BC's lawyer suggested that it would be difficult for the university to respond to subpoenas broadly demanding all oral history materials in their Belfast Project collection that provide information on the murder of Jean McConville, because they would have to go through all the interviews and figure out what's in them, and they would have no idea where to even begin.

Remember that the Belfast Project wasn't directly undertaken by BC faculty. Instead, the interviews in the project were overseen by a longtime journalist, Ed Moloney, and conducted by former members of loyalist and republican paramilitaries in Northern Ireland; interviews with Provisional IRA members were conducted by Anthony McIntyre, a former PIRA member who earned a PhD in history at Queens University Belfast.

So now police in Northern Ireland are seeking oral history material compiled for a project sponsored by an American university but carried out by outsiders, and the American university is signaling that oh yeah, we don't actually know what any of that stuff says. While BC wages a careful and modest courtroom effort without a corresponding political or public relations campaign, the university is also coughing and winking at the court and the DOJ to distance itself from -- well, basically from itself. Boston College is not dug in for war to the knife; they are politely suggesting that the subpoenas be quashed, and claiming no knowledge of the material at stake.

Now. Suddenly, someone has walked into the courtroom without having been summoned there: Moloney and McIntyre, the journalist who oversaw the project and the outside historian who conducted the IRA interviews. Asking leave to intervene in a case that centers on their work product but doesn't formally involve them, Moloney and McIntyre have made an infinitely more aggressive and direct set of arguments than anything BC has managed.

First, the lawyer for the Belfast Project participants argues that the subpoenas in question are meant to serve an inherently political investigation, opening political matters that have had a political settlement. The subpoenas rip open a closed matter, the brief argues, since "the subject matter of the U.K. government’s request involves a politically-related offense committed prior to the Good Friday Agreement."

This claim is the foundation for an insistence that the Belfast Project interviewers had good cause to promise confidentiality to their subjects: "In the execution of this duty, the Intervenors were, and are, entitled to rely on solemn assurances from the Government of the United Kingdom to the United States that politically-related offenses preceding the U.S.-brokered Belfast Agreement of April 10, 1998 (the "Good Friday Agreement") would not be reopened."

Finally, the brief notes, the U.S. Senate approved a Mutual Legal Assistance Treaty between the United States and the United Kingdom on precisely the explicit understanding that the treaty was "not intended to reopen issues addressed in the Belfast agreement."

Now it gets really good, as the brief turns from underlying matters to an analysis of what it all means. Arguing that the DOJ is obligated to evaluate requests made under legal assistance treaties, rather than just acting on them, and to decide before proceeding whether or not a request from a foreign government is legally proper and politically appropriate, the brief filed for Moloney and McIntyre argues that federal prosecutors failed to do their job before they pursued subpoenas for a political investigation undertaken by a foreign government: "The Attorney General failed in these nondiscretionary duties under the US-UK MLAT. Alternatively, if the Attorney General can demonstrate that he engaged in such an Article 18 consultation or Article 3 consideration, his actions in issuing subpoenas in contravention of the clearly expressed sense of Congress was arbitrary, capricious or an abuse of discretion, or otherwise not in accordance with law."

Strong argument, strong language: the attorney general failed in his duties.

So then see this story from yesterday's Boston Globe, and note what a BC spokesman had to say about the intervention of Moloney and McIntyre: "We obviously share the same goal in the outcome of this matter, but these filings, which we are just now reviewing, may not necessarily reflect the views of Boston College."

Feel the warmth.

In one other new development, the assistant U.S. attorney principally responsible for the BC subpoenas has informed the court that he is leaving the case and quitting his job. Under the terms of the U.S.-U.K MLAT, federal prosecutor Todd Braunstein was the commissioner responsible for promulgating the subpoenas. Until and unless he is replaced, no one is carrying the ball for the government. Braunstein filed his notice with the court the day after the lawyer for Moloney and McIntyre entered the case. I'd ask him why he's leaving, but you already know what he'd say. (If you're wondering what my source is for all of this information, I registered months ago for a Pacer account.)

That's where things stand: new participants, new and far more aggressive argument, and a distinct chill radiating from the BC campus. Whatever comes next will be interesting.

Dornan Brief