ACLU Files Amicus Brief in Support of Appellants Moloney & McIntyre

Boston College Subpoenas Would “Transform Interviewers and Interviewees Into Informers” and Liable to Execution by IRA – ACLU Amicus Brief

The two people at the center of the controversial Boston College Tapes case, former Belfast Project Director and journalist, Ed Moloney and IRA interviewer and academic, Anthony McIntyre, today welcomed the intervention of the Massachusetts affiliate of the American Civil Liberties Union (“ACLUM”) in support of their appeal before the United States Court of Appeals for the First Circuit, which is due to hear their appeal in early April.

In its extensive and hard-hitting amicus brief, ACLUM confirmed that the interviewers for the oral history project on the Troubles in Northern Ireland run by Boston College could face an IRA death penalty if the US government’s bid to force the handover of interview materials was to succeed. The ACLUM’s amicus brief was prepared independently without input from the Appellants or their attorneys.

Noting that the killing of suspected informers by paramilitary groups has continued in Northern Ireland despite the Good Friday Agreement and that IRA rules forbid the disclosure of it secrets by members, the ACLUM, said: “The forced turnover of interview materials will convert the interviewees and their interviewers into informants…..in the name of solving a 40-year-old murder, the Government risks subjecting multiple participants in the Belfast Project to the ultimate retaliation.”

ACLUM also raised concerns that the District Court’s denial of a motion to intervene filed by the two academics “will have a detrimental effect on the First Amendment activities of academics, as well as on others who gather information of legitimate public concern for dissemination to the public.” The ACLUM argues that it believe that “the academics who gathered that information under a pledge of confidentiality should be permitted to intervene and participate in the outcome of the case.”

ACLUM is also concerned that if the tapes are released, it may make it “more difficult for all those who hold confidential information about individuals — an increasingly common event in the modern digital age — to have a right to be heard in opposition to efforts by public or private parties to compel the disclosure of such information.”

Alluding to the dangers of the UK government seeking confidential archives outside its jurisdiction, ACLUM further raised concerns about the U.S. government’s argument that “governments who are parties to Mutual Law Assistance Treaties should have greater rights than United States federal and local law enforcement authorities to subpoena documents without judicial review.”

The ACLUM dismissed the Government’s argument that Moloney and McIntyre had undermined their claim of risk to their personal safety when they decided to publicize the fact that the subpoenas had been issued as “reminiscent of an argument that might have been made by Joseph K’s accusers in Kafka’s The Trial. A witness’s decision to fight the government’s behind-closed-doors decisions affecting the witness’s welfare is not grounds, in this country at least, to impeach the witness’s motives for applying to the court for relief.”

Calling police efforts over the past forty years to solve the murder at the center of the subpoenas – that of alleged British Army spy Jean McConville in 1972 – a “non-investigation”, while charting in detail police refusal to co-operate in inquiries into their own collusion with Loyalist death squads, the ACLUM raised the possibility that the real purpose of the subpoenas is to embarrass the Sinn Fein president, Gerry Adams who is alleged to have ordered Mrs McConville’s death. It added that the “PSNI/RUC’s self-inflicted wound, their sorry record of non-performance over more than 40 years, does not justify an invasion of academic freedom and the likely destruction of much of this valuable historic research.”

“Academic freedom should not pay the price for the constable’s incompetence. This saga of non-performance by the police does not justify a chilling invasion of the Belfast Project’s oral history efforts”.

The U.S. Government’s efforts to deny Moloney and McIntyre intervention in the case would, if applied to MLAT’s with other countries, deny US citizens the legal safeguards they enjoy at the hands of domestic law enforcement agencies, the ACLUM said, and prevent their intervention to challenge executive decisions in such controversial, bizarre and disturbing cases as:

  • Russia’s prosecution of a dead man, Sergei Magnitsky, who died in prison after torture;
  • The Chinese government’s prosecution of Nobel Prize winner, Liu Xiaobo;
  • The arrests and prosecution of US non-governmental organizations by the Egyptian government;
  • The justification of sexual harassment at work by a Russian judge on the grounds that otherwise “we would have no children”.

Calling the District court’s decision to prevent Moloney and McIntyre from defending the pledges of confidentiality they gave interviewees for the Belfast Project “an alarming and unprecedented infringement on First Amendment interests”, the ACLUM described their interests in protecting the confidentiality pledge, “a textbook case for intervention”.

ACLU Motion for Leave to File Amicus Brief

Amicus Curiae Brief of ACLU in Support of Appellants Moloney & McIntyre