          United States Court of Appeals
                      For the First Circuit

No. 11-2511

   IN RE: REQUEST FROM THE UNITED KINGDOM PURSUANT TO THE TREATY
  BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE
GOVERNMENT OF THE UNITED KINGDOM ON MUTUAL ASSISTANCE IN CRIMINAL
               MATTERS IN THE MATTER OF DOLOURS PRICE


                          UNITED STATES,

                       Petitioner, Appellee,

                                v.

                   ED MOLONEY; ANTHONY McINTYRE,

                       Movants, Appellants.


No. 12-1159

                   ED MOLONEY; ANTHONY McINTYRE,

                      Plaintiffs, Appellants,

                                v.

              ERIC H. HOLDER, JR., Attorney General;
                  JACK W. PIROZZOLO, Commissioner,

                      Defendants, Appellees.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF MASSACHUSETTS
           [Hon. William G. Young, U.S. District Judge]


                              Before

                        Lynch, Chief Judge,
               Torruella and Boudin, Circuit Judges.
     Eamonn Dornan, with whom Dornan & Associates PLLC and James J.
Cotter III were on brief, for appellants.
     Barbara Healy Smith, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, and John T. McNeil,
Assistant United States Attorney, were on brief, for appellee.



                           July 6, 2012




                               -2-
             LYNCH, Chief Judge.         These consolidated appeals are from

the   denial,    in    two   cases,      of        the    efforts     of    two   academic

researchers to prevent the execution of two sets of subpoenas

issued in May and August of 2011.                    The subpoenas were issued to

Boston College ("BC") by a commissioner appointed pursuant to 18

U.S.C. § 3512 and the "US-UK MLAT," the mutual legal assistance

treaty between the United States and the United Kingdom.                                The

subpoenas     are     part   of    an        investigation       by    United     Kingdom

authorities into the 1972 abduction and death of Jean McConville,

who was thought to have acted as an informer for the British

authorities on the activities of republicans in Northern Ireland.

This appears to be the first court of appeals decision to deal with

an MLAT and § 3512.

             The May 2011 subpoenas sought oral history recordings and

associated      documentation      from        interviews       BC    researchers       had

conducted with two former members of the Irish Republican Army

("IRA"): Dolours Price and Brendan Hughes.                       BC turned over the

Hughes   materials       because        he     had       died   and    so    he   had    no

confidentiality interests at stake.                      BC moved to quash or modify

the Price subpoenas.         The second set of subpoenas issued in August

2011 sought any information related to the death or abduction of

McConville contained in any of the other interview materials held

by BC.   BC moved to quash these subpoenas as well.




                                             -3-
             The district court denied both motions to quash.         In re:

Request from the U.K., 831 F. Supp. 2d 435 (D. Mass. 2011).             And

after undertaking in camera review of the subpoenaed materials it

ordered production.       Order, In re: Request from the U.K., No. 11-

91078 (D. Mass. Dec. 27, 2011), ECF No. 38 (ordering production of

Price interviews pursuant to May subpoenas); Findings and Order, In

re: Request from the U.K., No. 11-91078, 2012 WL 194432 (D. Mass.

Jan. 20, 2012) (ordering production of other interviews pursuant to

August subpoenas).     BC has appealed the order regarding the August

subpoenas, but that appeal is not before this panel.           BC chose not

to appeal the order regarding the Price materials sought by the May

subpoenas.

             The appellants here, Ed Moloney and Anthony McIntyre, who

unsuccessfully sought to intervene in BC's case on both sets of

subpoenas, pursue in the first appeal a challenge to the district

court's denial of their motions to intervene as of right and for

permissive intervention.          Their intervention complaint largely

repeated the claims made by BC and sought declarations that the

Attorney General's compliance with the United Kingdom's request

violates   the    US-UK    MLAT   and    injunctive   relief   or   mandamus

compelling him to comply with the terms of that treaty. The effect

of the relief sought would be to impede the execution of the

subpoenas.




                                        -4-
           Having lost on intervention, Moloney and McIntyre then

filed their own original complaint, essentially making the same

claims as made in this intervenor complaint.         The district court

dismissed the complaint, stating that even assuming the two had

standing, the reasons it gave in its reported decision for denial

of BC's arguments and denial of intervention applied to dismissal

of the complaint.    See Order of Dismissal, Moloney v. Holder, No.

11-12331 (D. Mass. Jan. 25, 2012), ECF No. 15; Tr. of Mot. Hr'g,

Moloney v. Holder, No. 11-12331 (D. Mass. Jan. 24, 2012), ECF No.

18.   Appellants freely admit that their complaint "essentially set

forth the same claim" as their complaint in intervention.          In the

second appeal they challenge the dismissal of their separate civil

complaint for lack of subject matter jurisdiction and for failure

to state a claim.

                                    I.

           The factual background for these suits is not disputed.

A.         The Belfast Project at Boston College

           The Belfast Project ("the Project") began in 2001 under

the sponsorship of BC.    An oral history project, its goal was to

document in taped interviews the recollections of members of the

Provisional Irish Republican Army, the Provisional Sinn Fein, the

Ulster   Volunteer   Force,   and   other   paramilitary   and   political

organizations involved in the "Troubles" in Northern Ireland from

1969 forward.   The purpose was to gather and preserve the stories


                                    -5-
of individual participants and provide insight into those who

become personally engaged in violent conflict.               The Project is

housed at the John J. Burns Library of Rare Books and Special

Collections at BC.

             The Project was first proposed by appellant Ed Moloney,

a journalist and writer. He later contracted with BC to become the

Project's director. Before the Project started, Robert K. O'Neill,

the Director of the Burns Library, informed Moloney that, although

he had not yet conferred with counsel on the point, he could not

guarantee that BC "would be in a position to refuse to turn over

documents [from the Project] on a court order without being held in

contempt."

             Against this background, the Project attempted to guard

against unauthorized disclosure. The agreement between Moloney and

BC directed him as Project Director to require interviewers and

interviewees to sign a confidentiality agreement forbidding them

from disclosing the existence or scope of the Project without the

permission of BC.    The agreement also required the use of a coding

system to maintain the anonymity of interviewees and provided that

only the Burns Librarian and Moloney would have access to the key

identifying    the   interviewees.         Although   the   interviews   were

originally going to be stored in Belfast, Northern Ireland, as well

as Boston, the Project leadership ultimately decided that the

interviews could only be safely stored in the United States.             They


                                     -6-
were eventually stored in the "Treasure Room" of the Burns Library,

with extremely limited access.

              The      agreement   between      Moloney   and    BC   requires       that

"[e]ach interviewee is to be given a contract guaranteeing to the

extent American law allows the conditions of the interview and the

conditions of its deposit at the Burns Library, including terms of

an embargo period if it becomes necessary" (emphasis added).                          The

agreement,        in    this   clause,    expressly       acknowledged        that    its

protections could be limited by American law.                   The agreement also

directs that the Project adopt an "appropriate user model, such as

Columbia University's Oral History Research Office Guidelines

statement."1

              The Project employed researchers to interview former

members of the Irish Republican Army and the Ulster Volunteer

Force.      Appellant Anthony McIntyre, himself a former IRA member,

was one of those researchers.                McIntyre worked for the Project

under a contract governed by the terms of the agreement between

Moloney and BC. McIntyre's contract required him to transcribe and

index       the   interviews       he    conducted    and       to    abide    by     the

confidentiality requirements of the Moloney agreement.                        McIntyre

conducted a total of twenty-six interviews of persons associated


        1
        As the district court noted in its opinion, researchers for
Columbia University's oral history projects apparently advise
interviewees that whatever they say is subject to release under
court orders and subpoenas. See In re: Request from the U.K., 831
F. Supp. 2d 435, 441 n.4 (D. Mass. 2011).

                                          -7-
with the republican side of the conflict for the Project by the

time   it    ended   in    2006.     In    addition,     the    Project    contains

interviews with fourteen members of Protestant paramilitary groups

and one member of law enforcement.              There are a total of forty-one

interview series (each series may contain multiple interviews with

a single person).

             Interviewees entered into donation agreements with BC,

which were signed by the interviewees and by O'Neill, the Burns

Librarian.      The donation agreements transfer possession of the

interview recordings and transcripts to BC and assign to the school

"absolute title" to the materials, "including whatever copyright"

the interviewee may own in their contents. The donation agreements

have   the   following      clause   regarding      access     to   the   interview

materials:

             Access to the tapes and transcripts shall be
             restricted until after my death except in
             those cases where I have provided prior
             written approval for their use following
             consultation with the Burns Librarian, Boston
             College. Due to the sensitivity of content,
             the ultimate power of release shall rest with
             me.   After my death the Burns Librarian of
             Boston College may exercise such power
             exclusively.

This   clause   does      not   contain    the    term   "confidentiality"     and

provides only that access will be restricted.                  But it does recite

that the ultimate power of release belongs to the donor during the

donor's lifetime.         The donation agreements do not contain the "to

the extent American law allows" language that is contained in the

                                          -8-
agreement between Moloney and BC. A copy of the donation agreement

for Brendan Hughes, but not one for Dolours Price, is in the

record, but we assume both signed one.2

            In   2010    Moloney   published    a     book   and    released    a

documentary, both entitled "Voices from the Grave, Two Men's War in

Ireland," based on Belfast Project interviews with Hughes and with

David Ervine, a former member of the Ulster Volunteer Force.3                   In

addition, news reports in Northern Ireland revealed that Price had

been interviewed by academics at a Boston-area university and that

she   had   admitted      to   being     involved     in     the    murder     and

"disappearances" of four persons targeted by the IRA, including

Jean McConville.

B.          The US-UK MLAT Subpoenas

            On   March   30,   2011,   the   United    States      submitted   an

application to the district court ex parte and under seal pursuant

to the US-UK MLAT and 18 U.S.C. § 3512, seeking the appointment of

an Assistant United States Attorney as commissioner to collect



      2
        An affidavit from McIntyre, who interviewed Price, states
that Price did sign a donation agreement, which McIntyre states
that he witnessed and also signed, and that he sent the donation
form to BC.    The affidavit from O'Neill, the Burns Librarian,
states that a search of the Project's archives for Price's executed
donation agreement failed to locate it, but that there is no reason
to doubt that Price did in fact execute a donation agreement just
like the one executed by Hughes.
      3
        At the time the book was published, both Hughes and Ervine
had died, so under the terms of their donation agreements their
interviews could be released to the public.

                                       -9-
evidence from witnesses and to take such other action as necessary

to effectuate a request from law enforcement authorities in the

United   Kingdom.    That   application    remains   under   seal.   The

application resulted from a formal request made by the United

Kingdom, pursuant to the US-UK MLAT, for legal assistance in a

pending criminal investigation in that country involving the 1972

murder and kidnapping of Jean McConville.            The district court

granted the government's application on March 31, 2011, and entered

a sealed order granting the requested appointment.

           The commissioner issued two sets of subpoenas for Belfast

Project materials.   The first set of subpoenas were received by BC

on May 5, 2011, and were directed to the Trustees of Boston

College; Robert K. O'Neill, Director of the Burns Library; and

Thomas E. Hachey, Professor of History and Executive Director of

the Center for Irish Studies at BC.       The subpoenas were issued for

the purpose of assisting the United Kingdom "regarding an alleged

violation of the laws of the United Kingdom," namely, murder,

conspiracy to murder, incitement to murder, aggravated burglary,

false imprisonment, kidnapping, and causing grievous bodily harm

with intent to cause such harm.     The subpoenas did not state the

identity of the victim or victims of these crimes, and sought

recordings, written documents, written notes, and computer records

of interviews made with Brendan Hughes and Dolours Price, to be

produced on May 26, 2011.


                                 -10-
           BC produced responsive materials related to Hughes; the

conditions of his donation agreement pertaining to the release of

his interviews had terminated with his death.   The time to produce

the Price materials was extended by agreement with the U.S.

Attorney's Office until June 2, 2011.

           The second set of subpoenas were received by counsel for

BC on August 4, 2011.   The August subpoenas sought recordings of

"any and all interviews containing information about the abduction

and death of Mrs. Jean McConville," along with related transcripts,

records, and other materials.   The August subpoenas were directed

at the 176 interviews with the remaining 24 republican-associated

interviewees who were part of the Project.         These subpoenas

directed production no later than August 17, 2011.

C.         The Litigation Initiated by BC

           On June 7, 2011, BC moved to quash the May subpoenas. In

the alternative, BC requested that the court allow representatives

from BC access to the documents that describe the purposes of the

investigation to enable BC to specify with more particularity in

what ways the subpoenas were overbroad or that the court conduct

such a review in camera. The government opposed the motion. After

receiving the August subpoenas, BC filed a new motion to quash

addressed to both sets of subpoenas, which the government also

opposed.




                                -11-
           On August 31, 2011, appellants Moloney and McIntyre filed

a motion to intervene as of right and for permissive intervention,

see Fed. R. Civ. P. 24, along with their intervention complaint.

That pleading tracked the arguments made in BC's motion to quash

and also alleged that the Attorney General's compliance with the

United   Kingdom's   request   violated   the    US-UK     MLAT   and   that

enforcement of the subpoenas would violate Moloney and McIntyre's

First and Fifth Amendment rights.         Moloney and McIntyre sought

declarations that the Attorney General was in violation of the

US-UK MLAT and injunctive relief or mandamus compelling him to

comply with the terms of that treaty, the effect of which would be

to impede the execution of the subpoenas.        The government opposed

the motions to intervene.

           On December 16, 2011, the district court issued an

opinion denying BC's motions to quash the May and August subpoenas

for the reasons stated in its opinion.          In re: Request from the

U.K., 831 F. Supp. 2d at 459.    As to BC's alternative request, the

court ordered BC to produce materials responsive to the two sets of

subpoenas for the court to review in camera.4        Id.




     4
        During a hearing held on December 22, 2011, the court
explained that it would engage in a two-part analysis, first
determining whether the produced materials fell within the scope of
the subpoenas, and second engaging in a balancing test. See Tr. of
Conf., In re: Request from the U.K., No. 11-91078 (D. Mass. Dec.
22, 2011), ECF No. 35.

                                 -12-
             The district court also denied Moloney and McIntyre's

motion to intervene as of right and their motion for permissive

intervention.       Id.   The court stated that no federal statute gave

Moloney and McIntyre an unconditional right to intervene under Rule

24(a)(1), "and the US-UK MLAT prohibits them from challenging the

Attorney General's decisions to pursue the MLAT request."5                Id. at

458.       The    district    court    "conclude[d]     that   Boston    College

adequately       represents   any     potential   interests    claimed   by   the

Intervenors.       Boston College has already argued ably in favor of

protecting Moloney, McIntyre and the interviewees." Id. The court

did not separately analyze permissive intervention.                Moloney and

McIntyre timely appealed the denial of their motion to intervene on

December 29, 2011.

             Having reviewed in camera the interviews of Dolours Price

sought by the May subpoenas, the district court on December 27,

2011 ordered that the May subpoenas be enforced according to their

terms.     See Order, In re: Request from the U.K., No. 11-91078 (D.

Mass. Dec. 27, 2011), ECF No. 38.              BC and the other recipients of

the May subpoenas did not appeal this order.6


       5
        The district court also mentioned but did not analyze the
rule that "[a]n interest that is too contingent or speculative
. . . cannot furnish a basis for intervention as of right." In re:
Request from the U.K., 831 F. Supp. 2d at 458 (quoting Ungar v.
Arafat, 634 F.3d 46, 50-51 (1st Cir. 2011)) (internal quotation
marks omitted).
       6
        On December 30, 2011, this court granted Moloney and
McIntyre's motion to stay the portion of the district court's order

                                        -13-
          Having been denied intervention, Moloney and McIntyre

filed a separate civil complaint in the district court on December

29, 2011. The same legal theories were stated in this complaint as

had been in the intervention complaint.    The government moved to

dismiss plaintiffs' separate complaint for lack of subject matter

jurisdiction under Rule 12(b)(1) and for failure to state a claim

under Rule 12(b)(6).

          The district court held a hearing on the motion to

dismiss on January 24, 2012, and dismissed the case from the bench.

See Tr. of Mot. Hr'g at 11, Moloney v. Holder, No. 11-12331 (D.

Mass. Jan. 24, 2012), ECF No. 18. The district court "rule[d] that

neither Mr. McIntyre nor Mr. Moloney under the Mutual Legal

Assistance Treaty and its adoption by the [S]enate and the treaty

materials has standing to bring this particular claim."    Id.   The

district court also stated:

          Beyond that, on the merits, I am satisfied
          that the Attorney General as [a] matter of law
          has acted appropriately with respect to the
          steps he has taken under this treaty, and I
          can conceive of no different result applying
          the heightened scrutiny that I think is
          appropriate for these materials were this case
          to go forward on the merits.7


of December 27, 2011 permitting the government to turn over the
Price interview materials to the United Kingdom, pending the
resolution of this appeal.
     7
        It is evident from the transcript of the hearing that the
district court considered Moloney and McIntyre's constitutional
claims as being the same as those raised by BC's motions to quash
and that the court dismissed Moloney and McIntyre's claims for the

                               -14-
Id.   Moloney and McIntyre timely appealed the dismissal of their

complaint on January 29, 2012.

           As to BC's motion to quash the August subpoenas, on

January 20, 2012, the district court ordered BC to produce to the

government the full series of interviews and transcripts of five

interviewees   and   two   specific   interviews   (but   not   the   full

interview series) with two additional interviewees, along with

transcripts and related records.8       See Findings and Order, In re:

Request from the U.K., No. 11-91078, 2012 WL 194432 (D. Mass. Jan.

20, 2012). The court determined that the remaining interviews were

not within the subpoenas' scope.9     BC has appealed this order, and

that appeal is not before this panel.       See Appeal No. 12-1236.

           The American Civil Liberties Union of Massachusetts

(ACLUM) has filed an amicus curiae brief in support of appellants

Moloney and McIntyre.10



same reasons that it denied BC's motions. Tr. of Mot. Hr'g at 8-
11, Moloney v. Holder, No. 11-12331 (D. Mass. Jan. 24, 2012), ECF
No. 18.
      8
        The court made production contingent on the lifting of the
stay entered by this court on December 30, 2011.
      9
        No party raises on appeal any question whether the district
court had discretion to review the materials to determine whether
they fell within the scope of the subpoenas or acted within any
discretion it had.
      10
        The brief states three interests: support of the First
Amendment claim, expression of concern about disclosure of
confidential information held by others, and an expression of
concern about the government's interpretation of the US-UK MLAT.

                                 -15-
                                  II.

 Dismissal of the Civil Complaint's Claims Under the US-UK MLAT
                      and 18 U.S.C. § 3512


             We review de novo the dismissal of the appellants'

complaint.     See Abdel-Aleem v. OPK Biotech LLC, 665 F.3d 38, 41

(1st Cir. 2012) (dismissal for lack of subject matter jurisdiction

reviewed de novo); Feliciano-Hernández v. Pereira-Castillo, 663

F.3d 527, 532 (1st Cir. 2011) (dismissal for failure to state a

claim reviewed de novo), cert. denied, 80 U.S.L.W. 3676 (U.S. June

11, 2012).    We "accept[] as true all well-pleaded facts, analyz[e]

those facts in the light most hospitable to the plaintiff's theory,

and draw[] all reasonable inferences for the plaintiff."    New York

v. Amgen Inc., 652 F.3d 103, 109 (1st Cir. 2011) (quoting United

States ex rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d 377,

383 (1st Cir. 2011)), cert. dismissed, 132 S. Ct. 993.    We are not

bound by the district court's reasoning but "may affirm an order of

dismissal on any basis made apparent from the record."      Cook v.

Gates, 528 F.3d 42, 48 (1st Cir. 2008) (quoting McCloskey v.

Mueller, 446 F.3d 262, 266 (1st Cir. 2006)).

             Moloney and McIntyre essentially make several arguments

of statutory error and one constitutional claim.    They argue that

(1) they state a claim under the US-UK MLAT and 18 U.S.C. § 3512;

in any event, (2) they have a claim under the Administrative

Procedure Act, 5 U.S.C. § 702, and 28 U.S.C. § 1331; and that,


                                 -16-
regardless, (3) the district court had residual discretion which it

abused in not quashing the subpoenas.             They also argue that their

claim under the First Amendment of the U.S. Constitution, brought

under        federal   question   jurisdiction,    28   U.S.C.   §   1331,   was

improperly dismissed, an argument we address in part III.

                Moloney and McIntyre contend they may bring suit on the

claims that the Attorney General failed to fulfill his obligations

under the US-UK MLAT and that they have a private right of action

to seek a writ of mandamus compelling him to comply with the treaty

or to seek a declaration from a federal court that he has not

complied with the treaty.11

                The appellants' claims under the US-UK MLAT fail because

appellants are not able to state a claim that they have private

rights that arise under the treaty, and because a federal court has

no subject matter jurisdiction to entertain a claim for judicial

review of the Attorney General's actions pursuant to the treaty.




        11
        Appellants assert that the Attorney General's actions
violate the US-UK MLAT because it was not reasonable to believe
that a prosecution would take place in the underlying case; he
failed to take into account certain "essential interests" and
"public policy" in deciding whether to comply with a request under
the treaty; the crimes under investigation by the United Kingdom
were "of a political character;" and he did not consider the
implications for the peace process in Northern Ireland of complying
with the United Kingdom's request.     The federal courts may not
review this decision by the Attorney General.

                                      -17-
A.          Explanation of the Treaty and Statutory Scheme

            The United States has entered into a number of mutual

legal assistance treaties ("MLATs") which typically provide for

bilateral, mutual assistance in the gathering of legal evidence for

use   by   the   requesting   state    in    criminal   investigations   and

proceedings.      A description of the history and evolution of such

MLATs may be found in the Ninth Circuit's decision in In re 840

140th Ave. NE, 634 F.3d 557, 563-64 (9th Cir. 2011).

            The MLAT between the United States and the United Kingdom

was signed on January 6, 1994, and entered into force on December

2, 1996.    See Treaty Between the Government of the United States

and the Government of the United Kingdom of Great Britain and

Northern Ireland on Mutual Legal Assistance in Criminal Matters,

U.S.-U.K., Dec. 2, 1996, S. Treaty Doc. No. 104-2.            In 2003, the

United States signed a mutual legal assistance treaty with the

European Union ("US-EU MLAT") that made additions and amendments to

the US-UK MLAT; the latter is in turn included as an annex to the

US-EU MLAT.      See Agreement on Mutual Legal Assistance Between the

United States of America and the European Union, U.S.-E.U., June

25, 2003, S. Treaty Doc. No. 109-13. Both MLATs are self-executing

treaties.    S. Treaty Doc. No. 109-13, at vii ("The U.S.-EU Mutual

Legal Assistance Agreement and bilateral instruments [including the

annexed US-UK MLAT] are regarded as self-executing treaties under

U.S. law . . . .").


                                      -18-
           Article 1 of the US-UK MLAT provides that the parties to

the agreement shall assist one another in taking testimony of

persons;   providing   documents,    records,   and   evidence;   serving

documents; locating or identifying persons; transferring persons in

custody for testimony or other purposes; executing requests for

searches and seizures; identifying, tracing, freezing, seizing, and

forfeiting   the   proceeds   and   instrumentalities    of   crime;   and

providing other assistance the parties' representatives may agree

upon.   See US-UK MLAT, art. 1, ¶ 2.

           Importantly, article 1 further states: "This treaty is

intended solely for mutual legal assistance between the Parties.

The provisions of this Treaty shall not give rise to a right on the

part of any private person to obtain, suppress, or exclude any

evidence, or to impede the execution of a request."           US-UK MLAT,

art. 1, ¶ 3.       This treaty expressly prohibits the creation of

private rights of action.

           Article 2 concerns Central Authorities: each party's

representative responsible for making and receiving requests under

the US-UK MLAT.     US-UK MLAT, art. 2, ¶ 3.    The treaty states that

the Central Authority for the United States is "the Attorney

General or a person or agency designated by him."             US-UK MLAT,

art. 2, ¶ 2.




                                    -19-
           Article 3 sets forth certain conditions under which the

Central Authority of the Requested Party may refuse assistance.12

Before the Central Authority of a Requested Party denies assistance

for any of the listed reasons, the treaty states that he or she

"shall consult with the Central Authority of the Requesting Party

to consider whether assistance can be given subject to such

conditions as it deems necessary."     US-UK MLAT, art. 3, ¶ 2.




     12
          Article 3, paragraph one states that

           [t]he Central Authority of the Requested Party
           may refuse assistance if:

           (a) the Requested Party is of the opinion that
           the request, if granted, would impair its
           sovereignty, security, or other essential
           interests or would be contrary to important
           public policy;

           (b) the request relates to an offender who, if
           proceeded against in the Requested Party for
           the offense for which assistance is requested,
           would be entitled to be discharged on the
           grounds of previous acquittal or conviction;
           or

           (c) the request relates to an offense that is
           regarded by the Requested Party as:

                (i) an offense of a political character;
                or

                (ii) an offense under military law of the
                Requested Party which is not also an
                offense under the ordinary civilian law
                of the Requested Party.

US-UK MLAT, art. 3, ¶ 1.

                                -20-
              In article 18, entitled "Consultation," the treaty states

that

              [t]he Parties, or Central Authorities, shall
              consult promptly, at the request of either,
              concerning the implementation of this Treaty
              either generally or in relation to a
              particular case.    Such consultation may in
              particular take place if . . . either Party
              has rights or obligations under another
              bilateral or multilateral agreement relating
              to the subject matter of this Treaty.

US-UK MLAT, art. 18, ¶ 1.

              The requests from the United Kingdom in this case were

executed under 18 U.S.C. § 3512, which was enacted as part of the

Foreign Evidence Request Efficiency Act of 2009, Pub. L. No.

111-79, 123 Stat. 2086.            When the US-UK MLAT was entered into,

requests for assistance were to be executed under a different

statute, 28 U.S.C. § 1782.           See S. Exec. Rep. No. 104-23, at 13

(1996)      (report   of   the    Senate   Committee   on   Foreign   Relations

accompanying the US-UK MLAT).              Among other differences, § 3512

provides for a more streamlined process than under § 1782 for

executing      requests    from    foreign    governments    related   to   the

prosecution of criminal offenses.13           Enforcement of similar MLATs


       13
        Section 1782 effectively requires the Attorney General as
Central Authority to respond to requests for evidence from foreign
governments by filing requests with the district court in every
district in which evidence or a witness may be found. See 155
Cong. Rec. S6810 (daily ed. June 18, 2009) (letter from Acting
Assistant Att'y Gen. Burton to Sen. Whitehouse). In practice this
requires involving multiple U.S. Attorneys' Offices and district
courts in a single case. Id. Section 3512, on the other hand,
permits a single Assistant United States Attorney to pursue

                                       -21-
under the provisions of § 1782 was the subject of consideration in

In re 840 140th Ave. NE, 634 F.3d 557 (9th Cir. 2011); In re

Commissioner's Subpoenas, 325 F.3d 1287 (11th Cir. 2003), abrogated

in part by Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S.

241 (2004); and In re Erato, 2 F.3d 11 (2d Cir. 1993).

B.          Appellants Have No Enforceable Rights Derived from the
            US-UK MLAT

            Interpretation of the treaty takes place against "the

background presumption . . . that '[i]nternational agreements, even

those directly benefitting private persons, generally do not create

rights or provide for a private cause of action in domestic

courts.'"    Medellín v. Texas, 128 S. Ct. 1346, 1357 n.3 (2008)

(alteration in original) (quoting 2 Restatement (Third) of Foreign

Relations Law of the United States § 907 cmt. a, at 395 (1986)).

The First Circuit and other courts of appeals have held that

"treaties   do   not   generally   create    rights   that   are   privately

enforceable in the federal courts."         United States v. Li, 206 F.3d

56, 60 (1st Cir. 2000) (en banc); see also Mora v. New York, 524

F.3d 183, 201 & n.25 (2d Cir. 2008) (collecting cases from ten

circuits holding that there is a presumption that treaties do not

create privately enforceable rights in the absence of express


requests   in   multiple   judicial  districts,   see   18   U.S.C.
§ 3512(a)(1); 155 Cong. Rec. S6809 (daily ed. June 18, 2009)
(statement of Sen. Whitehouse), and allows individual district
court judges to oversee and approve subpoenas and other orders (but
not search warrants) in districts other than their own, see 18
U.S.C. § 3512(f).

                                   -22-
language to the contrary).    Express language in a treaty creating

private rights can overcome this presumption.     See Mora, 524 F.3d

at 188.

            The US-UK MLAT contains no express language creating

private rights.   To the contrary, the treaty expressly states that

it does not give rise to any private rights.    Article 1, paragraph

3 of the treaty states, in full: "This treaty is intended solely

for mutual legal assistance between the Parties. The provisions of

this Treaty shall not give rise to a right on the part of any

private person to obtain, suppress, or exclude any evidence, or to

impede the execution of a request."     US-UK MLAT, art. 1, ¶ 3.   The

language of the treaty is clear: a "private person," such as

Moloney or McIntyre here, does not have any right under the treaty

to "suppress . . . any evidence, or to impede the execution of a

request."

            If there were any doubt, and there is none, the report of

the Senate Committee on Foreign Relations that accompanied the

US-UK MLAT confirms this reading of the treaty's text:

            [T]he Treaty is not intended to create any
            rights to impede execution of requests or to
            suppress   or   exclude    evidence   obtained
            thereunder. Thus, a person from whom records
            are sought may not oppose the execution of the
            request by claiming that it does not comply
            with the Treaty's formal requirements set out
            in article 3.

S. Exec. Rep. No. 104-23, at 14.



                                 -23-
          Other courts considering MLATs containing terms similar

to the US-UK MLAT here have uniformly ruled that no such private

right exists.   See In re Grand Jury Subpoena, 646 F.3d 159, 165

(4th Cir. 2011) (subject of a subpoena issued pursuant to an MLAT

with a clause identical to the US-UK MLAT's article 1, paragraph 3

"failed to show that the MLAT gives rise to a private right of

action that can be used to restrict the government's conduct");

United States v. Rommy, 506 F.3d 108, 129 (2d Cir. 2007) (defendant

who argued that evidence against him was improperly admitted

because it was gathered in violation of US-Netherlands MLAT could

not "demonstrate that the treaty creates any judicially enforceable

right that could be implicated by the government's conduct" in the

case); United States v. $734,578.82 in U.S. Currency, 286 F.3d 641,

659 (3d Cir. 2002) (article 1, paragraph 3 of US-UK MLAT barred

claimants' argument that seizure and subsequent forfeiture of money

violated the treaty); United States v. Chitron Elecs. Co. Ltd., 668

F. Supp. 2d 298, 306-07 (D. Mass. 2009) (defendant's argument that

service of criminal summons was defective under US-China MLAT,

which contained a clause identical to article 1, paragraph 3 of

US-UK MLAT, failed because "the MLAT does not create a private

right of enforcement of the treaty").

          Moloney   and   McIntyre    attempt   to   get   around   the

prohibition on the creation of private causes of action with three

arguments based on the treaty language. Appellants appear to argue


                               -24-
that the text of the US-UK MLAT only covers requests for documents

in the possession of the Requested Party but not for documents held

by third persons who are merely under the jurisdiction of the

government which is the Requested Party.         This is clearly wrong.

Article 1, paragraph 2 of the treaty states that a form of

assistance    provided   for   under   the   treaty   includes   "providing

documents, records, and evidence." US-UK MLAT, art. 1, ¶ 2(b). As

the Senate report explains, the treaty "permits a State to compel

a person in the Requested State to testify and produce documents

there."   S. Exec. Rep. No. 104-23, at 7.

           Appellants' second argument is that article 1, paragraph

3 applies only to criminal defendants who try to block enforcement.

This argument has no support in the text of the treaty.           The US-UK

MLAT plainly states that the treaty does not "give rise to a right

on the part of any private person . . . to impede the execution of

a request."     US-UK MLAT, art. 1, ¶ 3 (emphasis added).              This

prohibition by its terms encompasses all private persons, not just

criminal defendants.

           Appellants finally contend that they do not seek to

"obtain, suppress, or exclude any evidence, or to impede the

execution of a request," but instead merely to enforce the treaty

requirements before there can be compliance with a subpoena. Their

own requests for relief make it clear they are attempting to do

exactly what they say they are not.


                                   -25-
          Because the US-UK MLAT expressly disclaims the existence

of any private rights under the treaty, appellants cannot state a

claim under the treaty upon which relief can be granted.14

C.        The APA Does Not Provide a Claim for Judicial Review

          Appellants   attempt   to     circumvent   the   US-UK   MLAT's

prohibition on private rights of action by framing their suit as

one of judicial review under the APA.15      See 5 U.S.C. § 702.

          It is true that § 702 of the APA provides that "[a]

person suffering legal wrong because of agency action, or adversely

affected or aggrieved by agency action within the meaning of a

relevant statute, is entitled to judicial review thereof."          Id.

However, § 701(a)(1) withdraws the right to judicial review to the


     14
        We reject their broader contention that the US-EU MLAT
provides a basis for applying U.S. domestic law. That treaty has
a provision that reads: "The provisions of this Agreement shall not
. . . expand or limit rights otherwise available under domestic
law." US-EU MLAT, art. 3, ¶ 5. Not only is appellants' reliance
on this provision question begging, it is also misplaced. By its
terms the provision applies only to the US-EU MLAT and not to any
of the related bilateral agreements, such as the US-UK MLAT at
issue in this case.
     15
         The government argues that Moloney and McIntyre lack
prudential standing to bring their claims under the APA because
their asserted interests fall outside the zone of interests meant
to be protected or regulated by the US-UK MLAT. See Match-E-Be-
Nash-She-Wish Band of Pottawatomi Indians v. Patchak, Nos. 11-246,
11-247, 2012 WL 2202936, at *9 (U.S. June 18, 2012) (describing the
prudential standing test). The zone-of-interests standing question
"is an issue of statutory standing," not Article III standing.
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 97 (1998).
We may and do bypass the question of appellants' statutory standing
and resolve the issue of whether the APA provides them with a cause
of action on the merits. See id. at 97 & n.2 (merits questions may
be decided before statutory standing questions).

                                 -26-
extent that "statutes preclude judicial review."           Id.   The treaty

here by its express language precludes judicial review.           Further,

"the    structure   of   the   statutory   scheme,   its   objectives,   its

legislative history, and the nature of the administrative action

involved" all dictate that no judicial review is available under

the APA. Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984).

Section 701(a)(1) thus bars federal court jurisdiction here.16

Accord Comm. of U.S. Citizens Living in Nicar. v. Reagan, 859 F.2d

929, 943 (D.C. Cir. 1988) ("[T]he APA does not grant judicial

review of agencies' compliance with a legal norm that is not

otherwise an operative part of domestic law." (citing 5 Davis,

Administrative Law Treatise § 28.1, at 256 (2d ed. 1984))).


       16
        Appellants admit they cannot invoke the Declaratory
Judgment Act, 28 U.S.C. § 2201, as an independent basis for
jurisdiction over their claims. See Alberto San, Inc. v. Consejo
de Titulares del Condominio San Alberto, 522 F.3d 1, 5 (1st Cir.
2008) (Declaratory Judgment Act "merely 'makes available an added
anodyne for disputes that come within the federal courts'
jurisdiction on some other basis.'" (quoting Ernst & Young v.
Depositors Econ. Prot. Corp., 45 F.3d 530, 534 (1st Cir. 1995))
(citing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671
(1950))).
       Nor are appellants entitled to a writ of mandamus under 28
U.S.C. § 1361.    "Mandamus is regarded as an extraordinary writ
reserved for special situations. Among its ordinary preconditions
are that the agency or official have acted (or failed to act) in
disregard of a clear legal duty and that there be no adequate
conventional means for review." In re City of Fall River, Mass.,
470 F.3d 30, 32 (1st Cir. 2006). Such clear legal duty must be
"nondiscretionary." Eveland v. Dir. of Cent. Intelligence Agency,
843 F.2d 46, 51 (1st Cir. 1988) (per curiam) (quoting Heckler v.
Ringer, 466 U.S. 602, 616 (1984)). Here, the plain text of article
1, paragraph 3 of the US-UK MLAT precludes any legal duty --
discretionary or nondiscretionary -- under the treaty on the part
of the Attorney General to any private party.

                                    -27-
D.              The District Court Did Not Abuse Its Discretion, in Any
                Event, in Denying Relief

                The district court reasoned that it had discretion, under

the laws of the United States, particularly 18 U.S.C. § 3512, to

quash the subpoenas, and concluded that it would exercise its

discretion not to do so.          The appellants, accordingly, argue that

they may take advantage of that discretion and that the district

court        abused   its   discretion   in     not   granting   relief.17   The

government in this case has chosen not to address the question of

whether there is any such discretion, or, if so, the scope of it or

who may invoke it.          By contrast, in a case under the US-Russia MLAT

and 28 U.S.C. § 1782, the government argued that the district court



        17
        Appellants' reliance on Intel Corp. v. Advanced Micro
Devices, Inc., 542 U.S. 241 (2004), fails. Moloney and McIntyre
argue that the district court should have evaluated the subpoenas
by applying the discretionary factors set forth in Intel. In that
case the Supreme Court set out "factors that bear consideration in
ruling on a § 1782(a) request" for the production of evidence for
use in a foreign tribunal. Id. at 264.
       The Intel factors are not applicable in this case for two
reasons, whether or not § 3512 provides any residual discretion.
The request here was brought under 18 U.S.C. § 3512, not 28 U.S.C.
§ 1782(a).   In addition, the United Kingdom's request was made
pursuant to an MLAT.    The Court developed the Intel factors to
apply to a situation where 28 U.S.C. § 1782(a) provided the only
substantive standards for evaluating a request, but here such
substantive standards are provided by the US-UK MLAT. See In re
840 140th Ave. NE, 634 F.3d 557, 571 (9th Cir. 2011) (MLAT requests
brought pursuant to § 1782 use that statute's procedural mechanisms
"without importing [its] substantive limitations"); Nanda &
Pansius, Litigation of International Disputes in U.S. Courts
§ 17:53 ("The [MLAT] provides at least three advantages:
reciprocity; the reduction (if not elimination) of the court's
discretion under § 1782; and the streamlining of evidence
processes.").

                                         -28-
lacked discretion to quash the subpoena.                In re 840 140th Ave. NE,

634   F.3d   at     565,   568.     The   Ninth      Circuit    agreed    with   the

government's position, and noted that at most the statute provides

"a procedure for executing requests, but not . . . a means for

deciding whether or not to grant or deny a request so made."                     Id.

at 570 (quoting In re Commissioner's Subpoenas, 325 F.3d at 1297)

(internal quotation mark omitted). In doing so, it agreed with the

Eleventh Circuit in In re Commissioner's Subpoenas.

             By contrast, here, for purposes of this appeal, the

government    has     assumed     arguendo    that    the   district     court   had

discretion    to     quash   (going   beyond      the   issue    of   whether    the

documents were responsive to the terms of the subpoenas) and has

argued that the court acted properly within any discretion it may

have had.    So we have no occasion to pass on these assumptions and

caution that we are not deciding any of these issues.                    The issues

before us are more limited.

             Even    assuming     arguendo    the    district    court    had    such

discretion, a question we do not address, we see no basis to upset

the decision not to quash.          The district court concluded that the

balance of interests favored the government.                   See Order, In re:

Request from the U.K., No. 11-91078 (D. Mass. Dec. 27, 2011), ECF

No. 38; Findings and Order, In re: Request from the U.K., No. 11-

91078, 2012 WL 194432 (D. Mass. Jan. 20, 2012).                        The court's




                                       -29-
finding that any balancing favored the government was not an abuse

of discretion, assuming such discretion existed.

                                 III.

          The Constitutional Claims Were Properly Dismissed

            Moloney and McIntyre's civil complaint alleged violations

of their constitutional rights under the First Amendment.18 We have

jurisdiction under 28 U.S.C. § 1331.

            It is undisputed that treaty obligations are subject to

some constitutional limits.    See Am. Ins. Ass'n v. Garamendi, 539

U.S. 396, 417 & n.9 (2003) (treaty obligations are "subject . . .

to the Constitution's guarantees of individual rights").      Like the

Ninth Circuit in In re 840 140th Ave. NE, we think it clear that

the Constitution does not compel the consideration under the treaty

of discretionary factors such as those contained in § 1782,

although Congress may choose to enact some in statutes.     634 F.3d

at 573.

            We affirm the dismissal for failure to state a claim,

after disposing of some of the government's initial arguments.




     18
        Although the complaint alludes to a Fifth Amendment claim,
based on alleged risk to appellants, no such claim is pled or
briefed, and it fails. See Marrero-Rodríguez v. Municipality of
San Juan, 677 F.3d 497, 501 (1st Cir. 2012) (dismissing as not
properly pled a Fourth Amendment claim which was only mentioned on
the first page of the complaint, and was not even pled as a claim).

                                 -30-
A.              The Government's Standing Objections

                The government attempts to short stop any analysis of

whether a claim is stated by arguing that neither appellant has

standing under Article III to raise a constitutional claim.

Standing has both an Article III component and a prudential

component.          Katz v. Pershing, LLC, 672 F.3d 64, 71-72 (1st Cir.

2012).        If the government's objections went only to prudential

standing, they could easily be bypassed in favor of a decision on

the merits.          Nisselson v. Lernout, 469 F.3d 143, 150 (1st Cir.

2006) (challenges to plaintiff's standing to sue "must be addressed

first only if they call into question a federal court's Article III

power to hear the case").

                "Standing under Article III of the Constitution requires

that an injury be concrete, particularized, and actual or imminent;

fairly traceable to the challenged action; and redressable by a

favorable ruling." Monsanto Co. v. Geertson Seed Farms, 130 S. Ct.

2743,        2752   (2010).   At   this   stage,   under    Iqbal   we   credit

plaintiffs' allegations of threatened harm.19              See Katz, 672 F.3d

at 70; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).            On their face,

the pleadings appear to allege the requisite Article III injury

that is fairly traceable to the issuance of the subpoenas and

redressable by a favorable ruling.           To the extent the government


        19
        We add that the government disputes these allegations of
threatened harm to appellants, which also makes any final
resolution of the standing issue at this stage inadvisable.

                                      -31-
asserts that the appellants lack prudential standing, we bypass the

arguments.

B.           Failure to State a First Amendment Claim

             We affirm the dismissal, as we are required to do by

Branzburg v. Hayes, 408 U.S. 665 (1972).     As framed, the claim is

one of violation of appellants' individual "constitutional right to

freedom of speech, and in particular their freedom to impart

historically important information for the benefit of the American

public, without the threat of adverse government reaction."    They

support this with an assertion that production of the subpoenaed

interviews is contrary to the "confidentiality" they say they

promised to the interviewees.      They assert an academic research

privilege,20 to be evaluated under the same terms as claims of a

reporter's privilege.     See Cusumano v. Microsoft Corp., 162 F.3d

708, 714 (1st Cir. 1998) ("Academicians engaged in pre-publication

research should be accorded protection commensurate to that which

the law provides for journalists.").




     20
        The Supreme Court, for First Amendment purposes, has
distinguished between "academic freedom" cases, on the one hand,
involving government attempts to influence the content of academic
speech and direct efforts by government to determine who teaches,
from, on the other hand, the question of privilege in the academic
setting to protect confidential peer review materials. Univ. of
Pa. v. EEOC, 493 U.S. 182, 197-98 (1990).     We view appellants'
claim as falling into the second category. As such, it is far
attenuated from the academic freedom issue, and the claimed injury
as to academic freedom is speculative. Id. at 200.

                                 -32-
             Our analysis is controlled by Branzburg, which held that

the fact that disclosure of the materials sought by a subpoena in

criminal proceedings would result in the breaking of a promise of

confidentiality by reporters is not by itself a legally cognizable

First Amendment or common law injury. See 408 U.S. at 682, 690-91,

701. Since Branzburg, the Court has three times affirmed its basic

principles in that opinion.       See Cohen v. Cowles Media Co., 501

U.S. 663 (1991) (First Amendment does not prohibit a plaintiff from

recovering damages, under state promissory estoppel law, if the

defendant newspaper breaches its promise of confidentiality); Univ.

of Pa. v. EEOC, 493 U.S. 182 (1990) (First Amendment does not give

a university any privilege to avoid disclosure of its confidential

peer    review    materials   pursuant    to   an    EEOC   subpoena   in   a

discrimination case); Zurcher v. Stanford Daily, 436 U.S. 547

(1978) (First Amendment does not provide any special protections

for newspapers whose offices might be searched pursuant to a search

warrant based on probable cause to look for evidence of a crime).

             In Branzburg, the Court rejected reporters' claims that

the freedoms of the press21 and speech under the First Amendment,

or the common law, gave them the right to refuse to testify before

grand juries under subpoena with respect to information they

learned from their confidential sources.            The Court held that the

strong interests in law enforcement precluded the creation of a


       21
            No claim of freedom of the press is involved here.

                                   -33-
special rule granting reporters a privilege which other citizens do

not enjoy:

             Fair and effective law enforcement aimed at
             providing security for the person and property
             of the individual is a fundamental function of
             government, and the grand jury plays an
             important, constitutionally mandated role in
             this process. On the records now before us,
             we perceive no basis for holding that the
             public interest in law enforcement and in
             ensuring effective grand jury proceedings is
             insufficient to override the consequential,
             but uncertain, burden on news gathering that
             is said to result from insisting that
             reporters, like other citizens, respond to
             relevant questions put to them in the course
             of a valid grand jury investigation or
             criminal trial.

408 U.S. at 690-91; accord Cohen, 501 U.S. at 669.      The Branzburg

Court "flatly rejected any notion of a general-purpose reporter's

privilege for confidential sources, whether by virtue of the First

Amendment or of a newly hewn common law privilege."22 In re Special

Proceedings, 373 F.3d 37, 44 (1st Cir. 2004).       And as the Court

said in Zurcher,

             Nor are we convinced, any more than we were in
             Branzburg, that confidential sources will
             disappear and that the press will suppress
             news because of fears of warranted searches.
             Whatever incremental effect there may be in
             this regard if search warrants, as well as


     22
        The Branzburg Court "left open . . . the prospect that in
certain situations -- e.g., a showing of bad faith purpose to
harass -- First Amendment protections might be invoked by the
reporter." In re Special Proceedings, 373 F.3d 37, 45 (1st Cir.
2004) (citing Branzburg v. Hayes, 408 U.S. 665, 707-08 (1972)).
This suit does not fall within that premise. There is no plausible
claim here of a bad faith purpose to harass.

                                 -34-
             subpoenas,   are    permissible    in   proper
             circumstances,   it    does    not    make   a
             constitutional difference in our judgment.

436 U.S. at 566 (citation omitted).         As in Branzburg, there is no

reason to create such a privilege here.

             The Court rejected a similar claim of First Amendment

privilege in University of Pennsylvania.         The claim rejected there

was that peer review materials produced in a university setting

should not be disclosed in response to an EEOC subpoena in an

investigation      of   possible   tenure   discrimination.     The   Court

rejected the University's claims of First Amendment and of common

law privilege.      It also rejected a requirement that there be a

judicial finding of particularized relevance beyond a showing of

relevance.     493 U.S. at 188, 194.

             The   issue   of   defending    against   court   proceedings

requiring disclosure of information given under a promise of

confidentiality has come up in a variety of circumstances in this

circuit. Some cases involved underlying criminal proceedings as in

Branzburg.     See In re Special Proceedings, 373 F.3d 37 (1st Cir.

2004) (upholding order finding reporter in civil contempt for

refusing to reveal to a special prosecutor the identity of the

person who leaked a videotape in violation of a protective order

entered in a criminal proceeding).          One case did not invoke grand

jury or government criminal investigations, but rather a request

from criminal defendants.       United States v. LaRouche Campaign, 841


                                    -35-
F.2d 1176 (1st Cir. 1988) (upholding order finding television

network in civil contempt for refusing to comply with criminal

defendants' subpoena seeking "outtakes" of an interview with a key

government witness).23

            Two of our precedents dealt with claims of a non-

disclosure privilege in civil cases, in which private parties both

sought and opposed disclosure; as a result, the government and

public's strong interest in investigation of crime was not an

issue.    See Cusumano, 162 F.3d 708;24 Bruno & Stillman, Inc. v.

Globe Newspaper Co., 633 F.2d 583 (1st Cir. 1980).

            This case is closer to Branzburg itself, buttressed by

University of Pennsylvania, than any of our circuit precedent. The

Branzburg    analysis,   especially   as   to   the   strength   of   the

governmental    and   public    interest   in   not   impeding   criminal

investigations, guides our outcome.

            The fact that a U.S. grand jury did not issue the

subpoenas here is not a ground on which to avoid the conclusion

that Branzburg controls.       The law enforcement interest here -- a


     23
        As the Seventh Circuit recognized in McKevitt v. Pallasch,
339 F.3d 530, 532 (7th Cir. 2003), there is a circuit split on
whether under Branzburg there can ever be a reporter's privilege of
constitutional or common law dimensions.         This circuit has
recognized such a possibility in United States v. LaRouche
Campaign, 841 F.2d 1176, 1181-82 (1st Cir. 1988).
     24
        Even if Branzburg left us free, as we think it does not,
to engage in an independent balancing utilizing the test
articulated in our decision in Cusumano, we would still affirm, for
the same reasons.

                                   -36-
criminal investigation by a foreign sovereign advanced through

treaty   obligations     --      is    arguably    even    stronger      than   the

government's interest in Branzburg itself.                 Two branches of the

federal government, the Executive and the Senate, have expressly

decided to assume these treaty obligations.                 In exchange, this

country is provided with valuable reciprocal rights.               "The federal

interest in cooperating in the criminal proceedings of friendly

foreign nations is obvious."           McKevitt v. Pallasch, 339 F.3d 530,

532 (7th Cir. 2003).          The strong interests of both the United

States   government     and    the     requesting     foreign    government     is

emphasized by language in the treaty itself, which prohibits

private parties from attempting to block enforcement of subpoenas.

See US-UK MLAT, art. 1, ¶ 3.

           The Supreme Court in Branzburg stressed that "[f]air and

effective law enforcement aimed at providing security for the

person and property of the individual is a fundamental function of

government."      408 U.S. at 690.        "The preference for anonymity of

those confidential informants involved in actual criminal conduct

is   presumably    a   product    of    their     desire   to   escape    criminal

prosecution, and this preference, while understandable, is hardly

deserving of constitutional protection."              Id. at 691.        The court

also commented that "it is obvious that agreements to conceal

information relevant to commission of crime have very little to

recommend them from the standpoint of public policy." Id. at 696.


                                        -37-
In doing so, it relied on legal history, including both English and

United States history outlawing concealment of a felony.              Id. at

696-97.

             Branzburg    weighed    the    interests   against   disclosure

pursuant to subpoenas and concluded they were so wanting as not to

state a claim.25       The opinion discussed the situation, not merely

of   reporters   who     promised   confidentiality,    but   also   of   both

informants who had committed crimes and those innocent informants

who had information pertinent to the investigation of crimes.             The

interests in confidentiality of both kinds of informants did not

give rise to a First Amendment interest in the reporters to whom

they had given the information under a promise of confidentiality.

These insufficient interests included the fear, as here, that

disclosure might "threaten their job security or personal safety or

that it will simply result in dishonor or embarrassment."             Id. at

693.     If the reporters' interests were insufficient in Branzburg,

the academic researchers' interests necessarily are insufficient

here.

             It may be that compliance with the subpoenas in the face

of the misleading assurances in the donation agreements could have

some chilling effect, as plaintiffs assert.             This amounts to an



        25
        Branzburg also rejected arguments of First Amendment
protection based on a notion that the press was being used as an
investigative arm of the government, imposing burdens on it. 408
U.S. at 706-07.

                                     -38-
argument that unless confidentiality could be promised and that

promise upheld by the courts in defense to criminal subpoenas, the

research project will be less effective.26              Branzburg took into

account precisely this risk.         So did the Court in rejecting the

claim in the academic peer review situation in University of

Pennsylvania. See 493 U.S. at 188, 194. The choice to investigate

criminal activity belongs to the government and is not subject to

veto by academic researchers.

             We add that this situation was clearly avoidable.            It is

unfortunate that BC was inconsistent in its application of its

recognition     of    the   limits     of     its      ability    to    promise

confidentiality.      But that hardly assists the appellants' case.

Burns     Librarian   O'Neill   informed     Moloney    before    the   project

commenced that he could not guarantee that BC "would be in a

position to refuse to turn over documents [from the Project] on a

court order without being held in contempt."            In keeping with this

warning,     Moloney's   agreement    with    BC    directed     that   "[e]ach

interviewee is to be given a contract guaranteeing to the extent



     26
        McIntyre, but not Moloney, in his affidavit states that
neither he nor the people he interviewed would have participated in
the Belfast Project had they thought that the interviews would be
subject to disclosure before their deaths and without their
permission. Burns Librarian O'Neill states in his affidavit that
"[h]ad the assurances of confidentiality not been made, it is
doubtful that any paramilitary would have participated in this oral
history project. Their stories would have died with them, and an
opportunity to document and preserve a critical part of the
historical record would have been lost forever."

                                     -39-
American law allows           the conditions of the interview and the

conditions of its deposit at the Burns Library, including terms of

an embargo period if this becomes necessary" (emphasis added).

Despite Moloney's knowledge of these limitations, the donation

agreements     signed    by     the   interviewees    did    not    contain     the

limitation required to be in them by Moloney's agreement with BC.

             That failure in the donation agreement does not change

the fact that any promises of confidentiality were necessarily

limited by the principle that "the mere fact that a communication

was   made    in   express      confidence    .   .   .   does     not    create   a

privilege. . . . No pledge of privacy nor oath of secrecy can avail

against demand for the truth in a court of justice."                     Branzburg,

408   U.S.   at    682   n.21    (quoting     8   Wigmore,   Evidence       §   2286

(McNaughton rev. 1961)) (internal quotation marks omitted).

             To be clear, even if participants had been made aware of

the limits of any representation about non-disclosure, Moloney and

McIntyre had no First Amendment basis to challenge the subpoenas.

Appellants simply have no constitutional claim and so that portion

of the complaint was also properly dismissed.27


      27
        Appellants' intervention complaint raised the same claims
as their separate civil complaint. We have affirmed that there is
no cause of action under the treaty and under the Constitution, so
there is no need for us to consider whether the district court
acted within its discretion in denying appellants' motion to
intervene. Cf. In re Grand Jury Proceedings, 708 F.2d 1571, 1575
(11th Cir. 1983) (per curiam) (holding that the district court's
denial of a petition to intervene was harmless error because the
merits of the appellant's claim were eventually considered on

                                       -40-
                                 IV.

            We uphold the denial of the requested relief for the

reasons stated and affirm.    No costs are awarded.



           -- Opinion Concurring in the Judgment Follows --




appeal).

                                 -41-
              TORRUELLA, Circuit Judge (Concurring in the judgment

only).    I reluctantly concur in the judgment in this case, doing so

only because I am compelled to agree that the Supreme Court in

Branzburg v. Hayes, 408 U.S. 665 (1972), and subsequent cases has

most likely foreclosed the relief that the Appellants in these

consolidated appeals seek. I write separately to emphasize my view

that, while the effect of Branzburg and its progeny is to forestall

the result that the Appellants wish to see occur, none of those

cases supports the very different proposition, apparently espoused

by the majority, that the First Amendment does not provide some

degree of protection to the fruits of the Appellants' investigative

labors.       Cf. Branzburg, 408 U.S. at 681.           It is one thing to say

that    the    high   court     has   considered   competing    interests   and

determined that information gatherers (here, academic researchers)

may not refuse to turn over material they acquired upon a premise

of confidentiality when these are requested via government subpoena

in criminal proceedings. It is entirely another to eagerly fail to

recognize that the First Amendment affords the Appellants "a

measure of protection . . . in order not to undermine their ability

to gather and disseminate information."                 Cusumano v. Microsoft

Corp., 162 F.3d 708, 714 (1st Cir. 1998).

              "It is firmly established that the First Amendment's

aegis    extends      further    than   the    text's   proscription   on   laws

'abridging the freedom of speech, or the press,' and encompasses a


                                        -42-
range of conduct related to the gathering and dissemination of

information."       Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011).

Confidentiality or anonymity, where prudent, naturally protects

those who seek to collect or provide information.        Accordingly, it

is similarly well-settled that the First Amendment's protections

will at times shield "information gatherers and disseminators,"

from others' attempts to reveal their identities, unveil their

sources, or disclose the fruits of their work.            See Cusumano,

162 F.3d at 714; see also McIntyre v. Ohio Elections Comm'n,

514 U.S. 334, 342 (1995) (noting "an author's decision to remain

anonymous, like other decisions concerning omissions or additions

to the content of a publication, is an aspect of the freedom of

speech protected by the First Amendment"); Talley v. California,

362   U.S.    60,    64   (1960)   (noting   City's   ordinance    banning

distribution of handbills lacking names and addresses of authors

and distributors "would tend to restrict freedom to distribute

information and thereby freedom of expression"); United States v.

LaRouche Campaign, 841 F.2d 1176, 1182 (1st Cir. 1988) ("We discern

a lurking and subtle threat to journalists . . . if disclosure of

outtakes,     notes,      and   other   unused   information,     even   if

nonconfidential, becomes routine and casually, if not cavalierly

compelled.").

             The Appellants in these consolidated cases are academic

researchers and, as such, axiomatically come within the scope of


                                    -43-
these protections, as recognized by this Circuit's settled law.

See Cusumano, 162 F.3d at 714 ("The same concerns [that advise

extending First Amendment protections to journalists] suggest that

courts ought to offer similar protection to academicians engaged in

scholarly research."). It is also beyond question that the content

of the materials that the government wishes to obtain may properly

be characterized as confidential: the Appellants and the Belfast

Project's custodians have gone to great lengths to prevent their

unsanctioned disclosure.             See Maj. Op. at 6-7.              The question then

becomes one concerning the degree of protection to which they are

entitled.        The manner in which this inquiry unfolds necessarily

depends     on    context,        not    on    "semantics"       --     the    "unthinking

allowance" of discovery requests in these circumstances, we have

warned, will inevitably "impinge upon First Amendment rights."

Cusumano, 162 F.3d at 716 (quoting Bruno & Stillman, Inc. v. Globe

Newspaper        Co.,     633     F.2d   583,        595-96     (1st    Cir.    1980)).

Consequently, balancing the interests on either side of such a

request is both proper and essential.                         See id. ("[C]ourts must

balance the potential harm to the free flow of information that

might     result        against    the    asserted       need     for    the     requested

information." (quoting Bruno & Stillman, Inc., 633 F.2d at 595-

96)).

             Fortunately for this Court's panel -- but unfortunately

for the Appellants -- the Supreme Court has already done the lion's


                                              -44-
share of the work for us. Under the mutual legal assistance treaty

between the United States and the United Kingdom, the federal

government has assumed an obligation to assist the United Kingdom

in its prosecution of domestic criminal matters -- here, a homicide

-- to the extent permitted by U.S. law.     See UK-MLAT Technical

Analysis, S. Exec. Rep. No. 104-23, at 11 (noting "MLATs oblige

each country to assist the other to the extent permitted by their

laws, and provide a framework for that assistance").28

          In my view, the Appellants cannot carry the day, not

because they lack a cognizable interest under the First Amendment,


     28
         Appellants also claim that the Attorney General's actions
are not in compliance with the US-UK-MLAT, among other reasons,
because "the crimes under investigation by the United Kingdom were
of 'a political nature.'" Pursuant to Article 3, ¶ 1(c)(i) of the
treaty the United States may refuse assistance to the United
Kingdom's request if it relates to "an offense of a political
nature." Ignoring the underlying and pervasive political nature of
the "Troubles," as the Irish-British controversy has come to be
known in Northern Ireland, is simply ignoring one hundred years of
a well-documented history of political turmoil. These came into
focus when Ireland was partitioned, and six of its Ulster counties
were constituted into Northern Ireland as an integral part of the
United Kingdom by virtue of the Government of Ireland Act of 1920.
See generally Northern Ireland Politics (Arthur Aughley & Duncan
Morrow eds.) (1996). That the academic investigations carried out
by Appellants in this case, and the evidence sought by the United
Kingdom involve "offenses of a political nature" irrespective of
how heinous we may consider them, is borne out by the terms of the
Belfast Agreement (also known as the "Good Friday Agreement")
entered into by the Government of the United Kingdom and the Irish
Republican Army, whereby almost all prisoners were released by the
British government, including many who had been convicted of
murder. See Karl S. Bottigheirmer & Arthur H. Aughley, Northern
Ireland, Encyclopaedia Britannica (2007).        Unfortunately for
Appellants, they are foreclosed from pursuing their claim by virtue
of Article 1, ¶ 3 of the treaty, which prohibits private parties
from enforcing any rights thereunder.

                               -45-
but because any such interest has been weighed and measured by the

Supreme Court and found insufficient to overcome the government's

paramount concerns in the present context.

             Finally, with regards to the district court's denial of

the Appellants' motion to intervene as of right under Rule 24(a),

I harbor doubts as to whether Boston College could ever "adequately

represent" the interests of academic researchers who have placed

their   personal   reputations      on    the   line,    exposing    both   their

livelihoods and well-being to substantial risk in the process.

Because, for the reasons explained above, I am constrained to agree

that the Appellants are unable to assert a legally-significant

protectable interest, as Rule 24(a) commands, see Donaldson v.

United States, 400 U.S. 517, 531 (1971), any concerns I may have in

that regard are regrettably moot.           See Ungar v. Arafat, 634 F.3d

46, 51 (1st Cir. 2011) ("Each of [Rule 24(a)(2)'s] requirements

must    be   fulfilled;   failure    to    satisfy      any   of   them   defeats

intervention as of right.").




                                     -46-
