Audio & Transcript of Oral Arguments, First Circuit Court of Appeals, September 7, 2012

Audio & Transcript of Oral Arguments, First Circuit Court of Appeals, September 7, 2012
Oral arguments made in the appeal filed by Boston College to challenge the district court ruling concerning the PSNI subpoena filed under the US-UK MLAT for the oral history archive known as The Belfast Project.

No. 12-1236
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
___________________________________________________________
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
___________________________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
___________________________________________________________

Oral Arguments
First Circuit Court of Appeals
Boston MA 7 September 2012

Sitting for the court: the Honourable Juan Torruella, the Honourable Michael Boudin and the Honourable Ojetta Rogeriee Thompson.

12-1236 In Re: Request from the United Kingdom Oral Arguments 9/7/12: Download

Attorney Jeffrey Swope (*JS*) makes the oral arguments for Boston College

(In progress…)

Jeffrey Swope (JS): May I reserve one minute of my ten for rebuttal, Your Honour?

Judge Torruella: You may.

(JS): Thank you.

This appeal is from an order that required Boston College to produce confidential academic research materials in response to a subpoena issued by the Commissioner of The United States under a multilateral treaty with the United Kingdom. Now the materials were confidential oral history interviews gathered from individuals who participated or were affiliated with the IRA in The Troubles in Northern Ireland. Now the description that I’ve just given will sound familiar to this court because two members of this panel were on the panel that decided a case that could sound like that same case in July.

This is not that case. This is a very different case. Boston College was not a participant in that appeal and the subpoenas that were at issue are different subpoenas.

The first subpoenas that were the issue in what I’ll call In re: Request of the United Kingdom, which is how this court referred to the district court decision, was for the transcripts of two named individuals – specifically named individuals.

The subpoenas that are at issue in this case, issued a couple of months later to Boston College, were not so specific as to interviews. Rather they described a subject matter which was: any information in all of the oral history transcripts that relates to the abduction or death of a victim of the unrest in the 1970′s.

By definition, therefore, somebody had to make a decision about which transcripts had relevant, responsive material in them that fell within the scope of the government’s subpoena. The district court undertook an en camera review of over a thousand pages of those transcripts and at the conclusion of that determined that eight of the twenty-four transcripts that the district court reviewed – all or some of those transcripts should be produced. It’s from that order that we appeal.

And we appeal because we say the district court in making that relevance judgment did not follow the instructions of this court in a 2004 case, In re: Special Proceedings, that says when you’re dealing with materials that have first amendment implications for news gathering or for academic research and the freedom of information and the analysis of academic issues, courts should review these subpoenas with “heightened security”. And it defines “heightened security” as making sure that the materials that are provided are quote “directly related” to the subject of the subpoena. And it’s our contention that as to these eight transcripts that were produced that were not directly related.

Judge Torruella: To what extent are the cases, the ones you’ve just mentioned, controlled by Branzburg?

JS: They’re not, Your Honour, because this court considered Branzburg and said, in the words of Justice Boudin, that in this circuit there is an additional amount of protection for these kinds of research materials. And the court said it’s not clear whether this is constitutionally required or prudential but that extra protection is the imposition of this direct relevance.

So this court has actually decided that in In re: (Ed: Special) Proceedings – the question that Your Honour just asked me and in…

Judge Boudin: Are you talking about Judge Lynch’s opinion?

JS: No. I’m talking about In re: Special Proceedings – the 2004 case.

Judge Lynch’s opinion in In re: Request of the United Kingdom cites the In re: Special Proceedings decision in a couple of places and doesn’t question its conclusion. It doesn’t cite it on this issue but it cites the case so the court was obviously aware of In re: Special Proceedings.

Judge Thompson: Counsel, do you agree that this is an abuse of discretion reviewed by us?

JS: Yes, I do. And I understand that that sets a high bar, Your Honour.

Judge Thompson: And so your basic argument is that the court abused its discretion in making its determination as to what transcripts were relevant?

JS: Directly related.

Judge Thompson: Directly related…

JS: Correct.

Judge Thompson: …and responsive.

JS: That’s correct. Now requiring…this court’s requirement in In re: Special Proceedings that when you’re dealing with these kinds of materials they be directly related in order to compel production is not a privilege.

Boston College never argued that there was an academic researcher’s privilege. And this court, in the In re: Request of UK decision by Judge Lynch says there is no privilege that allows academic researchers to deny evidence to government investigators in criminal matters. We never argued that. That holding does not affect our argument.

Judge Torruella: Does the treaty, I don’t remember the dates, does the treaty precede or is it after the cases that you have just referred to? Which date would the case be?

JS: Both were in 2004. Well, the operative MLAT, as it is called, is in 2004 but there was similar language in an earlier version of it so that the language about multilateral treaties, multilateral assistance, in criminal proceedings has been used before 2004.

That was not the issue in In re: Special Proceedings. In re: Special Proceedings had to deal with disclosure of video tapes in Rhode Island that had been part of a…

Judge Torruella: Yes. My question really goes to: does that treaty take the power away from the court to engage in that balancing test?

JS: No, it does not Your Honor, for two reasons. First is that under Article 8 Subsection 2 the treaty expressly says that requests for subpoenas issued under this has to follow local law so it does not oust local law.

Secondly, even if it tried to oust local law, it would be astonishing to think that the United States, by entering into a treaty, could turn judges enforcing subpoenas into simple clerks that simply stamp papers.

And Aubrey v. Madison decided that question long ago. In the Ninth Circuit case that is cited in In re: Request of the UK expressly says that it rejects any argument that the treaty could make it a matter simply between the executive and the law enforcements officers to issue subpoenas. The court said the government’s position leads to the inescapable and unacceptable conclusion that the executive branch and not the judicial branch would exercise judicial power. That issue, which has not been argued by The United States in this case, if it were argued, I think the answer’s clear under that Ninth Circuit which is, all of these cases have odd names…it’s In re: 340 Broadway, or something like that.

The other important point about In re: Special Proceedings is that it, like this case, was connected to a criminal proceeding. At various points this court has expressed more protection for academic research in civil matters, the Cusumano case and others, (and the Bruno case) but those cases also apply, the In re: Special Proceedings arose in and the protection of direct relationship was stated in the context of a criminal proceeding.

Now the specifics of how “directly related” works, gets into the details of the transcripts that are the subject of this proceeding.

We have filed with this court a record that has, under seal and ex-parte because they are protected at this present time we argue, the particular transcripts that show what the abuse of discretion was in ordering production.

I can’t get into that in open court obviously but I can point to two things in open court: one is that the district court expressly said that only one of the interview transcripts sent was responsive to the subpoena. And then said there’s one other that if broadly read, that description about the abduction and death of a victim, there’s one other that might be considered responsive.

Well, right there you have the evidence that the court has not applied, although it states that it understands the direct relevance test, that it has not apply that.

One other transcript that is even further proof is a mistakenly labeled one. The interviewers had mistakenly labeled one other person’s interview as that of one of the ones the judge ordered. When that was brought to the judge’s attention he said I’m not going to change my order. So that had nothing to do with any finding. Thank you, Your Honour.

Judge Torruella: Thank you.

Assistant US Attorney Randall Kromm presenting oral argument on behalf of The United States of America:

Judge Torruella: Mr. Kromm, Good Morning.

Randall Kromm (RK): Good Morning. May it please the court: Randall Kromm representing The United States.

With due respect, the government just simply disagrees that In re: Special Proceedings and particularly the language from that case on which BC relies here has any relevance with respect to these or any survives has any vitality with respect to these materials in the wake of the most recent decision addressing the very same materials by this court. What this court had to address there…

Judge Torruella: So that case is resolutely counter, basically, is what you’re saying?

RK: Well not simply as a matter of the legal interpretation of the interests as they apply to these materials or the law as it applies to these materials, this court has already decided that.

Now again, it’s a different subpoena, but it’s the same body of work, the same interests are asserted.

Judge Torruella: Different parties.

RK: Different parties. But the same interests and the same body of work and the first amendment arguments based on the same principles in our view it simply is…so on all fours…there’s simply no… it’s inescapable that the decision there applies equally here.

And the reason is: In re: Special Proceedings – the point there there was some language in the case – it’s just that this court has been more protective in a series of prior cases where there’s a first amendment right at issue. But in this court’s prior decision, with respect to these materials, the court said, distinguished, that line of cases including In re: Special Proceedings and said that this case, these materials, this request, is more more similar to the central facts of Branzburg in that Branzburg itself controls.

I don’t think the court could’ve really been any clearer in suggesting that, to the extent being any difference between it’s prior cases and Branzburg, by saying that Branzburg controls here and it’s the requirements of Branzburg that apply here that, to the extent those other cases were more protective in other circumstances, they don’t apply here. And I think that is pretty straightforward just from the way that it distinguishes those cases.

But the court goes a little further than that in which it also cites the EEOC vs University of Pennsylvania case which specifically raised the issue about whether there was a heightened relevance standard. The issue to there the EEOC was seeking documents having to do with the tenure process. They were opposed on the grounds, the first amendment grounds, of impingement upon academic materials. And the specific assertion was there was a heightened standard of relevance; they had to be especially relevant, not directly relevant, but there was a heightened standard of relevance. The Supreme Court said it did not.

This court cited that case with approval in its most recent decision saying, noting that that case had rejected a requirement that there be a judicial finding of particularised relevance beyond a showing of relevance, ordinary relevance. And then went later went ahead to refer to that case several more times in the decision.

So in our view, the central point here, which was there was some supplemental relevancy required, simply isn’t true with respect to these materials

Judge Boudin: You still haven’t the solved question with either one or two of the rulings as to whether even a regular relevancy test was that including the example given at the end by your Brother. (Ed Note: “Brother” – a polite and acceptable reference to opposing counsel used in Massachusetts courts.)

RK: Right. There was a mention of a case that was mislabeled. And I think, again this is an interesting case and I think it’s also important to note this was a case in which there were ex-parte materials submitted by both sides and without objection. Not only does the government not have those materials, so it’s not in the position to argue as to whether something was mislabeled or was not, but my Brother is also not in the position to have the information solicited from the government and that the government submitted to help the court understand the full scope of the subpoena or what the meaning of the subpoena was. As it has been described, the subpoena was very broad: any and all materials relating to the abduction of Jean McConville.

The court asked for information from the government to be submitted ex-parte regarding the investigation in the UK that could help us understand what was really being looked for. And it took that into account. So the court knew what neither of the individual parties knew in totality as to what was really at issue here – what was really being sought and what the materials that Boston College had really said.

And under the circumstances here we really don’t think there’s evidence from the public part of the record that shows that the district court did anything wrong or misunderstood what it was doing. I think the court was clear in attempting to explain in a public way a case involving alot of non-public information that the materials had different degrees of connection to the central facts of the McConville case.

But that it believed, having taken it upon itself to review a thousand pages or more of material, and it also explains how it educated itself on the geographical and historical aspects of The Troubles, in order to understand better what would be relevant. Having taken that upon itself it believed this was the correct universe.

We haven’t seen anything to suggest that the district court didn’t discharge that obligation with all the information that it had properly and taking into account what the true scope of the investigation was that it didn’t find what was relevant in an ordinary sense of relevance.

And again, we don’t have the materials so there is a point at which the court will make it’s own determination but from the public pronouncements we don’t think those show that the court misunderstood…

Judge Boudin: Mr. Kromm, this is a rather difficult position to try understand the rationale if the original rationale rests on the notion that one person is being interviewed or one person has a connection.

Turns out that’s a mislabeling. What do you suggest we do (to) understand the rationale?

RK: Again, from the public, we know what the district court thought as it trying to do. It was trying to inform itself as to what could possibly be relevant to the investigation as it knew, in a way that even Boston College does not, what the investigation was. If it was clearly wrong, I mean, an abuse of discretion could have occurred. We just have no basis on the public statements of the court to think that that happened.

I also think, and we pointed this out in our brief, that there is perhaps a heightened kind of abuse of discretion here where Boston College asked for this process. The government did not. I mean the government would’ve objected to the idea that the court would sort of be a gatekeeper in the process. Boston College chose to let the judge take on quite a serious task of going through and making the decision about what would be the documents that would be produced. And I think, we cite to a case where this court has said, in that circumstance an entity is hard pressed to say that the district court abused its discretion in fulfilling the obligation that it asked the court to take on.

But again that’s not to say there couldn’t be an extreme circumstance. It’s just on the public record we don’t see evidence of that, that the district court misapprehended relevance in the general sense or….

Judge Torruella: So what could we do? We read everything that the district court read and make up our own minds? Or what?

RK: Well I think presumably, I know materials have been submitted materials ex-parte by both parties. I presume this court will review those and see within the specific kinds of objections, presumably, they pointed to the most significant documents that they believed showed the court misapprehended it’s obligation. We’ve pointed to the documents that we think show what the district court was thinking about when it did and said what it did.

And I guess the court does have to make a determination on the basis of that whether it represents the…

Judge Boudin: Well, a lot of the arguments are in fact dependent on a special relevance requirement. You make particular arguments with respect to a couple but they wouldn’t satisfy even ordinary relevance tests. But most of it turns on the issue you’ve already addressed.

RK: I think if there aren’t any more questions those are the points I wanted to make and we rely on our briefs Thank you, Your Honours.

Judge Torruella: Thank you. Mr Swope?

JS: Thank you, Your Honour. Very briefly: Mr. Kromm said that the In re: Request of the UK distinguished In re: Special Proceedings on this issue of “directly related”. It did not. That argument was not made by the appellants in In re: Request of the United Kingdom.

Judge Boudin: I think the suggestion is the language the court used in the decision would make it harder to argue for a special relevance test.

JS: The court, the decision did not address it.

Judge Boudin: But…

JS: I take your point.

Judge Boudin: Judge Lynch’s opinion set forth a rationale which doesn’t leave too much room for that argument.

JS: But it does allow because it’s not a privilege. It does allow the court to say the government will still get directly related materials. Nothing would be denied to the government. That’s our point.

Judge Torruella: Thank you.

(Ends)

Video: Battle Over Northern Ireland Archive

Battle Over Northern Ireland Archive

►

The I Files selects and showcases the best investigative videos from around the world. Major contributors include The New York Times, ABC, BBC, Al-Jazeera and Investigative News Network.

Battle Over Northern Ireland Archive
From the Bureau for International Reporting: 14 years after peace came to Northern Ireland, a legal battle is erupting over the release of confidential interviews with former combatants of the Troubles. The US Department of Justice has subpoenaed several recordings being held at Boston College, on behalf of British law enforcement that is investigating a 40 year old murder. On Sept 7, The US First Circuit Court of Appeals will hear oral arguments in this fascinating case that raises competing interests of US First Amendment law, peace and security in a still-fragile Northern Ireland, and potential justice for a horrible crime.

Previously: Edited version aired on PBS Newshour.

Radio Free Eireann interview with Belfast Project Director Ed Moloney

Radio Free Eireann interview with Belfast Project Director Ed Moloney
Radio Free Éireann
WBAI 99.5 FM Pacifica Radio
New York City
8 September 2012

Ed Moloney, the director of the Boston College Oral History Project on the Northern Ireland conflict, was interviewed on Radio Free Eireann, Saturday September 8 at 1pm ET on WBAI 99.5 FM and wbai.org. A tape recording of a key interview with Dolours Price which reportedly implicates Gerry Adams in a spectacular IRA killing came within hours of being handed over to the British government on Friday when a Belfast court issued a temporary stay. As this is being written, the First Circuit Court of Appeals is hearing a motion to bar the tapes from being handed over to the British pending an appeal to the Supreme Court.

Download

John McDonagh (JM) and Sandy Boyer (SB) interview Ed Moloney (EM) about the legal updates in the case of The Belfast Project, the oral history archive which is the subject of a subpoena from the PSNI.

(1:38 PM EST)

Sandy Boyer (SB): We’re talking to Ed Moloney, the author of Voices From the Grave, and the Director of what’s become known as The Belfast Project, the unique oral history project of The Troubles, the Northern Ireland conflict, which tried to record it from the point of view of the people who actually did the fighting in the IRA and The Ulster Volunteer Force.

And we’ve been covering it of course for months it seems like, the attempt of the American government to get especially one tape from that project turned over to the British intelligence, the British police, and that’s an interview with Dolours Price.

And this Friday, Ed, you were in court in both Belfast and Boston and it seems at times you might have been very close to having that turned over!

Ed Moloney (EM): Yes. I guess we were within hours of Dolours Price’s interviews being handed over to the PSNI. But we were able, first of all in Belfast, we have been planning for a long time to try to get a judicial review of the PSNI decision to subpoena Boston College.

That means a judge examines the matter, our lawyers argue why the PSNI should be stopped and he makes a decision. We were facing a situation where there was a gap of seven days between the hearing which will decide whether we can have that judicial review and the handing over of the materials. So we needed to stop the PSNI from getting their hands on the interviews for at least for that period of a week or so.

Our lawyers, lead by Kevin Winters in Belfast, who I’m sure people in New York familiar with Irish politics and the whole court situation in Northern Ireland will know him, he was able to persuade a judge to impose an injunction on the PSNI stopping them having any access.

At the same time, Eamonn Dornan and Jim Cotter in Boston applied to the First Circuit Court of Appeals in Boston for another Stay pending our application to the Supreme Court to hear the case. That is being decided I guess early next week.

If the First Circuit Court of Appeals turns us down, which they’re very probably going to do, we then go straight to the Supreme Court and ask the Supreme Court for a Stay. And a single judge, in this case I understand it will be Mr. Justice Breyer who’s actually from Boston, will make the decision. And we’re obviously hoping that he imposes a Stay. Because if he doesn’t, then going to the Supreme Court becomes moot. The cat is out of the bag as the lawyers say in the sense that we’re not able to hold onto the tapes.

So those are the two legal actions that are going on. We’re obviously hoping that both will progress. We’re going to have to wait and see. Next week is going to be, I think, be quite crucial.

SB: Ed, one of the arguments you’re making is that if this tape handed over to the Police Service of Northern Ireland, first of all, Anthony McIntyre, who was the lead researcher who did many of the interviews, his life could be in danger and the lives of some of the people who participated could be in danger.

And you know, it’s been widely reported, I know you can’t comment on this, but it’s been in the press that these tapes might include something saying Dolours Price alleging that Gerry Adams was involved in the killing of Jean McConville. That would be explosive!

And if one looks at who Dolours Price is, I mean, she was involved in an IRA bombing operation in London and I’m not saying this is true, but if hypothetically, she were to say – I know who gave the orders – that might be very badly looked at by some people.

EM: Let’s assume that what you’re staying has a basis in fact and I’m not going to comment as to whether or not that it does.

But as you know, the reason why we have these subpoenas in the first place is that a couple of articles appeared in the Belfast newspapers; The Irish News followed by The Sunday Life. It’s a very complicated story which I will tell at some point and I think people will have their toes curled when they hear the full story. And in those articles it was alleged that Dolours Price had made all these claims about Gerry Adams.

And if that’s the case, and I was talking to a lawyer I respect during the week about all of this, about what possible criminal charges could follow if it goes down this particular road. And this lawyer said well, normally an aggressive prosecutor would want to implicate everyone involved in this offence in criminal charges.

And I said: well how could that be possible if there is no direct evidence?

It all falls under the rubric of a conspiracy charge. In other words, if you can establish that there was a conspiracy to let’s say, disappear Jean McConville or blow up London in 1973 or whatever, then it means that Gerry Adams could be facing a charge, a conspiracy charge, quite realistically.

Then on the other hand, if they decide to charge everyone else except him and all that evidence comes out and assuming that the evidence says what you have said it says, it’s going to raise a major political row of double standards. So either way this is like a huge hot potato for politics in Northern Ireland.

And the more you think about it, when you step back and look at what has happened in the last year, year and a half or so that we’ve been battling these subpoenas, and look at the way that the policing service is moving in Northern Ireland, a process of what alot of people are describing as the re-RUC-ing of the PSNI. The primacy of RUC voices in places like The Historical Enquiries Team, which is the unit that is behind this particular move and the role of former RUC officers who all resigned and are now back in.

You remember when the PSNI was set up the RUC officers were given the opportunity to resign early or retire early and they’d get huge, big golden handshakes which a lot of them did. Well, they took those golden handshakes and now they’ve been re-hired on a sort of out-sourcing basis by a private company. And they’re back in there and they’re in back in areas like intelligence gathering in particular in places like The Historical Enquiries Team.

You look at all of that and you wonder what on Earth is going on here and when are people in Northern Ireland going to wake up and realise just exactly the potential of what is happening here? Because if this all does happen, it’s going to be explosive. There’s no doubt about it.

John McDonagh (JM): Ed, we’re talking about what’s going to happen if Boston College turns it over to the PSNI.

But what are the ramifications for American historians or even other historians that want to do this type of research on conflicts anywhere?

EM: You’re absolutely right John to asking that question because unfortunately it has not yet penetrated…or I think it actually has penetrated and the American media consciousness and I just get the feeling that they’re just wary of it. Because I was talking again to a lawyer about this last night about our bid to go to the Supreme Court.

And he was saying that one of the major reasons why we think it could end up in the Supreme Court, and you know you have to be realistic here, only a tiny, tiny fraction of cases that are sent to the Supreme Court for consideration actually do get a hearing, right?

So the statistical odds are very, very much against us. But it does depend on the quality of the arguments, and the issues and the gravity of the issues involved.

And this is really about a lot of unsettled business relating to the law and journalistic and media rights. And the First Circuit ruling in our case makes it impossible for journalists of any stripe, any colour to hide behind the confidentiality agreement with a source. It makes it absolutely impossible.

Previous law or previous judgments had opened up windows of opportunity to use confidentiality. The First Circuit slammed those windows tightly shut. And that’s the significance of the case. It obviously has ramifications for academic life. But you know? Don’t worry about academics because from my experience of them in the last year and a half, they couldn’t fight their way out of a paper bag.

But I am concerned about journalism because it is my trade and from that point of view it’s an extraordinarily important case. So it may be for that reason that it will end up in the Supreme Court. But I don’t know. It really does depend upon factors out of our control. I certainly hope it goes there and I hope that we win.

SB: And Ed, you’re also concerned about the lives of your researchers and people who gave interviews.

EM: Oh absolutely.

SB: Why?

EM: Oh absolutely. There’s no doubt that someone like Anthony McIntyre could very much be in danger.

And this is not the danger that, you know, the week after the interviews are handed over like there’s a burst of machine gun through his front door window.

It’s like five years down the road and he steps off the pavement and he gets hit by a car which speeds off into the distance. It’s that type of situation that you’re worried about. We all know how these people operate. And how they wait and take their time and bide their time and take their opportunity if and when it produces or provides itself.

So it’s not an immediate threat that we’re talking about but it is a very real threat. And the same applies of course to any of the interviewees who are identified as a result of this.

Because if they have talked freely about IRA matters then the IRA will regard them as having been informers and subject to the same IRA discipline as they did when they were active in the IRA. So it’s a very, very dangerous situation and there literally could be people killed as a result of this very foolish and I think politically motivated action by the PSNI.

SB: Well, Ed, look, we’re going to keep on this and we’ll obviously be talking to you I’m sure in the future. So thanks very much for coming on.

EM: No problem.

(1:48 PM EST ends)

Boston College: IRA interviews should stay sealed

Boston College: IRA interviews should stay sealed
By DENISE LAVOIE
AP Legal Affairs Writer
Associated Press
Sep 7, 1:46 PM ED

BOSTON (AP) — A judge abused his discretion when he ordered Boston College to release interviews that academic researchers had recorded with former Irish Republic Army members, a school lawyer argued Friday.

In January, U.S. District Court Judge William Young ordered the school to give the U.S. Department of Justice portions of recorded interviews with seven former IRA members so that the agency could hand them over to police in Northern Ireland investigating the IRA’s 1972 killing of a Belfast woman.

The interviews were conducted as part of an oral history project, and participants said they were supposed to be kept secret until their deaths. The researchers who ran the project and conducted the interviews have argued that the participants’ lives could be endangered if their identities are revealed publicly because they could be branded as informants.

In arguments before a three-judge panel of the 1st U.S. Circuit Court of Appeals on Friday, Jeffrey Swope, an attorney for Boston College, said any interviews turned over must be “directly related” to the subject of a subpoena – the 40-year-old killing of Jean McConville, a mother of 10 whom the IRA suspected was spying for the British.

Young, who reviewed the recordings and made the decision on which interviews should be turned over, applied the wrong standard when making his decision, Swope said. He also said Young, who cited portions of interviews with seven people in his ruling, actually ordered eight interviews to be turned over because one interview was mislabeled.

Assistant U.S. Attorney Randall Kromm argued that Young only had to decide that the interviews had “ordinary relevance” to the subpoena. He said the subpoena was very broad and called for any and all materials related to McConville’s abduction and killing.

The appeals court did not immediately rule.

In a separate but related case, the same appeals court in July upheld a ruling by Young ordering the college to turn over an interview with convicted IRA car bomber Dolours Price.

Price and the other former IRA members were interviewed between 2001 and 2006 as part of The Belfast Project, a resource for journalists, scholars and historians studying the decades-long conflict in Northern Ireland known as The Troubles.

Project director Ed Moloney and ex-IRA gunman Anthony McIntyre, who conducted the interviews, challenged the decision by U.S. authorities to subpoena the records.

In its ruling in the Price case, the 1st Circuit found that Moloney and McIntyre had no right to interfere with the police request, under the terms of a treaty between the United States and United Kingdom that requires the two to aid each other’s criminal investigations. The court also said criminal investigations take precedence over academic study.

McIntyre’s wife, Carrie Twomey, who attended the court arguments Friday, said none of the interviews should be turned over to police.

“The danger that this poses to the interviewees is too great,” she said.

McConville’s killing has received widespread media attention in Ireland because of allegations that Sinn Fein leader Gerry Adams commanded the IRA unit responsible for ordering her execution and secret burial. Adams has denied that.

Moloney has said he believes the recordings are explosive enough to damage Northern Ireland’s unity government, in which Sinn Fein represents the Irish Catholic minority. Its stable coalition with the British Protestant majority is the central achievement of the 1998 U.S.-brokered peace accord.

Appeal launched against IRA tapes being handed over to police

Appeal launched against IRA tapes being handed over to police
Journalists and academics say if tapes from Old Bailey bomber Dolours Price are surrendered it will put their lives at risk
Henry McDonald, Ireland correspondent
The Guardian
Friday 7 September 2012

An appeal will be launched in the US on Friday to prevent secret tapes by a former IRA bomber being handed over to the Police Service of Northern Ireland.

The family of one of the most famous victims of the IRA – Jean McConville, a widow with 10 children – are backing PSNI attempts to seize the recorded testimony. Her daughter Helen McKendry believes the tapes contain information about decision by the IRA leadership in Belfast to order McConville’s murder and secret burial.

But journalists and academics argue that if Boston College surrenders the tapes from IRA Old Bailey bomber Dolours Price it will destroy any chance of an honest, historical inquiry into the Troubles as well as putting their lives at risk.

Lawyers for those who set up and worked for Boston College’s Belfast Project are appealing against the decision in both the US and Northern Ireland to hand over the tapes to the PSNI.

Like every other participant in the project, which included both former IRA and loyalist terrorists, Price agreed to give the interview on the condition that her account would remain confidential until after her death.

The appeals are being made by lawyers acting on behalf of writer Ed Moloney and researcher Anthony McIntyre.

The PSNI is seeking Price’s transcripts as part of their investigation into the IRA murder of McConville in 1972.

Boston College will also appeal later today to limit the handover of interviews from its Belfast Project.

In July, a US appeal court ruled that Boston College interviews should be handed over to the PSNI.

Moloney, a journalist, and McIntyre who is a former IRA member, had applied to the first circuit court of appeal for a re-hearing of the case, but this was rejected last month.

The men said they were “disappointed” but would apply for a hearing at the US supreme court because the case “addresses issues of major constitutional importance for Americans”.

They said the PSNI had applied for access to the interview transcripts under the terms of a Mutual Legal Assistance Treaty (MLAT) between the US and the UK.

In a joint statement, the men said their lawyers would argue that “the MLAT bestows upon the PSNI greater powers in relation to the serving of subpoenas in the US than could be exercised by, for instance, the FBI.

McConville’s family have urged the US authorities to ignore the appeals and press ahead with transferring the tapes to the PSNI. They
allege that the Sinn Fein president, Gerry Adams, gave the order that she be “disappeared” or buried in secret to avoid the political embarrassment of the IRA being responsible for killing a widow with 10 children.

Adams has denied any involvement and has also rejected repeated claims – including by former comrades – that he was in the IRA.

Secret ‘IRA tapes’ appeal to begin

Secret ‘IRA tapes’ appeal to begin
Published Friday, 07 September 2012
UTV News

Legal appeals launched by Boston College and two of its researchers, in relation to the handing over of interviews with a former IRA activist, are set to begin in the USA and Belfast on Friday.

Journalist Ed Moloney and former IRA member-turned-writer Anthony McIntyre interviewed Republicans and Loyalists for as part of the American college’s ‘the Belfast Project’ – a recorded oral history project on the Troubles.

The project, which began in 2001, collected recordings on the understanding they would not be made public until the death of the interviewee.

Former IRA prisoner Dolours Price was one of those who took part. She was jailed for her part in the March 1973 car bombing of the Old Bailey in London, which injured more than 200 people.

The legal challenges centre on tape recordings in which it is believed she may have mentioned the disappearance and murder of a Belfast mother of ten.

Jean McConville went missing in 1972, but her body lay undiscovered for nearly 30 years and was eventually found buried near a Co Louth beach in 2003.

In July, an appeal court in America ordered that a transcript of an interview with Price should be handed over to PSNI officers investigating the historic murder.

On Friday, in Belfast, solicitor Kevin Winters will be seeking a High Court injunction preventing the PSNI from accessing any interviews that may be handed over by the US authorities prior to a hearing for a Judicial Review of the PSNI subpoenas.

They were served on Boston College via the United States Department of Justice.

The application for a Judicial Review is scheduled to be heard on 14 September.

In Boston, attorneys have filed a petition to the First Circuit Court of Appeals seeking a stay on the handover of the Price interviews, until the Supreme Court considers a bid to hear the case.

In a separate appeal with the court, Boston College are trying to limit the number of Belfast Project tapes to be handed over.

Former Belfast Project Director Ed Moloney said that both sets of legal authorities are complaining about the delay caused by the legal challenge.

“Since Mrs McConville was killed in 1972 and it was not until the mid-1990′s that her disappearance was even classified as a murder by the police in Northern Ireland, it ill behooves anyone in legal authority to complain about delays.”

Appeals over Dolours Price interviews to start

Appeals over Dolours Price interviews to start
BBC News
7 September 2012

Legal appeals to prevent interviews with a former IRA bomber from being handed over to the PSNI will begin in Belfast and Boston on Friday.

The interviews with Dolours Price were part of a history project for Boston College.

Lawyers are appealing the decision in both countries to hand over the tapes to the PSNI.

Price agreed to give the interview on the condition that her account would be confidential until after her death.

The appeals are being made by lawyers acting on behalf of researched Ed Moloney and Anthony McIntyre.

The PSNI is seeking her transcripts as part of their investigation into the IRA murder of Jean McConville in 1972.

Also on Friday, Boston College will appeal to limit the handover of interviews from its Belfast Project.

Loyalist and republican paramilitaries gave interviews to the university as part of the project.

In July, a US appeal court ruled that Boston College interviews should be handed over to the PSNI.

Mr Moloney, a journalist, and Mr McIntyre who is a former IRA member, had applied to the First Circuit Court of Appeal for a rehearing of the case, but this was rejected last month.

The men said they were “disappointed” but would now apply for a hearing at the US Supreme Court because the case “addresses issues of major constitutional importance for Americans”.

They said the PSNI had applied for access to the interview transcripts under the terms of a Mutual Legal Assistance Treaty (MLAT) between the US and the UK.

In a joint statement, the men said their lawyers would argue that “the MLAT bestows upon the PSNI greater powers in relation to the serving of subpoenas in the US than could be exercised by, for instance, the FBI.

Price was convicted of her part in the car bombing of the Old Bailey courthouse in London on 8 March 1973. The explosion injured more than 200 people.

Boston and Belfast Appeals Made

BOSTON COLLEGE SUBPOENAS
MOLONEY & MCINTYRE PRESS RELEASE, Sept 6th 2012

As Boston College’s appeal to limit the handover of interviews from its Belfast Project IRA archive begins in front of the First Circuit Court of Appeals in Boston tomorrow (Fri, EST), lawyers for researchers Ed Moloney and Anthony McIntyre will be separately applying to courts in Belfast and Boston to stay the handover of interviews given by the former IRA activist, Dolours Price.

In Belfast, solicitor Kevin Winters will be seeking a High Court injunction tomorrow morning (Fri, 10:00 a.m. GMT) preventing the PSNI from accessing any interviews that may be handed over by the US authorities prior to a hearing for a Judicial Review of the PSNI subpoenas which were served on Boston College via the United States Department of Justice. The application for a Judicial Review is scheduled to be heard on September 14th.

In Boston, attorneys Eamonn Dornan and JJ Cotter have filed a petition to the First Circuit Court of Appeals seeking a stay on the handover of the Price interviews as well as those that are the subject of Friday’s appeal by Boston College, until the Supreme Court considers a bid to hear the case, which has huge constitutional, legal and political consequences, in front of America’s highest court.

The Crown Solicitor’s Office in Belfast rejected a request by Mr Winters to impose a voluntary stay on the interviews saying: “The challenges to the Mutual Legal Assistance Treaty in the United States have currently delayed this investigation by almost 2 years.” The US Attorney’s Office in Boston has similarly rejected any idea of extending the stay and may file its own motion seeking the immediate handover of the materials.

Commenting on this, former Belfast Project Director Ed Moloney said: “Both sets of legal authorities are complaining about the delay caused by our legal challenge. Since Mrs McConville was killed in 1972 and it was not until the mid-1990’s that her disappearance was even classified as a murder by the police in Northern Ireland, it ill behooves anyone in legal authority to complain about delays”.

Belfast Project Case May Go To Supreme Court

Belfast Project Case May Go To Supreme Court
Arguments For BC’s Appeal Begin Sept. 6
By David Cote
News Editor
Boston College Heights
Published: Wednesday, September 5, 2012

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

Irish journalist and Belfast Project researcher Ed Moloney, together with Belfast Project researcher and former IRA member Anthony McIntyre, recently announced their intention to bring the case of the Belfast Project to the United States Supreme Court. The pair, appealing a decision by the United States First Circuit Court of Appeal that rejected their right to intervene in the Boston College archive case, have repeatedly emphasized the case’s vast constitutional importance and potentially harmful ramifications on the fragile peace process in Northern Ireland and the enterprise of oral history.

“We wish to make it clear that we now intend to apply to the Supreme Court of the United States for a hearing on a case which we believe addresses issues of major constitutional importance for Americans,” Moloney and McIntyre said in a statement.

The Belfast Project legal drama began in May 2011, when interviews conducted with former IRA members Dolours Price and Brendan Hughes were subpoenaed by the United States federal government, on behalf of the United Kingdom, as part of an ongoing investigation by the Police Service of Northern Ireland (PSNI) into the death of Jean McConville, an Irish widow and mother of 10 who was murdered in 1972.

Participants in interviews believed that they had been promised confidentiality until their death, but the subpoenas brought legal pressure on the University to assist the United Kingdom according to a Mutual Legal Assistance Treaty (MLAT), which assures cooperation between the two countries in various legal investigations.

Though BC initially filed motions to quash the subpoenas on the Price tapes, they were denied by the courts and did not appeal, citing Price’s participation in an interview with Irish media in which she mentioned the Belfast Project as a violation of the agreement to confidentiality she signed before her interviews commenced. Brendan Hughes died in 2008 and his interviews were used as the subject of a book written by Moloney, Voices from the Grave, and thus the release of his interviews was not in dispute.

In a Letter to the Editor published in The Heights on Jan. 18, 2012, Thomas Hachey, professor of history and executive director of Irish programs, wrote, “Interviewees in [the Belfast Project] understood that divulging their participation could potentially compromise the underlying premise that such testimony remain undisclosed until the time of their demise.

“That important need for discretion was honored by all surviving participants, with the notable exception of one, Dolours Price, who chose to publicly volunteer her involvement while making some provocative statements.”

“It is a struggle between obligations,” University Spokesman Jack Dunn said in an interview with PBS NewsHour. “We have an obligation as a University to uphold the enterprise of oral history and academic research, which we value greatly, and yet we understand the government’s obligation to comply with the treaty with Great Britain, and I also feel an obligation to the McConville kids, who are looking for answers to the 40-year-old question regarding their mother’s horrific murder.”

Moloney and McIntyre criticized BC for failing to continue the fight against the release of Price’s tapes after the court’s initial ruling, and appealed the decision on the Price tapes independently from the University.

On July 6, Moloney and McIntyre were denied the right to intervene in the case. On July 8, the two announced their intention to file an appeal for a rehearing of the case en banc, which would require that the case be heard in front of the entire appeals court.

On Aug. 20, attorneys Eamonn Dornan and James J. Cotter filed an appeal for a rehearing of the case en banc on behalf of Moloney and McIntyre. In a statement dated Aug. 20, the argument for the rehearing was laid out.

“The First Circuit decision effectively precludes the assertion of U.S. constitutional rights guaranteed in the First and Fifth Amendments to the Constitution,” the two wrote. In addition, they argued that the decision by the First Circuit “bestows upon the PSNI greater powers in relation to the serving of subpoenas in the United States than could be exercised by, for instance, the FBI.”

In addition, the American Civil Liberties Union (ACLU) of Massachusetts announced their intention to file an amicus brief in support of Moloney and McIntyre’s appeal.

Despite their arguments, on Aug. 31 Moloney and McIntyre were denied the right to a rehearing by the First Circuit Court of Appeal, as was the ACLU’s motion.

That same day, Moloney and McIntyre announced their intention for the case to be heard in front of the United States Supreme Court.

“In this case the plaintiffs, Ed Moloney and Anthony McIntyre have been prevented by the First Circuit decision from arguing that the PSNI action is politically motivated and that the material requested by the PSNI was available in Northern Ireland,” the two wrote in a statement dated Aug. 31. “Their lawyers argue that Moloney and McIntyre have been denied their constitutional and statutory rights and protections and suffer violations of constitutional rights if the subpoenas are enforced by the Attorney-General.”

In addition to their appeals of the case in the U.S., Moloney and McIntyre opened a second front in July by filing a review for an injunction of the subpoenas in the Belfast courts.

“The Judicial Review asks that the British Home Office’s request of assistance from the United States be quashed, the subpoenas be declared unlawful, a discontinuation of the PSNI’s application for the material, and for an injunction stopping any material from Boston College being received by the PSNI,” the two wrote in a statement dated July 5.

However, the case did not gain traction and an injunction on the materials was not filed.

While the case of the first set of subpoenas unfolded, BC was involved in a separate case involving a second set of subpoenas.

In August 2011, a separate set of subpoenas had been filed, calling for the release of any material in the Belfast Project archives relating to the disappearance of Jean McConville. Again BC filed a motion to quash the subpoenas, arguing that the subpoena was too broad and threatened oral history as a whole. However, on Dec. 27, 2011, BC was ordered to hand over the tapes by Judge William Young.

Young reviewed the tapes and selected those that he believed fit the description of the subpoena as relating to McConville’s death. Young eventually held that parts of seven different interviews held by BC were relevant to the investigation and should be handed over to the British authorities, a decision which BC appealed, again arguing that the tapes had limited value and the subpoenas were too broad.

Oral arguments for BC’s appeal will begin today, Sept. 6, at the U.S. Court of Appeals in Boston.

“We will argue that the [seven] tapes have limited probative value, and, for the sake of academic research, they should not be turned over to British authorities,” Dunn said. “Our hope is that we will prevail in our case and the only tape which will be subject to transfer to British authorities will be the Dolours Price tape, which was already made public in her interviews with Irish media.”

Unearthing the past may endanger peace process

Unearthing the past may endanger peace process
In light of the appealment of the Belfast Project case, The Heights supports Boston College’s stance
By The Heights Editorial Board
Boston College Heights
Published: Wednesday, September 5, 2012

Today, oral arguments will begin at the United States Court of Appeals in Boston in the latest legal case surrounding the Belfast Project, BC’s oral history project regarding the Troubles in Northern Ireland.

This particular case deals with the subpoena of seven interviews with former IRA members, conducted by Belfast Project researchers, that allegedly relate to the investigation of the disappearance and murder of Jean McConville, an Irish woman killed in 1972. In court, BC will argue that the tapes have “limited probative value” in the investigation, and will attempt to keep the tapes out of the hands of British authorities. The Heights fully supports this decision by the University.

In an editorial published on Nov. 16, 2011, The Heights editorial board wrote, “The Belfast Agreement of 1998, which the U.S. worked to facilitate, assured that offenses that occurred during ‘the Troubles’ would not be reopened for trial … The office acted without regard for the agreement. Many basic questions, including the origination of the subpoena in Northern Ireland, were left unanswered as the subpoena was sealed. Considering the facts of the case, the U.S. and Northern Ireland officials appealed to by the activist groups should heed their concerns.”

In addition, in an editorial published on Jan. 18, 2012, The Heights editorial board wrote, “The Heights believes that releasing tapes unrelated to the murder of McConville would be a mistake, and would endanger the lives of those involved and the reputation of oral history as a whole. It is imperative that [Judge William G.] Young exercise extreme caution when reviewing the Belfast Project.”

We continue to stand by these opinions, and support the University’s appeal against the release of the seven subpoenaed tapes. The Troubles in Northern Ireland were a violent period of conflict that resulted in the deaths of thousands of men and women. The release of interviews relating to the Troubles risks reigniting old tensions and shattering the fragile peace in Northern Ireland. In addition, releasing tapes considered confidential by interviewees greatly threatens oral history as a whole, and may inhibit participation in such projects in the future.

While The Heights recognizes that the death of Jean McConville is a tragic event, the story of McConville is, unfortunately, not unique during the period. Thousands of people on both sides of the conflict were killed throughout the Troubles, and risking an entire peace process for merely a chance at finding the answer to one case appears irresponsible. After all, it remains unclear whether any of the tapes would provide answers to the questions being asked by McConville’s children, or whether testimony in the tapes could even be entered as evidence in a legal case.

In light of the threat that releasing the tapes poses to both Irish peace and oral history, The Heights truly believes that, in this case, the past should remain the past, and the seven Belfast Project interviews being appealed in this case should be kept under lock and key.