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.

Government’s Motion to Extend the Time To File a Petition for 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 OF AMERICA,
Petitioner, Appellee
v.
TRUSTEES OF BOSTON COLLEGE,
Movant, Appellant.

GOVERNMENT’S MOTION TO EXTEND THE TIME
– TO JULY 30, 2013 –
WITHIN WHICH TO FILE A PETITION FOR REHEARING
AND/OR REHEARING EN BANC

The United States of America respectfully moves this Court to extend the time in which it must file any petition for rehearing and/or petition for rehearing en banc to July 30, 2013. In support of this request, the undersigned Assistant U.S. Attorney states the following:

1. This was the movant’s appeal from the district court’s orders directing the production of documents pursuant to government subpoenas.

2. On May 31, 2013, the Court affirmed the orders in part and reversed them in part.

3. Pursuant to FRAP 35 and 40, any petition for panel rehearing or petition for rehearing en banc is required to be filed within 14 days.

3. The government must obtain approval from the Solicitor General to seek or not to seek en banc rehearing. Additional time is needed for this decision to be made, and for the government to prepare any petition.

4. Accordingly, the government requests that this Court extend the time within which it must file any petition for panel rehearing and/or petition for rehearing en banc to July 30, 2013.

For these reasons, the government respectfully requests that the Court allow this motion.

Respectfully submitted,
CARMEN M. ORTIZ
United States Attorney
By: /s/ Randall E. Kromm
RANDALL E. KROMM
Assistant U.S. Attorney

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.

College only has to hand over interview segments

College only has to hand over interview segments
Claire Simpson
THE IRISH NEWS
TUESDAY JUNE 4 2013

This ruling represents a significant victory for Boston College in its defence of these oral history materials – Boston College statement

A US college behind a landmark Troubles project only has to give the PSNI segments of interviews with former IRA members, following a court ruling.

The US Court of Appeals said Boston College should hand over only tapes and transcripts that are directly relevant to the investigation into the 1972 disappearance of Jean McConville.

The judgment means that of 85 interviews with former IRA members, the college has to release 11 relevant segments.

Dozens of recordings were made as part of confidential interviews with former IRA members and loyalists in the Boston College-based Belfast Project, between 2001 and 2006.

The PSNI has demanded tapes and transcripts of some of the interviews because they believe they may contain details about the murder and abduction of one of the Disappeared, Belfast mother-of-10 Mrs McConville.

One of the former IRA members interviewed was Old Bailey bomber Dolours Price, who died in January.

Price and another former IRA member, the late Brendan Hughes, have claimed that Mrs McConville’s murder and burial were ordered by Gerry Adams, now Sinn Fein President.

The Sinn Fein TD has repeatedly denied the allegations.

In a statement released yesterday, the college said it was satisfied by the Court of Appeals ruling on Friday. “We are pleased with the Appeals Court ruling that affirms our contention that the District Court erred in ordering the production of 74 interviews that were not relevant to the subpoena,” it said.

“This ruling represents a significant victory for Boston College in its defence of these oral history materials.”

In a joint statement, Belfast Project researchers Ed Moloney and Anthony McIntyre also welcomed the ruling.

“The court instead 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 judgment as at least a partial indictment of the whole process,” it said.

“Doubtless elements in the security apparatus in Northern Ireland and their allies in Britain were looking forward to a show trial in which almost the entire panoply of IRA violence during the Troubles would be the subject of proceedings in a Belfast courtroom.

“Now, that is not going to happen and to be sure there will be disappointment in these circles.”

First Circuit Trims Subpoenas of College’s IRA Interviews

First Circuit Trims Subpoenas of College’s IRA Interviews
Sheri Qualters
The National Law Journal
06-03-2013

A federal appeals court has ruled that Boston College need not release 74 transcripts of interviews from an oral history project about political organizations associated with the Northern Ireland “Troubles.”

The U.S. Court of Appeals for the First Circuit partially vacated District of Massachusetts Judge William Young’s January 2012 order and held that Boston College must only release 11 of the 85 contested transcripts of interviews with former Irish Republican Army (IRA) members.

The case centered on the U.S. government’s August 2011 subpoenas to Boston College, issued at the behest of British authorities under a mutual legal assistance treaty. The caption is 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.

The subpoenas sought any information related to the 1972 abduction and death of Jean McConville in any interview material held by the school. McConville is believed to have been a British government informant against republican extremists.

Last July, a First Circuit panel rejected two researchers’ separate appeal to quash the August subpoena and one issued that May. The panel held that the researchers had no private right of action under the treaty.

The panel’s latest ruling, handed down on Friday, affirmed in part and reversed in part Young’s December 2011 order denying the school’s motion to quash and his subsequent 2012d order to release the interviews. Judge Juan Torruella wrote the opinion, joined by Judge O. Rogeriee Thompson. Judge Michael Boudin heard oral argument but did not participate in the opinion.

“After carefully reviewing each of the materials in question, we find that 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,” Torruella wrote.

Jeffrey Swope, a Boston partner at Edwards Wildman Palmer who argued for the school, said he was pleased that court took time to carefully review the transcripts. “[The court] spent a huge amount of effort to read all these transcripts and protected academic research that wasn’t relevant to the matter under investigation,” he said.

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

The Boston U.S. Attorney’s Office did not respond to a request for comment.

Appeals Court ruling in BC’s ‘Belfast Project’ case termed ‘significant victory’ for univesity

Appeals Court ruling in BC’s ‘Belfast Project’ case termed ‘significant victory’ for univesity
By Ed Forry
Boston Irish Reporter
June 3, 2013

The US First Circuit Court of Appeals has issued “a significant victory for Boston College in its efforts to protect the confidentiality of research materials in the Belfast Project,” a BC spokesman told the BIR

On Friday, May 31 the Court ruled that the District Court abused its discretion in ordering the production of interview materials that were not relevant to the second subpoena, issued in August 2011, which sought information on the 1972 disappearance of Belfast resident Jean McConville.

In offering the opinion, Judge Juan Torruella stated: “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.”

As a result, the Appeals Court ruled that Boston College must release only 11 segments of the 85 interviews with 7 former IRA members that the District Court had deemed relevant. The 74 other interviews will remain confidential until the death of the participants.

Boston College spokesman Jack Dunn Isaid in a statement, “We are pleased with the Appeals Court ruling that 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.”

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.

PSNI preparing to seek possession of some Boston College tapes

PSNI preparing to seek possession of some Boston College tapes
US court rules that only tapes relating to murder of Jean McConville can be released
Simon Carswell, Gerry Moriarty
Irish Times
Mon, Jun 3, 2013

A US court ruling has paved the way for the PSNI to begin formal moves to gain copies of the Boston College tapes relating to the 1972 abduction and murder of Jean McConville.

On Friday, the US appeals court ruled that only interviews dealing directly with the murder of the Belfast mother of 10 could be turned over by Boston College to police in Northern Ireland.

Now the PSNI is preparing to retrieve the relevant tapes so it can press ahead with its investigation into the murder of Ms McConville, one of the “disappeared” whose body was found on a Co Louth beach in 2003. “Detectives are making plans to take possession of the material and proceed with their inquiries,” a police spokesman said yesterday evening.

The US court ruling means that recordings of 11 confidential interviews with seven individuals, including former IRA members, will be surrendered to the US authorities and eventually handed over to the PSNI.

This reduces the amount of information the US courts had previously ordered the college to surrender from its Belfast Project archive of interviews with IRA figures.

A US district court in Boston had ordered the college to hand over 85 wide-ranging interviews with eight people carried out to create an archive at the university to assist historians and researchers studying the Troubles.

Boston College appealed the ruling that it turn over these interviews for their eventual transfer to the UK authorities as requested in August 2011 under the McConville investigation.

Former IRA members gave interviews to journalist and author Ed Moloney and historian Anthony McIntyre, himself a former IRA member, on the basis that the recordings would be kept private until the interviewees had died.

In a joint statement, Mr Moloney and Dr McIntyre said the judgment meant that “a mere 13 per cent” of what the district court had initially ordered would be surrendered and that this was “at least a partial indictment of the whole process”.

In April the US Supreme Court declined to hear an appeal from the two men to block the release of interviews with the late Dolours Price, who was jailed for the IRA bombing of the Old Bailey in 1973.

Ms Price had separately claimed Mr Adams was her Belfast commanding IRA officer at the time of the Old Bailey bombings. She said he was also her OC when she was part of an IRA team that drove Ms McConville across the Border and ultimately to her death. Mr Adams has repeatedly denied these claims.

The US appeals court had previously found that Mr Moloney and Dr McIntyre had no right to interfere with the police request for information under a treaty between the US and the UK that requires mutual assistance in criminal investigations.

The appeals court said in its judgment on Friday the college had handed over interviews with Ms Price, who died in January, and another Provisional IRA member, Brendan Hughes, who died in 2008.

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.”