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Published by chrisabray
July 15, 2011 brief filed by Boston College outside counsel in reply to DOJ's argument against BC's motion to quash a federal subpoena.
July 15, 2011 brief filed by Boston College outside counsel in reply to DOJ's argument against BC's motion to quash a federal subpoena.

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Published by: chrisabray on Jul 15, 2011
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07/15/2011

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UNITED STATES DISTRICT COURTDISTRICT OF MASSACHUSETTSIN RE: Request from the United KingdomPursuant to the Treaty Between the Government of the United States of America and the Governmentof the United Kingdom on Mutual Assistance inCriminal Matters in the Matter of Dolours PriceM.B.D. No. 11-MC-91078
MEMORANDUM OF TRUSTEES OF BOSTONCOLLEGE IN REPLYTOGOVERNMENT’S OPPOSITION TOMOTIONTOQUASH SUBPOENASANDIN OPPOSITION TO GOVERNMENT’S MOTION TO COMPEL(LEAVE TOFILE GRANTEDON JULY11, 2011)
Pursuant to leave granted by this Court pursuant to L.R. 112.1 and L.R. 7.1 on July 11,2011, trustees of Boston College, on their own behalf and on behalf of Professor Thomas E.Hachey and Dr. Robert K. O’Neill (collectively, “Boston College”), submit this memorandum inreply to the Government’s Opposition to Motion to Quash and in opposition to the Government’sMotion for an Order to Compel.Boston College regrets, and rejects, the Government’s unfounded assertion on the firstpage of the Government’s Opposition to Motion to Quash (Gov. Opp. at 1) that Boston College’sMotion seeks to “keep this evidence of criminal conduct confidential” and to “conceal evidenceof murder and other crimes until the perpetrators were in their graves.” There is no justificationfor attributing that nefarious intent to Boston College. For one, it is pure speculation that theBelfast Project interviews with Dolours Price contain any such evidence. More importantly,Boston College explained on the first page of its Motion to Quash (B.C. Motion at 1) that thepurpose of its Motion is to obtain this Court’s determination of the proper balance between twoissues of substantial public importance: assistance to what is described to be a foreign criminal
Case 1:11-mc-91078-JLT Document 10 Filed 07/15/11 Page 1 of 9
 
- 2 -investigation of decades-old crimes, on the one hand, and, on the other, the protection of academic research into the causes of the historical violence in Northern Ireland.Boston College submits this Memorandum in Reply to the Government’s Opposition todeal with five issues raised in the Government’s Opposition that Boston College challenges.1. Boston College has not breached any secrecy sought by the Government.To the extent the Government appears to suggest that Boston College has acted in amanner that is contrary to the Government’s desire to keep this matter under seal, the facts do notsupport that assertion. In its Opposition, the Government points out that certain of its filingshave been sealed at the Government’s request and that the United Kingdom requested that thematter be kept under seal (
see
Gov. Opp. at. 2, 3 n.3, and 16-17). However, nothing in thesubpoenas served on Boston College indicated that the subpoenas were under seal or subject toany other requested confidentiality, and nothing instructed Boston College to file its responseunder seal. In fact, prior to filing Boston College’s Opposition on the public record, counsel forthe university consulted with the Assistant United States Attorney to ask whether theGovernment would request that Boston College file its Opposition under seal, and was informedthat the Government made no such request. In addition, the Government itself moved to unsealall the papers in this case except for the original application for the appointment of acommissioner to issue the subpoenas (D. 4). The Government’s motion was allowed on June 1,2011.In a related argument, the Government asserts that publicity regarding the Government’sissuance of the subpoenas, which it attributes to Boston College, belies the university’scontention that it is important to protect the confidentiality of the Dolours Price interviewmaterials that Boston College holds (Gov. Opp. at 16-18). Boston College as an institution hasnot sought such publicity. To the extent particular individuals associated with the Belfast Project
Case 1:11-mc-91078-JLT Document 10 Filed 07/15/11 Page 2 of 9
 
- 3 -have voiced their concerns to the press about the subpoenas, those individuals did not violate anyconfidentiality obligations imposed by the Government or required by the Belfast Project.Rather, they expressed their concerns in an attempt to raise awareness of the important interestsat stake in this matter that otherwise might not have been known to the public.2. The Government’s arguments about the mandates of theMLAT apply to the Executive, not the Judicial, branch.The Government devotes a substantial portion of the Argument section of its Opposition(Gov. Opp. 5-9) to the contention that the Treaty Between the Government of the United Statesof America and the Government of the United Kingdom of Great Britain and Northern Ireland onMutual Legal Assistance in Criminal Matters (the US-UK MLAT) obligates this Court to complywith a request from the United Kingdom under the US-UK MLAT.
See, e.g.
, Gov. Opp. 7(“Under the US-UK MLAT, the United States is
obligated 
to obtain the documentary evidencerequested in this instance and provide it to the authorities in the UK. The treaty
obligation
extends to
federal courts
called upon to enforce such a . . . . request [italics added]”).Boston College does not dispute the fact that the Treaty does impose such an obligationon the “Central Authority” of the United States, although even that obligation is not absolute.
*
The Central Authority is defined in the Treaty as “the Attorney General or a person or agencydesignated by him” (US-UK MLAT Art. 2(1)). Nothing in the Treaty binds the Judiciary of theUnited States. On the contrary, the Treaty states that, when the execution of a request requires judicial action, “the request shall be
presented 
to the appropriate authority by the persons
*
Under Art. 3(1)(a) of the US-UK MLAT, the Central Authority may “refuse assistance” if it is “of the opinion”that the request would “impair . . . essential interests or would be contrary to important public policy.” Because theGovernment is pressing for enforcement of its subpoenas to Boston College, it obviously has not chosen to exercisethe discretion granted by the US-UK MLAT to decide that the interest in protecting academic research warrantsrefusing the United Kingdom’s request.
Case 1:11-mc-91078-JLT Document 10 Filed 07/15/11 Page 3 of 9

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