Boston College Case – Papers Filed for En Banc Hearing

BOSTON COLLEGE CASE – PAPERS FILED FOR EN BANC HEARING
Press Statement From Ed Moloney and Anthony McIntyre
August 20th, 2012

Eamonn Dornan and James J Cotter, attorneys for Ed Moloney and Anthony McIntyre, have today filed papers in the First Circuit Court of Appeal seeking a rehearing en banc* of a July 6th decision by a First Circuit panel affirming a lower court’s decision ordering Boston College to hand over archived interviews with former IRA activists on foot of subpoenas from the Police Service of Northern Ireland (PSNI), facilitated by the Mutual Legal Assistance Treaty (MLAT) between the United States and the United Kingdom.

The court also refused Moloney and McIntyre permission to intervene in the case, thereby preventing them from presenting evidence objecting to the decision by the US Attorney-General, Eric Holder to issue the MLAT subpoenas.

The application is based on a number of issues of great public interest and constitutional importance, not least that one effect of the First Circuit decision is to give foreign law enforcement agencies greater power over US citizens in respect of subpoenas than could ever be exercised by domestic agencies.

The First Circuit decision effectively precludes the assertion of U.S. constitutional rights guaranteed in the First and Fifth Amendments to the Constitution. In the case of the Boston College archives the Constitution guarantees, prior to the enforcement of the subpoena, the consideration of the free flow of historical documents to the American public and the protection of Ed Moloney and Anthony McIntyre – and their interviewees – against the deprivation of life, liberty or property without due process of law.

Ed Moloney and Anthony McIntyre’s lawyers are arguing that the MLAT bestows upon the PSNI greater powers in relation to the serving of subpoenas in the United States than could be exercised by, for instance, the FBI. U.S. citizens could challenge a subpoena served by the FBI on First and Fifth Amendment grounds but are precluded from doing so in the case of subpoenas served by foreign powers under an MLAT. Sixty-two countries have signed MLAT’s with the U.S., some of which have poor human rights records.**

Their lawyers will also argue, inter alia, that the First Circuit panel conflicts with Supreme Court rulings in the landmark judgement, Branzburg v. Hayes in as much as that case permitted journalists to seek First Amendment protection against subpoena powers in order to demonstrate bad faith on the part of the requesting authority.

In this case the plaintiffs, Ed Moloney and Anthony McIntyre have been prevented by the First Circuit decision from arguing that the PSNI action is politically motivated and that the material requested by the PSNI was available in Northern Ireland. Their lawyers argue that Moloney and McIntyre have been denied their constitutional and statutory rights and protections and suffer violations of constitutional rights if the subpoenas are enforced by the Attorney-General.

Eamonn Dornan and James J Cotter also argue that because this is a case of first impression, as the First Circuit panel recognized, a re-hearing is warranted.

Appellant Petition for Panel Hearing or Rehearing En Banc

* An en banc hearing takes place in front of the full appeal court.
** Full list of countries which have signed MLAT’s with the US

 

NOTE ON MLATS:

The US enacted MLATs with 62 countries during the years 1981 to 2010. The US State Department has also noted human rights problems in many of these same countries. The US Bureau of Democracy Reports on Human Rights Practices for 2011 notes a range of problems such as impairing freedom of the press (Argentina), violence against women and children (Bulgaria), violence against religious minorities (Egypt), government interference in elections (Russia), government harassment of the media and journalists (Venezuela).
Source

Countries that the US has MLATs with and reports of human rights problems from the US Bureau of Democracy, Country Reports on Human Rights Practices for 2011

Argentina 2004 (date treaty went into effect)
The principal human rights problems included use of excessive force by police, sometimes resulting in deaths; actions that risk impairing freedom of the press; and continuing infringements on the rights of indigenous people.
Other human rights problems included poor prison conditions, including mistreatment of some prisoners; occasional arbitrary arrest and detention; prolonged pretrial detention; continued concerns about judicial efficiency and independence; official corruption; domestic violence against women; child abuse; sex trafficking and forced labor, primarily within the country; and child labor.
Judicial authorities prosecuted a number of officials who committed abuses during the reporting period; however, some officials engaged in corruption or other abuses with impunity.

Bulgaria 2010
The marginalization of the Romani minority remained Bulgaria’s most pressing human rights problem. Also of note was right-wing extremist violence against Roma, Muslims, and other religious minorities. Corruption continued to be a drag on the government’s capabilities and public confidence in the judiciary and other state institutions.
Other human rights problems included harsh conditions in prisons and detention facilities, including overcrowding. Mistreatment of prisoners and detainees, especially members of minorities, was also alleged. There were also long delays in the judicial system; apparent abuse of wiretapping; violence and discrimination against women; violence against children; discrimination against members of the Romani and Turkish ethnic minorities; anti-Semitic vandalism; trafficking in persons; and discrimination against persons with disabilities, against lesbian, gay, bisexual, and transgender persons, and persons with HIV/AIDS.

Egypt 2001
The most significant human rights problems during the year were attacks on demonstrators, violence against religious minorities, the use of military courts in civilian cases, and arbitrary arrest, especially as permitted under the Emergency Law. Authorities harassed and pursued a broad-based investigation of nongovernmental organizations (NGOs) and their staff; state media and government figures branded many civil society activists “traitors” in a campaign against foreign funding of civil society groups. Security forces and civilian thugs attacked demonstrators during the year; these attacks, along with clashes among opposing groups of demonstrators, killed at least 930 persons. Beginning on January 28, authorities arrested and tried approximately 12,000 civilians in military courts that lacked fundamental due process procedures for offenses ranging from “thuggery” to “insulting the military.” The SCAF expanded the Emergency Law, in place almost continuously since 1967, to include broad offenses such as “causing internal tensions.” Under the Emergency Law, citizens were subject to arbitrary arrest and detention and unfair judicial procedures, although the transitional authorities primarily applied the code of military justice, rather than the Emergency Law, against demonstrators during the year.
Other human rights problems included physical abuse and torture by security forces, poor prison conditions, and governmental restrictions on freedom of expression, assembly, and association. Authorities detained journalists and bloggers for criticizing the military. The previous government severely restricted Internet freedom when it cut connections to telecommunication networks during the peak of antigovernment demonstrations. After the revolution security forces, including military police, used excessive force to disperse protesters and specifically harassed female protesters. Authorities continued to enforce onerous restrictions on non-Muslims establishing and repairing places of worship, and non-Muslims were targets of government and societal violence. The government continued to shoot African migrants attempting to cross the Sinai Desert en route to Israel. Domestic violence and societal discrimination against women was widespread.

Russia
The most significant human rights problems during the year involved:
1. Violations of Democratic Processes: Parliamentary elections were held in December; domestic and international observers described these elections as marked by government interference, manipulation, electoral irregularities, and restrictions on the ability of opposition parties to organize, register candidates for public office, access the media, or conduct political campaigns.
2. Administration of Justice and Rule of Law: Individuals who threatened powerful state or business interests were subjected to political prosecution, as well as to harsh conditions of detention. The conditions of prisons constituted a major violation of the human rights of many prisoners, who were subjected to poor medical care, lack of basic human needs, and abuse by prison officials. These conditions at times resulted in death. The government did not take adequate steps to prosecute or punish most officials who committed abuses, resulting in a climate of impunity. Rule of law was particularly deficient in the North Caucasus, where the conflict between the government and insurgents, Islamist militants, and criminal forces led to numerous human rights abuses by security forces and insurgents, who reportedly engaged in killing, torture, physical abuse, and politically motivated abductions. In addition the government of Ramzan Kadyrov in Chechnya continued to violate fundamental freedoms, engage in collective retribution against families of suspected militants, and foster an overall atmosphere of fear and intimidation.
3. Freedom of Expression: While there was free expression on the Internet and in some print and electronic media, self-censorship and the government’s ownership of and pressure on some print and most broadcast media outlets limited political discourse. Some journalists and activists who publicly criticized or challenged the government or well-connected business interests were subject to physical attack, harassment, increased scrutiny from government regulatory agencies, politically motivated prosecutions, and other forms of pressure. Attacks on and killings of journalists and activists occurred, and a number of high-profile cases from previous years remained unsolved. During the December Duma elections, Web sites that published reports of electoral fraud were disabled by distributed denial of service (DDoS) attacks.
Other problems observed during the year included physical abuse of conscripts by military officers; restrictions on the right to free assembly; widespread corruption at all levels of government and law enforcement; violence against women and children; trafficking in persons; xenophobic attacks and hate crimes; societal discrimination, harassment, and attacks on religious and ethnic minorities and immigrants; societal and official intimidation of civil society and labor activists; discrimination against lesbian, gay, bisexual, and transgender (LGBT) persons; limitations on the rights of workers..

Venezuela 2004
The principal human rights abuses reported during the year included government actions to impede freedom of expression and criminalize dissent. The government harassed and intimidated privately owned television stations, other media outlets, and journalists throughout the year, using threats, fines, property seizures, targeted regulations, and criminal investigations and prosecutions. The government did not respect judicial independence or permit judges to act according to the law without fear of retaliation. The government used the judiciary to intimidate and selectively prosecute political, union, business, and civil society leaders who were critical of government policies or actions. Failure to provide for the due process rights, physical safety, and humane conditions for inmates contributed to widespread violence, riots, injuries, and deaths in the country’s prisons.
In addition, the following human rights problems were reported by nongovernmental organizations (NGOs), the media, and in some cases the government itself: unlawful killings, including summary executions of criminal suspects; torture and other cruel, inhuman, or degrading treatment; prison violence and harsh prison conditions; inadequate juvenile detention centers; arbitrary arrests and detentions; corruption and impunity in police forces; corruption, inefficiency, and politicization in a judicial system characterized by trial delays and violations of due process; political prisoners; interference with privacy rights; restrictions on freedom of expression; corruption at all levels of government; threats against domestic NGOs; violence against women; anti-Semitism in the official media; trafficking in persons; violence based on sexual orientation and gender identity; and restrictions on workers’ right of association.