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 KINGDOMON MUTUAL ASSISTANCE IN CRIMINAL MATTERS IN THE MATTER OF DOLOURS PRICE, UNITED STATES,
Petitioner – Appellee
TRUSTEES OF BOSTON COLLEGE, ET AL.,
Movants – Appellants
REPLY OF BOSTON COLLEGE TO GOVERNMENT’S RESPONSE TO MOTION TO DISMISS APPEAL AS MOOT
that the caption of these proceedings does not limit the information sought to evidence to prosecute Dolours Price, and
that a specific limitation in the treaty at issue in this appeal (the US-UK MLAT) is not applicable to the subpoenas that are the subject of this appeal. Upon further consideration, Boston College does not contest the Government’s position on the second ground, but does dispute the Government’s position on the first ground, for the following reasons.
The August 2011 subpoenas to Boston College that are the subject of this appeal (“the subpoenas”) were issued in proceedings that the Commissioner captioned “in criminal matters in the matter of Dolours Price.” That caption is the only information Boston College has regarding the subject of the pending proceedings: criminal matters that relate to Dolours Price. Based on that information, when Boston College learned of the death of Dolours Price, it filed a suggestion of death pursuant to Fed. R. App. P. 43(a)(1). Because the only person whom the Commissioner identified as the subject of these proceedings was Dolours Price, and there could be no prosecution of her after her death, Boston College moved to vacate the District Court’s order at issue in this appeal and to
dismiss the appeal as moot.
The Government’s Response (at 6-8) incorrectly asserts that Boston College previously took an inconsistent position in this litigation because it did not object based on the fact that the subpoenas asked for “any and all interviews containing information about the abduction and death of Mrs. Jean McConville.”
The Government’s argument on this point fails to acknowledge the difference between the subject of the proceedings (from the caption, Dolours Price) and the scope of materials sought by the subpoenas issued in these proceedings (information about the McConville abduction and death). Boston College does not argue that the death of Dolours Price affects the scope of the materials the
subpoenas seek. Instead, it contends that the death of Dolours Price moots the need for the information sought by the subpoenas.
The Government’s Response also asserts (at 8) that Boston College is mistaken in concluding, based on the caption the Commissioner himself gave these proceedings, that the criminal matters under investigation are limited to Dolours Price. The Government asserts that its ex parte filings identified subjects of the investigation other than Dolours Price. Boston College has no way to verify the accuracy of the Government’s assertion, because it has been barred from access to the materials on which that assertion is based.
Boston College therefore relies on this Court to determine, from the Court’s own examination of the ex parte materials, whether those materials identify one or more other living individuals against whom criminal prosecution would still be possible, so that these proceedings are not in fact mooted by the death of Dolours Price.
Unless this Court can confirm from examination of ex parte filings by the Government that the subject of these proceedings is not just Dolours Price, but also individuals who are still alive and subject to possible criminal prosecution, this Court should vacate the District Court’s January 20, 2012, Findings and Order and dismiss this appeal as moot.
By their attorney,
/s/ Jeffrey Swope
Jeffrey Swope (BBO# 490760)
Nicholas A. Soivilien (BBO #675757)
EDWARDSWILDMAN PALMER LLP
111 Huntington Avenue
Boston, Massachusetts 02199-7613
Dated: February 20, 2013
Press Statement From Ed Moloney & Anthony McIntyre On US Government’s Decision To Pursue BC Archive Despite Death Of Dolours Price:
“We are not parties to the appeal which Boston College has brought to the First Circuit Court of Appeals (Docket number 12-1236), but our case before the Supreme Court of the United States argues that we are entitled to be heard on these matters which involve the First Amendment rights of academics and journalists to the confidentiality of sources and materials in opposition to subpoenas issued on behalf of foreign law enforcement agencies.
The Government yesterday has admitted that Boston College’s appeal “continues to present a live controversy” in spite of the death of Dolours Price, whose public remarks were presented as the excuse by foreign law enforcement agencies to raid a confidential academic archive housed at Boston College.
The irony is not lost on us that the government subpoenas remain under seal, and the basis of its actions shielded from public scrutiny.
We will continue to press ahead with our petition to the Supreme Court for a writ of certiorari, and we will keep a watchful eye on developments in the Boston College appeal as they unfold.”
Officials still seek BC tapes on IRA
By Travis Andersen
GLOBE STAFF Boston Globe
FEBRUARY 12, 2013
A federal prosecutor said Monday that authorities are still entitled to materials from a Boston College oral history project documenting the Irish Troubles, despite the death last month of a key participant in the endeavor.
“In its [filing on Jan. 28], Boston College does not advance any developed argument as to why Price’s death renders this appeal moot,” Kromm wrote.
Jack Dunn, a Boston College spokesman, said in an e-mail that Kromm’s filing was expected. “Today the US government simply opposed our motion from last week that asked the court to dismiss our case because of the death of Dolours Price,” he wrote.
The Belfast Project is a collection of interviews with former members of the IRA and other militia groups who fought during the Troubles, a tumultuous period in and around Northern Ireland that took the lives of more than 3,000 people. Project participants consented to interviews with the understanding that their statements would be kept confidential until their deaths.
In early 2011, federal prosecutors issued subpoenas for interviews with Price and Brendan Hughes, a former IRA member who died in 2008, on behalf of authorities investigating the 1972 abduction in Belfast and murder of Jean McConville, a mother of 10 who was killed because she was suspected of being an informant against the IRA.
A second subpoena was later issued for “any and all” interviews that contained information about McConville’s death.
Boston College turned over the materials concerning Hughes but initially fought the release of the Price recordings. The college ultimately turned over the Price materials, but their delivery to British authorities has been stayed pending a separate appeal by project researchers Ed Moloney and Anthony McIntyre with the US Supreme Court.
Prosecutors based their subpoenas on a treaty between the US and the United Kingdom that requires the nations to share information that could aid in criminal investigations. Boston College and others have argued that turning over the interviews could have a chilling effect on academic research, imperil the peace process in Northern Ireland, and subject project participants to retaliatory attacks. BC continues to fight the release of additional interviews with project participants, which is at issue in its case before the appeals court.
“Boston College’s claim that the case caption shows that the government’s requests only sought evidence against Price personally is at odds with the record and, indeed, with Boston College’s own litigating position in the district court and on appeal,” Kromm wrote in Monday’s filing. He added that the investigation into McConville’s death “was not limited to seeking materials for the purpose of prosecuting Price.”
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
Appeal 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,
TRUSTEES OF BOSTON COLLEGE, ET AL.,
GOVERNMENT’S OPPOSITION TO BOSTON COLLEGE’S MOTION TO DISMISS ITS APPEAL AS MOOT
“On January 28, 2013, Boston College filed a Notice of Suggestion of Death informing the Court of the death of Dolours Price. In the Notice, Boston College stated, without developed argument, that Price’s death required that the district court order appealed from be vacated and the appeal dismissed as moot. That claim is meritless. Price’s death does not undercut the validity of the district court’s order requiring Boston College to provide certain documents to the government in response to subpoenas issued by the United States pursuant to the Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland on Mutual Legal Assistance in Criminal Matters (“the US-UK MLAT”). As a result, Boston College’s appeal from that order continues to present a live controversy.”
In moving to dismiss, Boston College does not dispute the facts set forth in prior filings in this appeal and in this Court’s decision affirming other orders granted in the same matter, In re: Request from the United States 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 (“In re: Request”), 685 F.3d 1 (1 Cir. st 2012), petition for cert. filed, 81 USLW 3336 (Nov. 16, 2012) (12-627). As set forth therein,1 the relevant facts are as
On March 30, 2011, the United States submitted an application, ex parte and under seal, for the appointment of a Commissioner “to collect evidence from witnesses and to take such other action as necessary to effectuate a request from law enforcement authorities in the United Kingdom.” In re: Request, 685 F.3d at 6. “The application resulted from a formal request made by the United Kingdom . . . for assistance in a pending criminal investigation in that country involving the 1972 murder and kidnapping of Jean McConville.” Id. The district court subsequently entered an order granting the appointment. Id.
The Commissioner issued two sets of subpoenas to Boston College and its personnel pursuant to this appointment seeking interviews collected as part of the so called “Belfast Project.” Id. The first subpoenas sought interviews conducted with Brendan Hughes and Dolours Price. Id. Boston College turned over the Hughes materials but not those of Price. Id. The second set of subpoenas, issued in August 2011, more broadly sought recordings of “any and all interviews containing information about the abduction and death of Mrs. Jean McConville.” Id. at 6-7.
Boston College sought to quash both sets of subpoenas, arguing, among other things, that the Belfast Project materials should be protected as confidential academic research materials, that disclosure of the materials would have a chilling effect on future oral history projects, and that it would expose the interviewers involved in the project to possible retaliation. [Add.8, 34; JA:54-57; see also D.5, 12]. Boston College also requested, in the alternative, that the district court (Young, J.) undertake an in camera review of the documents to determine their responsiveness to the subpoenas. [D.5]. On December 16, 2011, the district court issued a memorandum and order denying Boston College’s motions to quash, but granting the request for in camera review. [Add.48]. Boston College did not appeal from the December 16, 2011 memorandum and order. In re: Request, 685 F.3d at 8.
Although Boston College did not appeal from the denial of its motions to quash, it continued to litigate the question of what documents should be produced in response to the subpoenas. In this litigation, Boston College did not argue, based on the caption of the case or any other ground, that the subpoenas were improper to the extent they sought information other than that implicating Price personally. Boston College argued, instead, that, in light of First Amendment concerns, the district court should screen the documents for relevance to the McConville abduction and murder. [JA:192]. The government, in turn, argued that the subpoenas should be construed broadly and submitted ex parte materials in support of that position. [JA:155; S.App.6-14].
On December 27, 2011, the district court issued an order requiring Boston College to turn over the Price materials in their entirety, which Boston College did not appeal. [D.38]. On January 20, 2012, the court issued a Findings and Order addressing the August subpoena, ordering the production of the full sets of interviews from five interviewees and individual interviews from two others. [Add.51-55]. Boston College appealed from this order, arguing generally that the district court abused its discretion in ordering the production of documents without requiring that they be “directly relevant” to the McConville abduction. [See Br.39]. Boston College did not argue that the scope of production should be further limited to those documents implicating Price personally in the abduction.
I. THE DEATH OF DOLOURS PRICE DOES NOT INVALIDATE THE DISTRICT COURT’S ORDER AND, THUS, DOES NOT MOOT THIS APPEAL.
“An appeal becomes moot if an intervening event strips the parties of any legally cognizable interest in its outcome.” Connectu LLC v Zuckerberg, 522 F.3d 82, 88 (1 Cir. 2008). Where a party moves st to dismiss an appeal on grounds of mootness, “[t]he burden of establishing mootness rests with the party urging dismissal,” and that burden, the Court has emphasized, “is a heavy one.” Id.
In its Notice, Boston College does not advance any developed argument as to why Price’s death renders this appeal moot. Instead, it merely presents a series of brief factual statements accompanied by the conclusory claim that these statements “mean” that Price’s death deprives the government of any right to obtain the documents that are the subject of this appeal. [Notice ¶¶1-5]. Such a skeletal argument would ordinarily be deemed waived, see United States v. Zannino, 895 F.2d 1, 17 (1990) (noting the “settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by developed argumentation, are deemed waived”), but, because the argument in theory raises a question of this Court’s authority to hear the appeal, a response to the substance of Boston College’s argument is warranted. See Connectu, 522 F.3d at 88 (“Because the inquiry into whether an appeal has become moot implicates a foundational question, sound practice dictates that we give that inquiry priority and conduct it as a threshold matter.”). As explained below, the argument is meritless.
Boston College’s argument for mootness rests on two propositions. First, Boston College contends that the caption assigned to the case in the district court demonstrates that the subpoenas were intended only to obtain information that could be used to prosecute Price herself. [Notice ¶¶1, 5]. Second, Boston College contends that, because Price is dead and cannot be prosecuted, the US-UK MLAT cannot support a request for legal assistance, because it provides that legal assistance is “not . . . available for matters in which the administrative authority anticipates that no
prosecution or referral, as applicable, will take place.” [Notice ¶3]. Both propositions are mistaken.
Boston College’s claim that the case caption shows that the government’s requests only sought evidence against Price personally is at odds with the record and, indeed, with Boston College’s own litigating position in the district court and on appeal. Nothing in the subpoenas themselves supports such a limited reading – the subpoenas that are the subject of this appeal broadly requested materials relating to “any and all interviews containing information about the abduction and death of Mrs. Jean McConville,” which very well might include interviews implicating persons other than Price in McConville’s death. [Add.4]. Nor do the proceedings in the case indicate that the district court or any party believed that the subpoenas or the investigation should be construed so narrowly. To the contrary, statements by the district court and the parties reflect that it was understood that the subpoenas generally sought, at the least, all documents relevant to the investigation of McConville’s death, not merely those that might implicate Price. [See, e.g. JA:143-45 (discussion of process and search terms that could determine what materials related to McConville), 153-55 (same)]. The only area of dispute was to what extent the request extended to materials that did not directly address the McConville murder. [See, e.g., JA:191-92].
This understanding of the scope of information sought is reflected in this Court’s opinion in In re: Request, see 685 F.3d at 3 (noting that the subpoenas were “part of an investigation . . . into the 1972 abduction and death of Jean McConville” and that the second set of subpoenas “sought any information related to the death or abduction of McConville”) (emphasis added), and was not challenged by Boston College in this appeal. [See Br.34 (arguing only that the district court used the “wrong test” in determining what documents should be disclosed in response to subpoenas “seek[ing] information about the abduction or death of Jean McConville”)]. It is also confirmed by the ex parte documents filed by the government in the case, which establish beyond dispute that the request for assistance and the government’s application in the district court were not limited to a search for documents bearing on Price’s personal culpability. [See generally D.2 & Exhibits;
see also S.App.3-4]. Against this backdrop, Boston College’s claim that this Court should infer a narrower scope of the investigation based merely on the district court caption is untenable.
Because the investigation was not limited to seeking materials for the purpose of prosecuting Price, Boston College’s treaty-based argument, which relies on that mistaken premise, cannot succeed. In any event, this argument also fails on the merits, for two reasons. First, the treaty provision on which Boston College relies is not, in fact, implicated in this case. The request in this case was made pursuant to Article 1 of the US-UK MLAT, which, in conjunction with Article 19, provides that “Parties shall provide for mutual legal assistance . . . for the purpose of proceedings”
that include “any measure or step taken in connection with the investigation or prosecution of criminal offenses.” See US-UK MLAT, Arts. 1, 19. Article 1bis expands the obligation to provide assistance under Article 1 to include instances where assistance is requested by a “national administrative authority,” but limits this expanded authority to circumstances where the administrative authority is conducting an investigation “with a view to a criminal prosecution” or a referral to investigation or prosecution authorities. See US-UK MLAT Art.1, §1bis. That provision, and its
limitations, does not apply here. [See D.2, p.1].
Second, as this Court affirmed in In re: Request, the US-UK MLAT by express terms precludes a private party from refusing to comply with a request for production of documents on the ground that the requirements of the treaty have not been followed. See 685 F.3d at 12-13. Thus, even if Price’s death did call into question whether the United States was still required to provide the documents to the UK pursuant to the treaty, which it does not, that would not absolve Boston College of its obligation to provide the documents to the United States and this appeal would remain viable.
In light of the above, Boston College has not met its burden of establishing that the government has no “legally cognizable interest in the outcome” of this appeal. Connectu LLC, 522 F.3d at 88. To the contrary, the government is entitled to enforcement of its subpoenas as provided for in the district court’s order. Thus, unless Boston College wishes to simply comply with that order, the appeal presents a live case or controversy and is not moot.
For the foregoing reasons, the government respectfully requests that Boston College’s motion to dismiss its appeal as moot be denied.
CARMEN M. ORTIZ
United States Attorney
By: /s/ Randall E. Kromm
RANDALL E. KROMM
Assistant U.S. Attorney
1Citations are as follows. The citation “[Notice ¶_]” refers to Boston College’s Notice of Suggestion of Death. The citations “[Br._],” “[Add._],” and “[JA:_]” refer, respectively, to Boston College’s brief, addendum, and joint appendix. The citation “[S.App._]” refers to the ex parte supplemental appendix filed by the government. The citation “[D._]” refers to a docket entry in the district court case.
University Files To Close Belfast Project Case
By David Cote
Editor-in-Chief The Heights
Published: Tuesday, January 29, 2013
In light of the recent death of ex-IRA member Dolours Price, Boston College recently filed a motion in the United States First Circuit Court of Appeals arguing that the legal case surrounding the Belfast Project subpoenas should be closed.
The University has argued that Price’s death ends the investigation of her involvement in the murder of Jean McConville, the supposed motivation for the original subpoenas.
“The government identified this case as ‘in criminal matters in the matter of Dolours Price,’ and the Mutual Legal Assistance Treaty on Criminal Matters invoked by the UK and U.S. government in this case provides that the treaty does not pertain to matters in which the government anticipates that no prosecution will take place,” said University Spokesman Jack Dunn in an email. “Given that Dolours Price has died, the University believes that the case should be dismissed.”
Belfast Project director Ed Moloney, in a joint press release with project researcher Anthony McIntyre, pointed out that Price’s death should not result in the release of the tapes.
“There are other subpoenas outstanding and as far as we are concerned the same issues affect them as they did Dolours Price’s case and we look forward to continuing the fight with renewed vigor to stop the remaining Belfast Project interviews from being handed over,” the two said.
Dunn stated that the University is continuing to keep its options open as the case proceeds.
“We continue to seek a resolution of this matter either through legal or diplomatic means,” Dunn said.
The Belfast Project materials currently remain under a stay by the U.S. Supreme Court, pending decision on an appeal to the Court made by Moloney and McIntyre.
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,
Petitioner – Appellee
TRUSTEES OF BOSTON COLLEGE, ET AL.,
Movants – Appellants
NOTICE OF BOSTON COLLEGE OF SUGGESTION OF DEATH
Pursuant to Fed. R. App. P. 43(a)(1), Appellants Trustees of Boston College and two of its representatives, Robert K. O’Neill, the Librarian of the John J. Burns Library at Boston College, and Boston College University Professor Thomas E. Hachey (collectively, “Boston College”), notify the Court of the death of the Dolours Price, the subject of this matter as identified in the caption of the case.
1. The Commissioner’s August 2011 subpoenas to Boston College that are the subject of this appeal (“the subpoenas”) captioned the proceedings as “in criminal matters in the matter of Dolours Price.”
2. The subpoenas were issued pursuant to the Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland on Mutual Legal Assistance in Criminal Matters (S. Treaty Doc. No. 109-13) (the US-UK MLAT).
3. Article 1, Section 1bis [second] of the US-UK MLAT provides that assistance from the United States under that treaty “shall not be available for matters in which the administrative authority anticipates that no prosecution or referral, as applicable, will take place.”
5. Her death means that criminal matters of Dolours Price can no longer be the subject of any prosecution or referral, and as a result the provisions of the US-UK MLAT pursuant to which the subpoenas were issued are no longer available.
Belfast Court Issues Stay On Materials
By David Cote
News Editor The Heights
Published: Sunday, September 9, 2012
Editor’s Note: This story is part of an ongoing series about the subpoenas of the Belfast Project.
As the legal battle over the fate of the Belfast Project tapes continues in the United States Court of Appeals in Boston, and an appeal to the U.S. Supreme Court is in the works on behalf of researchers Ed Moloney and Anthony McIntyre, the two earned a small victory on Friday in the Belfast courts. The Irish High Court issued an injunction on Friday afternoon, temporarily preventing the Police Service of Northern Ireland (PSNI) from accessing any interviews from the project that may be turned over as a result of the subpoenas.
The injunction will prevent any and all tapes, including those recorded with former IRA member Dolours Price, from falling into the hands of the British authorities, despite the U.S. appeal court ruling last month that the tapes be handed over.
According to arguments made by lawyers on behalf of Moloney and McIntyre, releasing the tapes to the PSNI would put the lives of the researchers and those who participated in the interviews at risk due to the sensitive nature of the material disclosed.
“The PSNI seeing or receiving this material is going to be putting the applicant’s life at risk,” said David Scoffield on behalf of McIntyre, according to the BBC.
In addition, Scoffield argued that the injunction he wished was only temporary, until Moloney’s judicial review could be assessed.
Judge Justice Treacy pointed out that the appeal in the Belfast courts seemed to be a direct response to recent rulings in the U.S. preventing Moloney and McIntyre from interceding in the Belfast Project case.
“It seems a bit rich, having taken that step, then coming to this court having failed in America, to seek to restrict the police access to this material in discharging their obligation to investigate serious crime,” Treacy said, according to the BBC.
Treacy granted the temporary injunction, but emphasized that the injunction is directed only to the PSNI, and not American authorities.
“There is no question whatsoever of this being an injunction directed towards any American authorities,” Treacy said. “The interim relief is directed solely at the PSNI and any other relevant UK authorities.”
While the stay remains in place, two legal cases continue in the U.S. The first, involving lawyers representing BC, seeks to reverse Judge William G. Young’s ruling that seven Belfast Project tapes should be handed over to the PSNI in relation to the investigation of the murder of Jean McConville in 1972. BC has argued that the tapes have “limited probative value” to the investigation and should remain confidential.
The second case, proceeding on behalf of Moloney and McIntyre, seeks a stay on all Belfast Project tapes, including those with Price.
“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,” Moloney said in a press release dated Sept. 6.
The temporary injunction issued by the Belfast court will remain in place until the researchers’ judicial review challenge is heard.
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.
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,
Petitioner – Appellee
TRUSTEES OF BOSTON COLLEGE,
Movant – Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
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.
Attorney Jeffrey Swope (*JS*) makes the oral arguments for Boston College
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…
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.
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.
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.
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.
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.