First Circuit Ruling on US Attorney Petition for Rehearing: Denied

United States Court of Appeals
For the First Circuit
No. 12-1236
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.
TRUSTEES OF BOSTON COLLEGE
Movant – Appellant
____________________________

Before
Torruella, Boudin* and Thompson,
Circuit Judges.

ORDER OF COURT
Entered: September 5, 2013

Appellee’s Petition for Rehearing is denied.

By the Court:
/s/ Margaret Carter, Clerk

cc:
Jeffrey Swope, James Cotter, III, Eamonn Dornan, Dina Chaitowitz, Randall Kromm, John McNeil

____________________________

*Judge Boudin did not participate in the consideration of this matter.

Case: 12-1236 Document: 00116578535 Page: 1 Date Filed: 09/05/2013 Entry ID: 5761299

Case Around Belfast Tapes Continues

Case Around Belfast Tapes Continues
By Eleanor Hildebrandt
News Editor
The Heights
Thursday, September 5, 2013

Editor’s Note: This story is part of an ongoing series about the subpoenas of the Belfast Project.

On Friday, May 31, the U.S. Court of Appeals for the First Circuit in Boston issued a ruling with regard to interviews from the Belfast Project, Boston College’s oral history project on the Troubles in Northern Ireland.

The interviews in question were subpoenaed in 2011 by the U.S. Department of Justice in pursuance with the Treaty Between the Government of the United States and the Government of the Kingdom of Great Britain and Northern Ireland on Mutual Legal Assistance on Criminal Matters, or Mutual Legal Assistance Treaty (U.S.-UK MLAT). UK authorities requested the tapes in connection with an investigation by the Police Services of Northern Ireland (PSNI) into the 1972 death of Jean McConville.

U.S. District Court Judge William G. Young, who originally reviewed the tapes to determine their relevancy to the McConville investigation, ordered that 85 of the interviews, conducted with seven former members of the Irish Republican Army (IRA), be turned over to the UK authorities. The University contested the decision, and Judge Juan R. Torruella of the First Circuit Court reexamined the subpoenas. Torruella determined that only 11 segments of the 85 interviews were relevant and needed to be released.

“[The district court] abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena,” Torruella said in the 29-page decision. He also stated that it was the duty of the courts, and not the federal government, to enforce, delay, or narrow the scope of subpoenas issued under MLAT.

“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,” said University Spokesman Jack Dunn in a statement. “This ruling represents a significant victory for Boston College in its defense of these oral history materials.”

After fighting the original subpoenas, BC has already handed over Belfast Project interviews from former IRA members Brendan Hughes and Dolours Price, both of whom are deceased.

Belfast Project director Ed Moloney, alongside Belfast Project researcher and former IRA member Anthony McIntyre, issued a joint statement shortly afterward in support of the ruling. “From the very outset of the serving of these subpoenas over two years ago we have striven to resist completely the efforts by the PSNI, the British Home Office and the U.S. Department of Justice to obtain any and all interviews from the Belfast Project archive at Boston College,” the statement read. “The [First Circuit Court] said that only interviews that deal directly with the disappearance of Jean McConville can be handed over as opposed to the indiscriminate consignment of the entire contents of interviews with eight of our interviewees. We see this judgement as at least a partial indictment of the whole process.”

Following the First Circuit Court’s decision, the U.S. Department of Justice was given until early August to decide whether or not to accept the ruling. Ultimately, a petition was filed with the U.S. Court of Appeals to rehear the decision. “On August 22 Boston College filed an opposition to the government’s petition to revise the appeals court decision,” Dunn said. “This is where the case stands now.”

The Department of Justice’s contestation of the appeals court decision was not the only issue that Belfast Project faced over the summer. On July 29, The Belfast Telegraph reported that BC was unable to locate a coded key identifying three of the seven interviewees whose tapes are still the subject of the ongoing subpoena case. Moloney, who had been interviewed for the piece, asserted that the coded keys had been delivered to BC’s archivists while the project was underway, suggesting that BC historians were to blame for losing the key. He stated that after moving to New York in 2001, partway through the project’s duration, he was no longer in contact with either interviewee contracts or identification keys. Moloney further said that the transport of those documents from Ireland to the U.S.—a transaction which, by virtue of its sensitivity, had to be carried out in person rather than via post or the Internet—was the responsibility of University personnel.

Two days later, Burns Librarian Robert O’Neill responded to Moloney’s allegation in a letter that was also published by The Belfast Telegraph. “As Ed Moloney well knows, the materials were not lost; rather, they were never received, in clear violation of his contractual obligation,” O’Neill said in the letter. “Ed Moloney has consistently deflected any blame from himself onto me and Professor Thomas Hachey at Boston College. He has made several false allegations against me. The Belfast Project was an opportunity to record the stories of paramilitaries, which otherwise would have been lost to posterity. It was a noble effort. It involved a great deal of work and risk for all concerned and it is sad to witness it devolve into a character assassination in which Ed Moloney refuses to accept responsibility for a project he himself was entrusted to manage.”

Moloney rejoined in an August 5 piece printed in the Telegraph, reiterating his statement that he was never in possession of the donor forms—the contracts that all Belfast Project participants were required to sign before being interviewed. “Dr. O’Neill now accuses me of ‘a clear contractual violation’ by not providing the donor forms,” Moloney said in the piece. “But, if Boston College was in any way concerned about any contractual violation, it failed to either raise the issue with me, or to take any action before the time limits expired for enforcing any obligations in 2012 … [BC] had the opportunity to complain of contractual breach as late as 2011 when the subpoenas were issued and it realised it did not have several donor agreements, but never once did so.” Moloney continued, repeating that as he was living in New York, O’Neill would have been responsible for handling the documents, and concluding that, “Since I never handled the forms, I could not lose them.”

The University maintains that Moloney is still obligated to identify the three participants in question, however. “Project Director Ed Moloney was contractually obligated to supply a key to Burns Librarian Robert O’Neill that identifies the interviewees,” Dunn said. “Boston College’s Attorney Jeff Swope contacted Mr. Moloney’s attorney after the May 31 court ruling to request that he fulfill his contractual obligation. Mr. Moloney has thus far declined the request.”

Opposition of Boston College to Government’s Petition for Panel Rehearing

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________________________________________________________________
No. 12-1236
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.
TRUSTEES OF BOSTON COLLEGE, ET AL.,
Movants – Appellants.

__________________________________________________________________
OPPOSITION OF BOSTON COLLEGE TO
GOVERNMENT’S PETITION FOR PANEL REHEARING
__________________________________________________________________

 

Appellants Trustees of Boston College and two of its representatives, Robert K. O’Neill, the Librarian of the John J. Burns Library at Boston College, and Boston College University Professor Thomas E. Hachey (collectively, “Boston College”), oppose the government’s Petition for Panel Rehearing, which the government styles as a request that this court modify its May 31, 2013 opinion in this appeal. By order dated August 8, 2013, this court directed Boston College to file this response….

PSNI receive Dolours Price interviews

PSNI receive Dolours Price interviews
Irish Republican News
7 July 2013

Confidential interviews with senior IRA figure Dolours Price have been handed over to British security forces, it has been confirmed.

The PSNI police in the north of Ireland said two detectives had e travelled to Boston to take possession of materials authorised by the United States Supreme Court.

“The officers will return to Northern Ireland to assess the material and continue with their inquiries,” a spokesman added.

It is thought the interviews may contain information which might be used by the PSNI against a number of republicans, including senior Sinn Fein figures.

Dolours was a former republican hunger-striker who became a bitter critic of Sinn Fein when the party encouraged the IRA to give up its weapons and joined a local devolved administration under British rule.

She clashed with party leader Gerry Adams in recent years over his denials that he had never been a member of the IRA.

The 62-year-old consistently had claimed that Mr Adams, now a Louth TD, had played a significant role in IRA actions, including the controversial killing of alleged informer Jean McConville.

She who died in January amid a trans-Atlantic legal battle over her interviews and after a long battle with post-traumatic stress disorder and depression.

The allegations are among those believed to be contained in an interview with Irish ‘researchers’ Anthony McIntyre and Ed Moloney, who were hired for the purpose by the American university.

The recordings were started in 2001 and were made on the condition that confidentiality would be guaranteed until after the death of the republicans and loyalists who took part.

McIntyre and Moloney failed to block the release of the tapes after the PSNI launched a high profile legal challenge to obtain the testimony. However, they said the eleven interviews which were ordered to be released to the PSNI are of limited value, and significantly reduced from a previous demand for 85 interviews.

The PSNI’s move to take possession of the tapes this weekend appeared designed to pre-empt a new legal challenge based on an internal British police report which found bias in the handling of historical cases by the PSNI’s Historical Enquiries Team (HET).

The Policing Board in the North has said it has no confidence in the leadership of the HET Team on foot of the damning report, which found British soldiers had received preferential treatment from investigators.

In a statement on Saturday, Moloney and McIntyre urged the Dublin and London governments “to suspend all criminal and non-criminal inquiries into the past until agreement has been reached by all parties on a credible way forward and a mechanism to deal with the past has been created in such a way that it commands widespread confidence and support”.

PSNI confirm securing Boston College tapes on Jean McConville’s murder

PSNI confirm securing Boston College tapes on Jean McConville’s murder
by Gemma Murray
News Letter
Published on the 07 July 2013

THE PSNI have confirmed that transcripts of interviews relating to the murder of IRA victim Jean McConville, carried out as part of a project at Boston College, are being handed over.

The PSNI had been attempting to obtain the transcripts of tapes recorded with IRA member Dolours Price, who died in January.

The transcripts are understood to contain information about the death and disappearance of the Belfast mother-of-10.

In a statement the PSNI said: “Two detectives from Serious Crime Branch have travelled to Boston to take possession of materials authorised by the United States appeal court as part of their investigation into the murder of Jean McConville.

The west Belfast mother was among dozens of people – later known as the Disappeared – who were abducted, murdered and secretly buried by republican militants during the Troubles.

The officers will return to Northern Ireland to assess the material and continue with their inquiries.”

The transcripts were made as part of Boston College’s ‘Belfast Project’, which was designed to be an oral history of Northern Ireland’s Troubles.

Project director, Ed Moloney, and his researcher, Anthony McIntyre, had resisted attempts by the PSNI to obtain the transcripts, and had hoped that the US Supreme Court would overturn a Boston Federal Court decision to hand the tapes over.

Ms Price was an unrepentant republican hard-liner who became a bitter critic of Sinn Fein when the party endorsed the Good Friday Agreement and encouraged the IRA to give up its weapons.

She clashed with party leader Gerry Adams in recent years over her allegations that he had been her IRA Officer Commanding during the early 1970s.

The 62-year-old consistently claimed that Mr Adams, now a Louth TD, had ordered the kidnap and killing of Mrs McConville in 1972.

Mr Adams has always denied being a member of the IRA.

She said she had made the claims in an interview with the American university academics who have compiled an oral history on Northern Ireland’s 40-year conflict.

The recordings were started in 2001 and were made on the condition that confidentiality would be guaranteed until after the death of the republican and loyalist paramilitaries who took part.

Price, the former wife of actor Stephen Rea, was convicted and jailed along with her sister Marian for the 1973 attack on London’s Old Bailey courts in which one man died and more than 200 people were injured.

She spent eight years in jail including several weeks on hunger strike before being released in 1980.

Federal Court Rules that Subpoenas are Its Domain, Boston College Still Directed to Comply

Federal Court Rules that Subpoenas are Its Domain, Boston College Still Directed to Comply
Higher Education Highlights – Summer 2013
JD Supra Law News
by James D. Taylor and Nichole C. Alling

University lawyers are well-accustomed to responding to broad reaching and burdensome subpoenas.

Many are mundane, requiring little substantive work, but occasionally the subpoena touches on more important issues and principles.

That is precisely what happened recently in the First Circuit Court of Appeals.

There, the court held 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.” United States of America v. Trustees of Boston College, No. 12-1236 (1st Cir. May 31, 2013).

The decision – which comes after years of dispute between Boston College and the United States government over the government’s August 2011 subpoena seeking oral histories collected by Boston College for the school’s “Belfast Project” – further clarified the role of the federal courts in the enforcement of subpoenas and rejected the government’s position that courts have no discretion under 18 U.S.C. § 3512 and the US-UK MLAT (a 1996 Treaty between the United States and the United Kingdom on mutual legalassistance in criminal matters) to review subpoenas issued pursuant to the US-UK MLAT.

The government’s August 2011 subpoena resulted from a request by the UK to the U.S. government pursuant to the US-UK MLAT for assistance in investigating the 1974 disappearance of a woman in Belfast, and sought to gain access to Boston College’s Belfast Project materials to help it do so.

Of specific interest were a number of interviews and testimonies of former participants in the oft-violent independence movement in Northern Ireland, which were a part of the numerous oral histories that comprised the Belfast Project.

Due to strict confidentiality agreements with the interviewees, Boston College closely monitored use of the project materials and restricted access for research and study purposes.

It was not surprising then that Boston College filed a motion to quash the government’s August 2011 subpoena.

But the college’s request was denied and the District Court of Massachusetts ordered the production of 85 Belfast Project interviews.

Boston College appealed that decision, which led the First Circuit Court of Appeals to consider the federal courts’ constitutional position to review and control the process of executing a subpoena request.

Reviewing both the language of the US-UK MLAT and the constitutional role and reasoning behind the U.S.’s tri-furcated balance of powers, the Court of Appeals rejected the government’s position that only the Attorney General, and not the courts, could review subpoenas issued pursuant to the US-UK MLAT.

According to the court, if its conclusion were other-wise, federal courts would be no more than “rubber stamps for commissioners appointed pursuant to the treaty” and subpoenas issued by the executive branch would be “automatically enforced by the courts” in such a way that the executive branch would “virtually exercise judicial powers.”

That, the court found, would be contrary to the constitution.

After finding it had discretion to review enforcement of the August 2011 subpoena, the court then found that the subpoena materials were to be reviewed under an “ordinary standard of relevance,” declining Boston College’s request that review be under a heightened “direct relevance” standard.

Nevertheless, the court held that the district court abused its discretion by directing the production of certain Belfast Project materials irrelevant to the government’s August 2011 subpoena.

Exercising its “inherent judicial function,” the court reduced the number of oral histories ordered for production from 85 to 11.

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:

Britain to See Less of Irish Rebel Interviews

Britain to See Less of Irish Rebel Interviews
By JACK BOUBOUSHIAN
Courthouse News Service
Friday, June 07, 2013

(CN) – The 1st Circuit reined in the reach of a subpoena that would give the United Kingdom access to Boston College’s confidential interviews with former Irish Republic Army fighters.

In December 2011, a federal judge ruled that Boston College must hand over confidential interviews it collected from former Irish Republican Army paramilitary fighters to the United Kingdom.

The interviews were conducted as part of an oral history project called the Belfast Project, and interviewees were given a guarantee of confidentiality “to the extent American law allows.”

The U.K. specifically subpoenaed the interviews of Brendan Hughes and Dolours Price, two former IRA volunteers, as well as “any and all interviews containing information about the abduction and death of Mrs. Jean McConville.” McConville was abducted and killed by the IRA in 1972 for allegedly informing on Republican activities to the British.

The college complied with the requests for documents related to Hughes because he died in 2008, but went to court to maintain the confidentiality it promised to Dolours Price.

U.S. District Judge William Young ordered disclosure of 85 of 170 interviews after reviewing the confidential transcripts in chambers. His order noted a “paucity of information” related to McConville’s disappearance.

Price died in January 2012 as Boston College appealed the decision.

Though the university argued that Price’s death rendered the investigation moot, the 1st Circuit disagreed.

“Dolours Price’s death does not have any decisive effect upon these proceedings because their subject matter is not, and has never been, solely Dolours Price’s individual prosecution. Rather, these proceedings are a part of a broad investigation into the death of Mrs. McConville,” Judge Juan Torruella wrote for the three-judge panel.

In a partial reversal of the underlying, the panel said “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.”

After a detailed review, the court ordered Boston College to produce only 11 of the 85 interviews.

“Although a number of interviewees provide information relevant to the subject matter of the subpoena and that the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena,” the 29-page opinion states.

“The order is reversed as to the other interviews, which need not be released,” Torruella wrote.

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.