LETTER: Senator Menendez told Congressional Hearing Needed into Eric Holder’s UK MLAT Subpoenas

ANCIENT ORDER OF HIBERNIANS
BREHON LAW SOCIETY
IRISH AMERICAN UNITY CONFERENCE

June 8, 2013

Honorable Robert Menendez
Chairman, Foreign Relations Committee
U. S. Senate
SD-444
Washington, D. C. 20510

Dear Chairman Menendez:

This will serve to follow-up our letter of March 20th regarding the British use of the U.S.-U.K. Mutual Legal Assistance Treaty (MLAT) to obtain records from the Irish archives of Boston College.

We hope you will reiterate to Secretary of State Kerry the same concerns you expressed to Secretary Clinton about the British subpoenas.

We believe it is time for the Senate Foreign Relations Committee to undertake a comprehensive look at the progress being made in fully implementing the 1998 Belfast Agreement between the U.K. and Ireland, and in the workings of the U.S.-U.K. MLAT amended and signed on December 16, 2004 and ratified by the Senate in May, 2008 (Exec. Rept.110-13).

The former treaty, called the Good Friday Agreement (GFA), has been supported by three U.S. Presidents, by Congress, and by the American taxpayer, but has not been critically examined in any detail in terms of its achievements or difficulties.

The more recent MLAT treaty has been the subject of legal challenges related to the British request for documents at Boston College.

We believe that in the instance of this British subpoena, the Cameron government has misused or been duped into a political use of the MLAT which was to be primarily dedicated to the ongoing prosecution of major transnational crimes related to money laundering, drug, or human trafficking, or terrorist investigations.

As we have previously indicated, the Committee on the Administration of Justice in N.I. has provided substantial documentation to the Commission on Security and Cooperation in Europe of how exactly the British have undermined the goals of key ‘justice’ provisions of the GFA.

Not only have they failed to fully cooperate as in the Dublin-Monaghan bombings, but they are actively covering up the crimes intended to be investigated by the Historical Enquiries Team.

And in a supreme act of hubris, the Cameron government unilaterally dismissed a solemn obligation of the U.N. registered Treaty to allow a public inquiry into the murder of attorney Patrick Finucane.

Sir Jeremy Heywood, the Cabinet Secretary, questioned how this could be indicating, “[T]his was a dark moment in the country’s history…..far worse than anything that was alleged in Afghanistan.”

It is our position that Britain’s actions, with respect to these justice provisions in the 1998 Belfast Treaty and the 2011 MLAT request for documents from Boston College, reflects a nation that is committed neither to the letter nor spirit of treaty requirements.

Why indeed would Prime Minister Cameron use a treaty intended primarily for ongoing investigations of major terrorist and money laundering crimes to seek records of dubious value for a killing 40 years earlier while the British Army was violently crushing the N.I. civil rights movement?

We hope the Committee can explore whether this subpoena request has more to do with political smear and malice than with a burning desire for the rule of law.

Moreover, we believe the Committee should clarify whether Congress ever intended for the MLAT to be used to trample constitutional liberties and permit the corruption of law in the process.

This vigilance is necessary.

Ms. Jane Winter of Human Rights Watch, an independent NGO, recently stated:

“Friends in N.I., the U.S., and the Republic shouldn’t take their eye off the ball [the GFA] …especially those in the U.S. who made …[the Agreement] … possible and kept it alive. Their scrutiny is vital to insuring that N.I. doesn’t slip back into undeclared war.”

Former Senator George Mitchell stated it more succinctly at a public symposium in NYC recently: “It is not over!”

As you know, the Chairs of the Ad Hoc Committee on Irish Affair and the Friends of Ireland have recently expressed similar concerns for progress on the peace pact and the mischievous nature of the MLAT request.

We hope the Committee will consider these issues and choose to shed more light on the subject with public hearings.

If there are any questions or we can provide further information, please do not hesitate to contact us.

As always we will be happy to meet at any time to discuss this further.

We have attached our most recent letters to Attorney General Holder and Secretary Kerry.

Sincerely,

Mr. Brendan Moore
National President
Ancient Order of Hibernians

Mr. Sean Downes Esq.
President
Brehon Law Society

Mr. Thomas J. Burke Jr. Esq.
National President
Irish American Unity Conference

cc: Senator Bob Corker, R.M.

LETTER: Secretary of State John Kerry Asked to Intervene on Boston College Subpoenas

ANCIENT ORDER OF HIBERNIANS
BREHON LAW SOCIETY
IRISH AMERICAN UNITY CONFERENCE

June 5, 2013

Mr. John Kerry
Secretary of State
Office of the Secretary
U. S. Department of State
2201 C St NW
Washington, D. C 20520

Dear Secretary Kerry:

As you know, the litigation challenge to the British subpoena request for records held in the Irish archives of Boston College is near an end.

However, Britain’s misuse of the Mutual Legal Assistance Treaty and the broader policy implications if the subpoena request is granted are still of great concern to us.

As Chairman of the Senate Foreign Relations Committee you were the first Member of Congress to register objections to the sealed subpoenas with Attorney General Holder and with your predecessor Secretary of State Clinton.

Your fears for the Irish peace process, progress on the Belfast Agreement, truth and reconciliation, academic inquiry and constitutional liberties are as valid now as they were when you expressed them in January, 2012.

This is an American issue.

It is in America’s best interest to not enforce but return the subpoenas to the United Kingdom.

At a recent congressional hearing, Representative Chris Smith, the Co-Chair of the Commission on Security and Cooperation in Europe, spoke of Britain’s refusal to hold anyone accountable for the murder of Patrick Finucane stating, “…the decision not to proceed with the public inquiry is a glaring public breach of faith …calling into question the British government’s commitment to peace and reconciliation.”

Indeed, Mr. Secretary, you have correctly identified this subpoena issue as another example of how Britain is slowly and systematically disassembling the Belfast Treaty.

These are but two of many examples of how the Cameron government is abusing America’s trust, mocking our commitment to the Belfast Agreement and damaging our credibility with other nations.

During Secretary Clinton’s term we met twice on this issue with State officials.

Mr. Jake Sullivan and Mr. William Gill were present but were unable or unwilling to answer our most basic questions.

They seemed unfamiliar with the progress of the Irish peace process and were unfamiliar with any of the reports of the Committee for the Administration of Justice which depict in great detail how Great Britain is observing neither the letter nor the spirit of the 1998 Belfast Agreement (as amended).

We hope that your familiarity with this issue and long association with the workings of the peace process will mean a fresh examination of the facts and a fresh approach.

As you know, the Secretary of State has a key role to play in any U.S. response to a Mutual Legal Assistance Treaty (MLAT) request, and your objections to the satisfaction of these Boston College subpoenas must be weighed by Attorney General Holder before complying and submitting any documents obtained by him.

We include our letter to the Attorney General citing what we view is a misuse and misapplication of the treaty’s purpose particularly where it conflicts with the spirit of the 1998 Agreement and representations made to you in the Senate during ratification of the U.S.-U.K. Extradition Treaty in 2006.

Your former colleagues in Congress who also have joined the subpoena opposition reflect our determined attempt to garner bi-partisan support to stop their enforcement.

Indeed, the Co-Chairs of the Ad Hoc Committee of Irish Affairs, Representatives Chris Smith and Peter King, as well as the Co-Chairs of the Friends of Ireland, Representatives Richard Neal and Joseph Crowley, have recently adopted resolutions reiterating their concerns for the Good Friday Agreement and citing the failure of the British government to abide by its terms particularly with respect to the Finucane murder.

Neal and Crowley have specifically expressed their opposition to the subpoenas and their potential to undermine the Irish peace process.

Last year many Member of Congress voiced their opposition to the Russian killing of attorney Sergei Magnitsky and then affirmed their commitment to the rule of law and justice by adopting statutory sanctions against those identified as responsible.

Such a measure may not be necessary in the Finucane case but America can underscore its commitment to the Irish peace process, the rule of law and justice by withholding any support of the MLAT subpoena request unless and until the Good Friday Agreements terms are respected and fulfilled.

We renew our request to meet at any time to discuss this further or answer any questions you may have.

Sincerely,

Mr. Brendan Moore
National President
Ancient Order of Hibernians

Mr. Sean Downes Esq.
President
Brehon Law Society

Mr. Thomas J. Burke Jr. Esq.
National President
Irish American Unity Conference

LETTER: Irish American Groups Against Subpoenas Want Action From Eric Holder

ANCIENT ORDER OF HIBERNIANS
BREHON LAW SOCIETY
IRISH AMERICAN UNITY CONFERENCE

June 4, 2013

Mr. Eric H. Holder Jr.
Attorney General
Office of the Attorney General
U. S. Department of Justice
950 Pennsylvania Ave. NW
Washington, D. C. 20510

Dear Attorney General Holder:

The litigation challenging the U.K. subpoena of records in the Irish archives of Boston College is at an end. The First Circuit Court of Appeals severely restricted the scope of the Mutual Legal Assistance Treaty (MLAT) subpoena of the British government. This is a partial vindication of the litigants appeal and a rejection of the rubber-stamping of the subpoena request by your Department.

We have argued that the subpoena request of Britain is a misuse of the MLAT process which you must reject pursuant to three justifications provided for in the ratification documents.

Those reasons are:

• To grant the request would impair the essential interests of the U.S.;
• To do so would be contrary to important policy considerations; and
• The request is based on an offense of a political character.

Secretary of State Kerry has publicly specified that to grant the request would undermine the 1998 Belfast Agreement and representations made during the Senate ratification of the 2006 U.S.-U.K. Extradition Agreement.

The Secretary also expressed concern for the threat the subpoenas posed to constitutional freedoms and academic inquiry.

With respect to the political character of this request, you need only reference the decisions of federal jurist Naomi Rice Buchwald, Judge Juan Torruella of the First circuit Court of Appeals as well as British policy in effect in 1972.

In addition to the above considerations, we believe granting England’s request after their admission of murdering attorney Patrick Finucane offends every American’s sense of the rule of law and justice.

We again ask for you to reject the MLAT request.

We again ask to meet with you to discuss this matter further.

We hope and trust you will have the courtesy to dignify our request and promptly respond to our arguments with specificity.

Sincerely,

Mr. Brendan Moore
National President
Ancient Order of Hibernians

Mr. Sean Downes Esq.
President
Brehon Law Society

Mr. Thomas J. Burke Jr. Esq.
National President
Irish American Unity Conference

 

 

Court Releases Only Some BC Interviews from ‘Belfast Project’

Court Releases Only Some BC Interviews from ‘Belfast Project’
By Brett Snider, Esq.
June 11, 2013
FindLaw First Circuit News and Information Blog

In a decision penned in late May, the First Circuit ordered the release of a limited amount of interviews from the “Belfast Project” to the British authorities.

The “Belfast Project” is a Boston College compilation of personal interviews and testimonials from former Irish Republican Army members, and in 2011 the British government successfully subpoenaed BC for 85 of those taped interviews and transcripts for a criminal investigation.

The Court only released 11 of the interviews, in an interesting conflict of United States-United Kingdom treaty and academic integrity.

Academic Privilege

The First Circuit made no bones about saying that the “academic privilege” or breaking of confidentiality by responding to a criminal subpoena is “not by itself a cognizable First Amendment or common law injury.” Branzburg v. Hayes, a Supreme Court case, established that even reporters cannot use the aegis of theFirst Amendment to deny a grand jury subpoena or answering questions for a criminal investigation.

Branzburg seems to apply here, and the First Circuit agrees; a criminal investigation over possible murder trumps a First Amendment privilege to keep your sources confidential.

The Treaty

The subpoena was made under the power of the US-UK Mutual Legal Assistance on Criminal Matters Treaty (US-UK MLAT) of 1996, which empowers the UK to have the U.S. provide “documents, records, and evidence.”

The government argued that only the Attorney General has the power to deny a request under US-UK MLAT, but the Court rejected this argument, stating that enforcing subpoenas is “an exercise in judicial power,” much like the Ninth Circuit did with a US-Russia MLAT.

A treaty can’t undo the federal court’s power to review and enforce subpoenas, and it would be an imbalance in powers to allow the Attorney General plenary discretion in this area.

Only Relevant Interviews

The subpoena in question requested information relevant to the abduction and death of Mrs. Jean McConville, a woman who was an alleged casualty of the 1970s-era struggle between the IRA and the British government in Ireland.

After re-reviewing these interview tapes in camera, the In re Dolours Price Court found that only 11 of the taped interviews were relevant to the subpoena, and denied the subpoena with respect to the other 74, citing abuse of discretion.

Whether this will seriously implicate any of the subjects on the tape in a crime remains to be seen, but the BC researchers see this as a victory, knowing that British and Northern Ireland authorities will not get the ‘show trial’ of IRA members that they wanted, reports The Boston Globe.

Related Resources:

• Boston College Wins a Victory in Legal Fight Over Oral-History Records (The Chronicle of Higher Education)
• SCOTUS Denies Cert. in Boston College IRA Subpoena Case (FindLaw’s U.S. 1st Circuit Blog)
• Justice Breyer Grants BC Researchers Stay in IRA Recording Case (FindLaw’s U.S. 1st Circuit Blog)
• BC Researchers Argue Ask Court to Block IRA Tape Release (FindLaw’s U.S. 1st Circuit Blog)

Chris Bray: Boston College Wins Victory For Recovering Ground Given Up

Boston College Wins Victory For Recovering Ground Given Up
Chris Bray
7 June 2013

The journalists are mostly wrong. A federal appeals court decision in Boston this week is a victory, of sorts, but not for oral history. Neither is it much of a victory for Boston College, which filed the appeal. In the end, the university merely protected confidential archival material that its own curious negligence put at risk. (Read the First Circuit’s complete opinion here.)

First, the real victory. The case involved a set of federal subpoenas for oral history materials archived at Boston College’s Burns Library. The interviews in question were conducted with former members of the Irish Republican Army after the Belfast Agreement produced peace in Northern Ireland, and the subpoenas were the product of a request from the British government. The Police Service of Northern Ireland claims to be conducting a murder investigation, looking for the IRA members who killed Belfast resident Jean McConville in 1972. The date of this long-ignored murder should be a first clue about the credibility of the effort. (See this 2011 blog post for a detailed description of the questionable politics behind the subpoenas.)

In a series of audacious legal briefs, the Department of Justice informed the federal courts that they had no authority to interfere with subpoena requests from foreign governments. Mutual legal assistance treaties are creatures of the executive branch, federal lawyers argued, and so must be approved by judges without question or examination. (See, for example, pg. 8 of this July, 2011 brief.) The courts reacted with predictable hostility to this attempt to make the judiciary a subordinate branch of government.

“In substance,” this week’s First Circuit opinion reads, “we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States.”

This is the victory: a sharp rejection of the fetish for unbounded executive authority that marks an unfortunate area of continuity between the Bush and Obama administrations. In the future, foreign fishing expeditions into academic archives will be examined by the courts, which have refused to simply serve as a rubber stamp for federal prosecutors.

Unfortunately, though, that examination will be of limited value. While the First Circuit did narrow the range of archival material to be delivered to police in Northern Ireland, they did so only on the grounds that much of the material ordered to be sent overseas by the district court was simply not germane to the subpoenas. The appeals court did not reject the principle that foreign governments may compel the disclosure of confidential academic research material from American universities; rather, the court simply declared that the archival material delivered to those foreign governments must be the material that is actually sought.

And this is where the curious nature of BC’s victory becomes clear. A set of subpoenas delivered to the university and its archivists in August, 2011 demanded interview material directly related to the murder of Jean McConville. That’s all that was subpoenaed — the U.S. Attorney’s Office in Boston was not seeking a broader range of information on the IRA.

So take a look at this December, 2011 letter from Boston College’s lawyer in the case, Jeffrey Swope, to the docketing clerk for the district court in Massachusetts. On pg. 2, Swope acknowledges that the district court judge “reminded Boston College of its responsibility to identify specific interviews that it has determined to be germane.” But on pg. 1 of the same letter, Swope reports that Boston College is delivering to the court every one of the IRA interviews in its possession, so that the court may perform in camera review of the materials and determine which of the interviews are germane to the subpoenas.

Simply put, Boston College gave up interviews it did not have to give up. Many more publicly available court documents make this case, which I argued in detail — with documentation — in this 2011 blog post.

The district court judge ordered Boston College to deliver to the U.S. Attorney’s Office in Boston a set of interview materials that were not germane to the subpoena, and BC then won an appellate decision releasing them from that overly broad obligation. But the district court judge never asked for the materials that weren’t germane to the subpoenas in the first place. Boston College dumped its entire set of archived IRA interviews on the court because of its own refusal to identify only those materials that were actually subpoenaed. Having imposed on the judge the task of making an unnecessary in camera review of material that was not subpoenaed, the university then went to the First Circuit with the argument that the judge mishandled the task they had dumped in his lap.

Winning a legal appeal, Boston College succeeded in preventing the disclosure of material that they turned over to the federal courts after it wasn’t subpoenaed. They took back ground they gave up. That’s quite a victory.

The bottom line is that the federal courts have clearly maintained the right of foreign governments to take confidential research material from American universities. It’s hard to see where the good news is in that decision.

A Partial Win For Boston College And Academic Freedom

A Partial Win For Boston College And Academic Freedom
By Charles P. Pierce
The Politics Blog
Esquire
JUN 6, 2013

Here at the blog, we’ve been keeping an eye on the brawl between Boston College and the law-enforcement communities of Great Britain and Northern Ireland — and, shamefully, too many parts of our own government — over the British attempts to pry loose the oral histories gathered under the auspices of BC’s Belfast Project, an attempt to compile an authoritative account of the violence in Northern Ireland throughout the last 30 years of the 20th Century. This week, it seems, BC won at least a piece of a victory. A federal appeals court ruled that the college must hand over only 11 of the 85 documents sought by the governments of the U.S, and the U.K. in what continues to look like a fishing expedition by the latter.

In Friday’s ruling, a three-judge panel of the U.S. Court of Appeals for the First Circuit agreed that the lower court had gone too far. “After a detailed review of the materials in question, we find that the district court abused its discretion in ordering the production of several of the interviews which, after an in detail reading of the same, do not contain any information relevant to the August 2011 subpoena,” the First Circuit panel concluded. It said that Boston College must release only 11 out of the 85 interviews originally subpoenaed.

As should be plain from the other news of the day, a lot of what we took for granted about this country goes up for grabs every time somebody yells, “terrorist,” loudly enough. A lot of what the U.K. people are about in this case appears to be an attempt by irreconcilables in law-enforcement to embarrass, among other people, Gerry Adams, the Sinn Fein leader — and suspected IRA commander — who now sits in Parliament, to the great consternation of a lot of people who know a lot of cops. This court has just required those cops to work harder, and it has told American scholars that, for now, they can conduct their business free from government snoopery. Unless, of course, they happen to do it on their Verizon cellphones, then all bets are off.

Court of Appeals says Boston College must release 11 confidential interviews with former IRA members

Court of Appeals says Boston College must release 11 confidential interviews with former IRA members
REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
Jeff Zalesin
Reporter’s Privilege
June 5, 2013

Boston College must turn over 11 confidential interviews with former Irish Republican Army members for an investigation of a 40-year-old murder case in Northern Ireland, but a lower court was wrong to tell the college to release 74 others, the U.S. Court of Appeals in Boston (1st Cir.) ruled last week.

“After a detailed review of the materials in question, we find that the district court abused its discretion in ordering the production of several of the interviews” because those recordings were not relevant to the federal government’s subpoena, Judge Juan Torruella wrote in the court’s opinion.

The circuit court reasoned that the 11 remaining tapes were relevant because they related to the disappearance and death of Jean McConville, a Belfast mother of 10 and suspected U.K. informant who was murdered by the Provisional IRA in 1972. The Justice Department subpoenaed the college in 2011, on behalf of the British government under a treaty, for all records connected to the McConville case.

The interviews in question were collected as part of The Belfast Project, a Boston College oral history program on the violent struggle over Northern Ireland. Former IRA members spoke with researchers on the condition that the interview recordings would remain confidential until the deaths of the subjects.

The college argued that since confidential research is part of a process that produces constitutionally protected academic speech, the court should show “heightened sensitivity” in this case and uncover only documents that are “directly relevant” to the subpoena.

The court rejected this reasoning and concluded that an ordinary relevance standard was appropriate because the case was controlled by the U.S. Supreme Court’s decision in Branzburg v. Hayes. The Branzburg opinion concluded the First Amendment did not provide reporters a privilege to avoid testifying before a criminal grand jury proceeding. The “directly relevant” standard for subpoena enforcement applies only to cases that are distinguishable from Branzburg, the First Circuit ruled.

The First Circuit, in reviewing whether the lower court overstepped its bounds in releasing so many interviews, concluded that federal courts ultimately are responsible for overseeing the enforcement of subpoenas issued under the U.S.-U.K. treaty that drew the American government into the McConville investigation.

“In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States,” Torruella wrote.

Most states now have so-called shield laws to protect reporters from subpoenas that interfere with their ability to collect and publish news, but academic researchers generally are not covered by that statutory protection, and those shield laws would not apply in federal court.

In an earlier case over Belfast Project materials, Boston College researchers tried to get a subpoena quashed by arguing that the interviews were shielded by a First Amendment academic research privilege similar to the reporter’s privilege, but the First Circuit disagreed. The Reporters Committee for Freedom of the Press submitted an amicus brief late last year urging the U.S. Supreme Court to accept review of the case, which the high court in April ultimately declined to do.

Transcript: Appeals court restricts release of Boston College tapes: RTE interview with Anthony McIntyre

Appeals court restricts release of Boston College tapes
Anthony McIntyre, lead researcher for the Belfast Project and former IRA member, comments on the ruling which restricts the number of tapes to be released to 11
RTÉ Radio 1
Morning Ireland
4 June 2013

Click here to listen to interview

Fran McNulty (FM) interviews Anthony McIntyre, (AM) the Lead Researcher for the Boston College oral history archive known as The Belfast Project, about the recent appellate court decision concerning the subpoenas issued by the Police Service of Northern Ireland (PSNI) to the college to obtain information from the archive.

Fran McNulty (FM): The Appeals Court has ruled that the number of interviews contained in the controversial Boston College archive to be handed over to the PSNI should be reduced. A previous court had ordered eight-five recordings be handed over. The appeals court has said just eleven should.

The US Department of Justice has one month to appeal the ruling.

Anthony McIntyre is a former IRA member. As an academic and journalist he interviewed many people for The Belfast Project at Boston College. We spoke earlier this morning and I first asked him if he viewed the court ruling as good news.

Anthony McIntyre (AM): Well it’s certainly news that is welcome but limited. I don’t see it as a victory. I see it as minimising the extent of the defeat – of the loss.

The fact that anything would be handed over to British authorities is a loss and nothing changes that.

FM: These eleven interviews or recordings which are to be handed over and all of them…are we now of the belief that they are exclusively relating to the disappearance of Jean McConville?

AM: The court has ruled that there are references to Mrs. McConville in those interviews and that therefore they are responsive to the subpoena as a result of it.

FM: What about the McConville family who up to now have said that this is only right and just that they should be handed over. Are you beginning to turn to their way of thinking on this in any manner?

AM: No I am not but I can understand their position. I represent a different constituency. I represent a different ethic. I think that it poses a major threat to the ability of journalists and academics and researchers and historians to gain the type of necessary insight into the past which would enable society to have a better understanding of that past.

I think that we’ve now reached a situation whereby law enforcement will tell us what the past is. We will get a very sanitised version of law enforcement’s role in the past.

No, I think it’s a very, very dangerous road to go down. I do believe that the McConville family and the rest of the families have that right to truth recovery. I don’t see how we can oppose that right. The problem is now there is going to be a massive reduction in the amount of truth that can ever be recovered because people will be fearful.

FM: But this is a project which you yourself lead and these are assurances which you yourself gave to the people you interviewed.

AM: I don’t ever try to minimise my culpability but the assurances that I gave to the people were given only and exclusively on the basis of what Boston College instructed me to give. But I cannot deny or nor do I wish to deny my role in this and I feel very, very disappointed in the outcome.

But I behaved in a proper fashion. I gave the undertakings to the interviewees that Boston College themselves had written up on their headed note paper.

FM: Can I talk to you about these eleven interviews?

A number of weeks ago here on RTÉ Ed Moloney, who worked with you deeply on this project, said that there was the possibility that there could be other interviews with Dolours Price in this archive. Other interviews other than the interview you conducted with Dolours Price which could shed light on the disappearance of Jean McConville. Is it your understanding that those other interviews could be part of these eleven now to be released?

AM: The eleven interviews that the First Circuit has ruled on to be handed over are separate from the Dolours Price interviews and that includes my interviews with Dolours Price.

The interesting aspect in this ruling is that had Boston College appealed the initial Dolours Price verdict they would have prevented her interviews being handed over because in her interviews with me there was no reference to Mrs. McConville.

FM: On the issue of appeals we spoke to Boston College last night. It said it would be reviewing the matter and considering all of its legal options before it responds to this court ruling.

But the Department of Justice in the US could also appeal this particular ruling. Would you have a concern that could happen?

AM: I have a concern that anything that could be handed over – anything that weakens the case against hand over, anything that strengthens the hand of the Department of Justice – is detrimental and is not to be welcomed.

I do not know if the Department of Justice will put in an appeal. Nor do I know if Boston College will put in an appeal.

I imagine it would be difficult for the Department of Justice to argue to the Supreme Court of America that judges have no right to rule on subpoenas; that the justices in the court system are merely rubber stamps.

And I think that the judge who wrote the verdict up, Judge Torruella, was very strong on this. He slapped the Department of Justice down for having such an arrogant attitude.

FM: Anthony McIntyre, one of the interviewers for The Belfast Project at Boston College.

Win for Oral History

Win for Oral History
Jun 03, 2013
Inside Higher Education
By Scott Jaschik

A federal appeals court on Friday handed an important victory to scholars — especially those who engage in or rely on oral history — by reducing from 85 to 11 the number of oral history interviews Boston College must provide to British authorities.

In doing so, the appeals court rejected (as it did in an earlier review of the case) the idea that confidential materials collected for scholarship were entitled to a heightened level of protection from outside subpoenas than would be most other documents. But the U.S. Court of Appeals for the First Circuit said that some “balancing” of conflicting rights could still be in order, and rejected the U.S. government’s contention that there was no need for a court review of the appropriateness of the the subpoenas.

“[W]e rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States,” said the ruling.

And the appeals court then did just that, reviewing the requests for the 85 documents that a lower court had ordered turned over. Only 11 of those records, the appeals court found, were relevant enough to law enforcement needs to justify turning them over. Because both the lower court and the appeals court reviewed the individual records privately, and the decisions in the case don’t disclose why the appeals court decided to order some records but not others turned over, Friday’s decision refers to interview subjects by letters (A, B, C and so forth) and is deliberately vague on the subject matter of the interviews.

Chris Bray, a historian who has written extensively on the case, called the decision “very important” because the appeals court “sharply narrowed the archival material to be handed over” and “aggressively rejected” the Department of Justice’s argument that the courts need not review the subpoenas.

The papers at issue are oral history interviews — held in Boston College’s library — that make up what is known as the Belfast Project. The interviews are of figures involved in the violence in Northern Ireland during “the Troubles,” a period from the 1960s through the 1980s. Many of the interview subjects agreed to discuss the roles they played (not all of which may have been legal) based on the idea that they thought the interviews would remain confidential during their lifetimes or for other specified periods of time. British authorities are still investigating some of the incidents of that period, and sought to have the U.S. government subpoena them under the terms of a treaty between Britain and the United States on mutual assistance on crime fighting. British officials have said that they believe the interviews may point to the culpability of specific individuals in violent crimes.

Due to the subject matter of the interview subjects, the case has attracted attention from scholars in the United States, Britain and Ireland. But the questions about oral history’s legal status go well beyond topics such as the violence in Northern Ireland. Subjects of oral history interviews routinely seek confidentiality for specified periods of time, so that they can talk frankly about political rivalries, personal matters and a range of other issues. And researchers in disciplines beyond history in which scholars need to grant confidentiality to interview subjects have also been concerned about the precedent of the government enforcing a broad subpoena against Boston College. The American Sociological Association backed those trying to protect the confidentiality of the records.

Courts have never granted oral history the same confidentiality rights as discussions someone has with a lawyer or member of the clergy. Some courts have suggested more deference for academic-related records than Boston College’s oral history records ever were granted.

But Bray said that they key victory here is that a very broad request for documents (initially for 170 records) was first cut by one court to 85 and then by the appeals court to 11. Many researchers said that the broad nature of the British government requests made them particularly threatening to oral history. If such broad requests were granted, without court review, they said, people would have been particularly reluctant to tell their stories to historians for fear someone could subpoena the records.

Boston College issued a statement praising the ruling. “We are pleased with the appeals court ruling which affirms our contention that the district court erred in ordering the production of 74 interviews that were not relevant to the subpoena. This ruling represents a significant victory for Boston College in its defense of these oral history materials,” said the statement.

The Justice Department has not announced whether it will appeal the ruling.

Susan Michalczyk, president of the American Association of University Professors at Boston College, said via e-mail that “11 interviews is better than 85″ in terms of what may be given up. But she said that “the principle of the issue remains.” The AAUP at the college has been asking administrators for more information about how the original agreement was made to house to oral history interviews, and whether more could have been done to protect confidentiality. Michalczyk said that, to date, faculty members do not believe they have received satisfactory answers, and that they will continue to push.

AP, Fox News not isolated First Amendment controversies for DOJ

AP, Fox News not isolated First Amendment controversies for DOJ
By Alex Lazar and Jordy Yager
The Hill
06/02/13

The AP and Fox News controversies are not isolated First Amendment incidents for President Obama’s Department of Justice (DOJ).

There is an ongoing legal case that raises the same protection-of-sources-issues that have been debated in the media firestorm surrounding the DOJ’s pursuit of AP and Fox News sources.

The DOJ a couple of years ago subpoenaed interviews obtained by researchers hired by Boston College as part of its “Belfast Project.”
The Belfast Project was designed to conduct and archive oral interviews with people who were directly affected by “The Troubles,” a time period that spans from the late 1960s though the late 1990s in which violent conflict erupted between British-controlled Northern Ireland and the Republic of Ireland.

Those interviewed by Boston College-hired researchers Ed Moloney and Anthony McIntyre were promised that their remarks would not be released to the public until the interviewees had died, for fear that they would face prosecution charges. Moloney is an award-winning Irish journalist.

Senate Foreign Relations Committee Chairman Robert Menendez (D-N.J.) has said that releasing the interviews “could have the effect of re-opening fresh wounds…”

This position, however, did not sit well with some North Irish families that had relatives who were either kidnapped or killed. One well-known case is that of Helen McKendry, whose mother, Jean McConville, was kidnapped and murdered by members of the Provisional Irish Republican Army (IRA) in 1972.

The British government asked the United States for assistance with this matter under the Mutual Legal Assistance Treaty (MLAT), which allows for cooperation between two or more foreign governments during criminal investigations that have transnational implications. The Obama administration agreed, sparking outcry from First Amendment advocates.

Amid the recent AP and Fox News controversies, Obama administration officials have defended their handling of protecting national-security-secrets while also stressing their strong commitment to the First Amendment. But critics of the administration say the Boston College case undercuts those claims.

Sean Hughes, a spokesman for the Ancient Order of Hibernians in America, an Irish Catholic men’s organization, said, “If DOJ is for the press and the First Amendment then why did they let the Boston College subpoena go through for two journalists doing research on the ‘Troubles?’”

The first set of subpoenas were issued for interviews conducted with Dolours Price and Brendan Hughes. Price was an accomplice in McConville’s kidnapping and murder while Hughes was a former Officer Commanding of the IRA’s Belfast Brigade. Hughes was already dead at the time the subpoena was issued, but Price was still alive. Boston College officials did not want to initially turn over her interviews to the Police Services of Northern Ireland at Britain’s request.

Instead, the interviews were given to U.S. District Judge William G. Young with the intent that they would be reviewed and that the judge would eventually quash the subpoena. Young, however, declared that the British were right in requesting the documents. This left Moloney and McIntyre to challenge the subpoena as individuals in front of the First Circuit Court of Appeals. The First Circuit, as well as the Supreme Court after that, denied Moloney and McIntyre’s challenge to the subpoena.

A second set of subpoenas was issued by Young for additional interviews relating to McConville’s death, for which Boston College did decide to issue a challenge. On Friday, the First Circuit released its final decision in which 11 out of 85 interviews must be turned over.

In April, Boston College Press Secretary Jack Dunn said, “We chose not to appeal the district court’s ruling on the first subpoena involving Delours Price’s interview because we felt there was no grounds for appeal. Our focus remains on our appeal of [Judge William Young’s] ruling regarding the second set of subpoenas, which remains before the First Circuit Court of Appeals.”

Even though it has not received as much media attention as the DOJ controversy involving the wiretapping of journalists from the AP as well as the labeling of Fox News Chief Washington Correspondent James Rosen by Attorney General Eric Holder as a “co-conspirator,” the Boston College case has still hit a nerve with First Amendment advocates.

Harvey Silverglate, a criminal defense and civil liberties litigator who has written extensively on the Boston College case, says that potential fines could have been one factor in the university’s decision to not initially challenge the subpoena. “In theory, a judge can bankrupt the richest newspaper or broadcasting company in the country,” notes Silverglate. “The nature of civil contempt is that it can impose unlimited escalating fines.”

Holder has said recently that he never actually intended to prosecute Rosen, though he had to knowingly sign off on labeling him as a co-conspirator in order to obtain those conversations.

Peter Carr, a DOJ spokesman, defended the department’s handling of the Boston College case: “The United States has been complying with our treaty obligations to assist this criminal investigation.”

Judge Juan Torruella, with the First Circuit Court of Appeals, stated in the court’s decision 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 (or researchers) is not by itself a legally cognizable First Amendment or common law injury.”

Although it’s not certain Boston College would have been fined for refusing the British government’s request, it would be of little surprise if officials did not want to take the risk. “You can’t put a newspaper in jail,” says Silverglate. “But you can bankrupt it.”

While the attorney general may know what course of action he will take once he signs off on a warrant, those being wiretapped or labeled as co-conspirators will surely not. Silverglate blames Holder.

“Someone should explain to the attorney general that the press plays a role in national security; they can find things out that the government doesn’t always know about and have in the past voluntarily postponed certain publications,” argues Silverglate.

Others, however, don’t blame Holder entirely.

Jonathan M. Albano, a partner at Bingham McCutchen LLP and a co-counsel for Moloney and McIntyre, thinks that the majority of the blame should lie at the feet of Congress and the courts. “This is the responsibility of the courts and Congress and they contributed to this problem,” says Albano. “For Congress to say that it’s shocked by these subpoenas is the height of hypocrisy.”

Moloney and McIntyre released a statement in reaction to Friday’s First Circuit’s decision. While they were pleased with the reduction in documents that needed to be handed over, they nonetheless gave a stinging critique of the Obama administration.

“And in the context of the Obama White House’s current intolerable assault on journalistic and media rights in the United States, the cooperation of the U.S. Justice Department in this disgraceful exercise deserved more condemnation and opposition from American academe than it ever got,” said Moloney and McIntyre. “Indeed the silence from that quarter during the last two years was almost deafening.”