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.”

Boston College Wins a Victory in Legal Fight Over Oral-History Records

Boston College Wins a Victory in Legal Fight Over Oral-History Records
By Jennifer Howard
The Chronicle of Higher Education
June 2, 2013

Boston College has won a significant victory in its legal fight to keep sensitive oral-history records confidential. On Friday, a federal appeals court ruled that the college must hand over only 11 out of 85 records subpoenaed by the U.S. government on behalf of British authorities.

At stake is material from the Belfast Project, which from 2001 to 2006 collected oral histories from participants in the Troubles, Northern Ireland’s long-standing sectarian conflict. Boston College holds the project’s tapes and transcripts. Participants were guaranteed confidentiality, and some scholars have worried that the case might have a chilling effect on oral-history work.

The legal battle has centered on whether government attempts to prosecute criminal activity trumps researchers’ need to protect sources and sensitive material. The British authorities have been especially interested in Belfast Project records that might shed light on the death of Jean McConville, an Irish mother of 10 who was kidnapped and murdered in 1972.

In August 2011, the U.S. Justice Department, acting under a mutual-legal-assistance treaty, subpoenaed all the Belfast Project records on behalf of Britain. The college tried to have the subpoena quashed but the U.S. District Court in Boston ordered the institution to surrender 85 interviews. The college appealed the order. (In response to an earlier subpoena, it has already handed over two other sets of interviews with Dolours Price and Brendan Hughes, two members of the Provisional Irish Republican Army who have both died since the Belfast Project collected their stories.)

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.

A Boston College spokesman, Jack Dunn, said the college was pleased with the ruling. It “affirms our contention that the district court erred in ordering the production of 74 interviews that were not relevant to the subpoena,” Mr. Dunn said in a written statement. “This ruling represents a significant victory for Boston College in its defense of these oral-history materials.”

It’s not clear yet whether either side will take further legal action in response to the First Circuit court’s decision. Mr. Dunn told The Chronicle via e-mail that “this was a favorable ruling, but we will take the time to review all of our legal options.”

Two Belfast Project researchers, Ed Moloney and Anthony McIntyre, also issued a statement in response to the ruling. The government attempts to get hold of the Belfast Project records represented “a flagrant abuse of the legal process,” they said. They noted that the court had ruled against “the indiscriminate assignment” of all Belfast Project material and “instead said that only interviews that deal directly with the disappearance of Jean McConville can be handed over,” the researchers said in the statement. “We see this judgment as at least a partial indictment of the whole process.”

But they also took the opportunity to criticize the Obama administration and the Department of Justice, along with the American academic establishment. “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,” Mr. Moloney and Mr. McIntyre said in the statement. “Indeed the silence from that quarter during the last two years was almost deafening.”

Boston College claim a victory in court battle over Belfast Project

Boston College claim a victory in court battle over Belfast Project
Federal Appeals Court greatly reduces number of interviews British acesss
By IrishCentral Staff Writers
IrishCentral
Published Sunday, June 2, 2013

A federal appeals court on Friday greatly reduced the number of interview recordings from the Belfast Project, an oral history project on the Irish Troubles, that Boston College must turn over to British authorities, who are investigating the 1972 killing of Belfast woman Jean McConville.

Boston.com reports that Judge Juan R. Torruella of the US Court of Appeals for the First Circuit in Boston wrote, in a 29-page ruling, that only 11 of the 85 interviews that a lower court ordered the college to release to the British authorities were relevant to the murder investigation and had to be surrendered.

McConville was murdered by members of the Provisional Irish Republican Army, who suspected her of being an informant.

In 2011, federal prosecutors in Boston issued a subpoena on behalf of authorities in the UK for all materials from the Belfast Project, an archive of interviews with former IRA members and other militia groups who fought during the Troubles, dealing with McConville’s death.

The participants in the project gave the interviews believing the recordings would be kept confidential until they died.

The judge said the appeals court found that “the district court abused its discretion in ordering the production of several of the interviews … .” The panel ruled out turning over a significant number of the interviews because they “do not contain any information relevant” to the subpoena.

Jack Dunn, a Boston College spokesman, said: “Today’s court ruling affirms our contention that the district court abused its discretion in ordering a significant number of interviews that were not relevant to the second subpoena. We will review the decision over the next several weeks to best determine our legal options.”

The two lead researchers voiced support for the ruling in a joint statement released Friday.

“We see this judgement as at least a partial indictment of the whole process,” said the researchers, Ed Moloney and Anthony McIntyre.

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

First Circuit Court Rules On Belfast Project

First Circuit Court Rules On Belfast Project
Only 11 Of 85 Interviews Determined Relevant To McConville Killing
By Eleanor Hildebrandt
News Editor
The Heights
Published: Saturday, June 1, 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 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 death of Jean McConville, an Irish widow and mother of 10, in 1972.

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 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 Friday that only 11 of the 85 interviews were relevant and needed to be turned over.

“[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 is 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 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.”

Dunn said in a statement to The Boston Globe that the University would review the decision and consider its legal options over the next few weeks.

US court reduces number of Boston College tapes to be handed to PSNI

US court reduces number of Boston College tapes to be handed to PSNI
Sinead O’Carroll
thejournal.ie
June 1 2013

Police in Northern Ireland investigating the kidnapping and murder of mother Jean McConville have fought for the tapes for a number of years.

A US APPEALS court has ordered that the PSNI be given access to only a limited number of interviews held on tapes included in Boston College’s oral history project on The Troubles.

The First Circuit ruled that only those that deal directly with the disappearance of Jean McConville in 1972 can be handed over to police in Northern Ireland. The decision reduces the number of interviews to be handed over as a result of subpoenas served on the academic researchers from 85 to 11.

The truncation was welcomed by the project’s leaders Ed Moloney and Anthony McIntyre who issued a joint statement this morning to outline their continued resistance to the efforts of the PSNI, the British Home Office and the US Department of Justice to obtain ”any and all interviews from the Belfast Project archive at Boston College”.

“The interviews were given in strict confidence and on the understanding that they would eventually help everyone to understand why and how Ireland went through such a violent and traumatic period,” they said.

“That they should be used to compensate for the investigatory incompetence and uncaring attitude of a police force stretching back over forty years or be used to further the reactionary politics of intransigent elements in Northern Ireland politics is not just unacceptable but in our view was a flagrant abuse of the legal process.”

Moloney – a journalist – and McIntyre – a former IRA member and historian – were critical of the Obama administrations’s treatment of journalistic and media rights and noted that the involvement of the US Justice Department should have been met with “more condemnation and opposition” from American academe.

“Indeed the silence from that quarter during the last two years was almost deafening,” they said.

Despite the angry statement, the men behind the project highlighted that “a mere thirteen per cent of what the District Court in Boston had initially ordered to be surrendered” will now be handed to PSNI detectives.

“We see this judgement as at least a partial indictment of the whole process.”

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

The US Supreme Court declined to hear an appeal of the District Court’s order to give the tapes to authorities in April following the death of one of the interviewees Dolours Price. The convicted bomber took part in the project, which was initially intended to be a resource for journalists, scholars and historians studying Northern Ireland’s conflict. Her tapes have already been handed over.

McConville is one of the Disappeared – people that were abducted, murdered and secretly buried by the IRA during the Troubles. Her remains lay undiscovered for more than 30 years until walkers on Shelling Hill beach in Dundalk came across them by chance in 2003.

The oral history project involved academics, journalists and historians conducting interviews with former republicans and loyalists about their activities during the long conflict, including Price who participated in the car bombing of a London court in 1973 which injured over 200 people.

Major victory for BC in court battle over Belfast Project

Major victory for BC in court battle over Belfast Project
By Travis Andersen, Globe Staff
Boston Globe
06/01/2013

In a major victory for Boston College, a federal appeals court on Friday greatly reduced the number of interview recordings from an oral history project on the Irish Troubles that BC must turn over to British authorities investigating a 1972 killing of a Belfast mother of 10.

Judge Juan R. Torruella of the US Court of Appeals for the First Circuit in Boston wrote, in a 29-page ruling, that just 11 of the 85 interviews that a lower court ordered BC to release to the United Kingdom were relevant to the murder investigation and had to be surrendered.

British authorities are investigating the abduction and death of Jean McConville, who was murdered by members of the Provisional Irish Republican Army. They suspected her of being an informant.

Federal prosecutors in Boston issued a subpoena on behalf of British authorities in 2011 for all materials from the Belfast Project, a BC archive of interviews with former members of the IRA and other militia groups who fought during the Troubles, dealing with McConville’s death.

Participants in the Belfast Project gave interviews with the understanding that the recordings would be kept confidential until they died.

Torruella said the appeals court found that “the district court abused its discretion in ordering the production of several of the interviews … .” The panel ruled out turning over a good number of those interviews because they “do not contain any information relevant” to the subpoena.

The 2011 subpoena followed an earlier set of subpoenas for interviews with two former IRA members, Brendan Hughes and Dolours Price, who are both now deceased. Boston College initially fought those subpoenas but later turned over the requested materials.

Jack Dunn, a BC spokesman, welcomed Friday’s ruling.

“Today’s court ruling affirms our contention that the district court abused its discretion in ordering a significant number of interviews that were not relevant to the second subpoena,” he said in a statement. “We will review the decision over the next several weeks to best determine our legal options.”

A spokeswoman for US Attorney Carmen M. Ortiz, whose office has argued the matter in federal court on behalf of the British authorities, would only say that government lawyers are reviewing the matter.

Two Belfast Project researchers who remain adamantly opposed to the release of any of the contested materials, and who have been sharply critical of law enforcement and BC during the dispute, on Friday voiced support for the ruling in a joint statement.

“We see this judgement as at least a partial indictment of the whole process,” said the researchers, Ed Moloney and Anthony McIntyre.

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

US court rules McConville tapes must be handed over to PSNI

US court rules McConville tapes must be handed over to PSNI
Journalist and historian claim ‘a mere 13 per cent’ of content will now be surrendered
Simon Carswell
Irish Times
Sat, Jun 1, 2013

Only interviews dealing directly with the 1972 abduction and killing of Belfast widow Jean McConville must be turned over by Boston College to police in Northern Ireland, a US appeals court has ruled.

Yesterday’s 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 Police Service of Northern Ireland.

This reduces the amount of information that 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 Northern Irish Troubles.

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

The US appeals court in Boston ruled that the district court “abused its indiscretion” in ordering the college to produce a significant number of interviews that only contain information that is irrelevant to the McConville killing, one of the most notorious of the Troubles.

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 Mr McIntyre said yesterday’s 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.

The US appeals court had previously found that Mr Moloney and Mr 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 yesterday that the college has handed over interviews with Ms Price, who died in January, and another Provisional IRA member, Brendan Hughes, who died in 2008.

Mrs McConville, a west Belfast mother of 10, was abducted, shot dead and buried by the IRA on the belief that she was passing information to the British Army, a claim denied by her family.

Her body was found on a beach in Co Louth in 2003.

Boston Appeal Court Drastically Restricts Handover From Boston College Archive

Boston Appeal Court Drastically Restricts Handover From Boston College Archive
Joint statement from Ed Moloney & Anthony McIntyre on First Circuit court’s decision to heavily truncate number of Boston College interviews to be handed over to PSNI

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 US Department of Justice to obtain any and all interviews from the Belfast Project archive at Boston College.

These were academic and journalistic documents of considerable historical importance to students of Irish politics and to conflict researchers to which no-one, outside of the interviewees themselves and ultimately Boston College had any right of ownership.

The interviews were given in strict confidence and on the understanding that they would eventually help everyone to understand why and how Ireland went through such a violent and traumatic period.

That they should be used to compensate for the investigatory incompetence and uncaring attitude of a police force stretching back over forty years or be used to further the reactionary politics of intransigent elements in Northern Ireland politics is not just unacceptable but in our view was a flagrant abuse of the legal process.

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

Nonetheless we do welcome today’s decision by the First Circuit to reduce from eight-five to eleven the number of interviews that qualify for handover under the terms of the subpoenas served on Boston College, a mere thirteen per cent of what the District Court in Boston had initially ordered to be surrendered.

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 judgement as at least a partial indictment of the whole process.

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

Disclosure of BC interviews reversed in part

Disclosure of BC interviews reversed in part
Tom Egan
Mass. Lawyers Weekly
05-31-2013

The 1st U.S. Circuit Court of Appeals has handed Boston College a partial victory in its battle against a subpoena for interviews conducted by “Belfast Project” researchers.

The subpoena was issued pursuant to Article 5 of “US-UK MLAT” — 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.

U.S. District Court Judge William G. Young ordered that 85 interviews in BC’s possession be turned over for eventual transfer to the UK authorities.

The federal government contended that courts do not have discretion under the US-UK MLAT to review for relevance materials subject to a subpoena. “It states that only the Attorney General, not the courts, has discretion to decline, delay or narrow a request under the treaty,” Judge Juan R. Torruella noted for the 1st Circuit panel.

“If we were to accede to the government’s position and hold that courts must always enforce a commissioner’s subpoenas, we would be (1) allowing the executive branch to virtually exercise judicial powers by issuing subpoenas that are automatically enforced by the courts; and (2) impairing our powers by acceding to act as rubber stamps for commissioners appointed pursuant to the treaty,” the 1st Circuit reasoned.

“Such subservience is constitutionally prohibited and, ergo, we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers,” Torruella announced.

“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,” the court concluded. “Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

The court went on to find some of the interviews to be irrelevant.

“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 explained.

The 29-page decision is United States v. Boston College, Lawyers Weekly No. 01-135-13.