Stanford Law Review Online: Privilege and the Belfast Project
posted by Stanford Law Review
The Stanford Law Review Online has just published a Note by Will Havemann entitled Privilege and the Belfast Project. Havemann argues that a recent First Circuit opinion goes too far and threatens the idea of academic privilege:
In 2001, two Irish scholars living in the United States set out to compile the recollections of men and women involved in the decades-long conflict in Northern Ireland. The result was the Belfast Project, an oral history project housed at Boston College that collected interviews from many who were personally involved in the violent Northern Irish “Troubles.” To induce participants to document their memories for posterity, Belfast Project historians promised all those interviewed that the contents of their testimonials would remain confidential until they died. More than a decade later, this promise of confidentiality is at the heart of a legal dispute implicating the United States’ bilateral legal assistance treaty with the United Kingdom, the so-called academic’s privilege, and the First Amendment.
He concludes:
Given the confusion sown by Branzburg’s fractured opinion, the First Circuit’s hardnosed decision is unsurprising. But by disavowing the balancing approach recommended in Justice Powell’s concurring Branzburg opinion, and by overlooking the considerable interests supporting the Belfast Project’s confidentiality guarantee, the First Circuit erred both as a matter of precedent and of policy. At least one Supreme Court Justice has signaled a willingness to correct the mischief done by the First Circuit, and to clarify an area of First Amendment law where the Court’s guidance is sorely needed. The rest of the Court should take note.
Read the full article, Privilege and the Belfast Project at the Stanford Law Review Online.
December 5, 2012 at 10:45 am
Tags: academic privilege, academy, Civil Rights, Constitutional Law, First Amendment, international law, privilege, treaties
Posted in: Anonymity, Civil Rights, Constitutional Law, Current Events, First Amendment, International & Comparative Law, Law Rev (Stanford), Media Law
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Responses (15)
AmericanInIreland - December 30, 2012 at 2:27 pm
The First Circuit did not “overlook[...] the considerable interests supporting the Belfast Project’s confidentiality guarantee”, they simply recognized that such interests did not outweigh the interests of a State to prosecute murderers.
Should murderers and maimers (and their accomplices) of American babies, children, expectant mothers and old women get anonymity for their statements to academics as well? No? Why? Are American lives are worth more than Irish or British lives? Switch the IRA for Al Qaeda and you’ll have your answer, law student.
tolkein - December 30, 2012 at 3:12 pm
Why did the Boston College make promises it could not guarantee it could keep?
I must have missed the ACLU, or indeed the Stanford Law Review, filing an amicus curia brief on behalf of Judith Miller. When did this happen?
Giving journalists privilege like this will make the press seem all the more like a priestly class, not subject to the common laws of the land, but without any professional supervision. And, I’m sorry, I’ve seen too much political partisanship by journalists to wish them to be able to be an intermediary with, say, the Occupy movement, or Hamas or the PIRA, without consequences.
I’m from England. The PIRA were murderous scum, masquerading as political freedom fighters. Their actions post the Good Friday Agreement, where they accepted the structure of the British State, and joined in its government, show they were prepared to trade principle for power, the price being the murders of innocent people.If Dolours Price were truly penitent, she’d have confessed to her part in the murders. She wouldn’t have paid a price in jail terms because, as part of the Good Friday Agreement, she’d have been immediately released.
Me - December 30, 2012 at 10:26 pm
Libby was not the Plame leak — it was Armitage. See CNN report from 2006 below.
http://articles.cnn.com/2006-09-08/politics/leak.armitage_1_novak-and-other-journalists-cia-officer-valerie-plame-patrick-fitzgerald?_s=PM:POLITICS
LWGII - December 30, 2012 at 10:45 pm
As three points out, the leaker was Richard Armitage, no particular friend of the administration. Scooter Libby was not implicated in the leak. His charge, and conviction, was for a process crime which occurred during the investigation. The special prosecutor knew on the date of his appointment that the leaker was Armitage.
Don’t you people out there in California listen to the news?
Gabriel - December 30, 2012 at 10:55 pm
3 and 4, it’s a minor mistake to misremember Libby as the leaker.
It’s a major mistake to misremember it and then cite as support for the incorrect information a NYTimes article stating “she said [Libby] did not reveal Ms. Plame’s name,” and “‘I said I believed the information came from another source, whom I could not recall,’ she wrote on Friday.” That’s sloppy.
One of the reasons citations are used in law review (online) articles is to avoid this type of mistake. The very act of citation should have cued the author. The very fact of that citation being present should have cued the editor. There is two failings here. Not one.
John P. Squibob - December 30, 2012 at 11:29 pm
In regards to the Plame error, we should trust anything from the Stanford Law Review because…?
LWGII - December 30, 2012 at 11:40 pm
But you see it is so typical that anything Republican/Conservative is evil, and anything Democrat/Progunist is good. The “misremembering” always goes one way. And, by the way, “misremembering” in a pointless “investigation” sent Mr. Libby to prison.
Kasper Hauser - December 31, 2012 at 12:19 am
That the author of this article claims that Miller id’ed the source of the leak as Scooter Libby is evidence or either a) “dishonesty” or b) incompetence”.
Either way, the whole idea that there should be some sort of “privilege” for journalists or academics is ridiculous and evil.
We have one set of laws that apply to all men. There are no special classes and these….bastards….who wish to establish such classes must be stopped.
JAMES A. PATE - December 31, 2012 at 1:16 am
RE: The “Plame leak.” Plame was also not a “CIA operative” and her identity was not protected by law. She had lost that status and legal protection in 1996 when the Russians identified her in her overseas posting.
However, she did lie in her testimony to Congress when she claimed she did not know what her “operative” status was. A look at her pay grade status would have told her that she was not, a fact of which she was undoubtedly aware.
At the time of the convening of the Grand Jury, the Special Prosecutor knew at least two incontrovertible facts about the case: 1. Libby was not the source, 2. No crime had been committed.
Fred Z - December 31, 2012 at 1:26 am
The Stanford Law Review cited the New York Times as authority for it’s insane proposition that Libby was the leaker.
A formal citation, #13, to the New York Times. The New York Fucking Times. Absolutely incredible. Slovenly. Horrific. Insane.
Why not cite Marvel Comics? Or the Guardian? Or the ghost of Karl Marx?
Bruce Boyden - December 31, 2012 at 2:54 am
Wow, this post really drew the worms out of the woodwork.
Charlie Martin - December 31, 2012 at 4:32 am
Well, Bruce, I’ll grant it’s not the central point of the article; on the other hand, it certainly looks like a correction at least is appropriate.
The problem is that this is becoming one of those convenient myths, like Sarah Palin seeing Russia from her house or the New York Times identifying South Vietnamese planes as American, or a dozen others.
Surely a journal like the Stanford Law Review aspires, at least, not to promulgate known myths?
Bob Brandenburg - December 31, 2012 at 7:38 am
The Plame error is not minor. The topic is interesting and important. However, I know little of the facts underlying the Belfast situation since it occurred outside the US. When the authors give a patently false and biased rendition of a fact of which educated Americans should be aware, it taints the accuracy of the entire article.
Bryan C - December 31, 2012 at 10:40 am
If the folks doing the interviews were really concerned about the secrecy of the information they gathered and the safety of their interviewees, then perhaps they shouldn’t have lied to them. And then, having lied, announced what they were doing to the entire planet. Including the victims of these crimes.
Ethical and legal issues aside for the moment, it would seem the only way to honestly undertake such an historical project is to compile the information quietly, privately, and keep it private until you, or your successors, have kept your promises to the people you involved in your research. History isn’t in any rush, after all.
But that’s apparently too much trouble for these high-minded professionals to bother with. So, again, irresponsible members of certain professions do irresponsible things, and then self-righteously justify their actions by arguing that the rest of us are second-class citizens who, after all, don’t need all those “real” First Amendment rights.
Stanford Law Review - January 6, 2013 at 12:54 am
An author’s note clarifying the discussion of the Valerie Plame leak has been added to the article. The Stanford Law Review appreciates the lively discussion on this topic. You can view the clarification at the bottom of the original article: http://www.stanfordlawreview.org/online/privilege-belfast-project
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