The government has filed its brief novella in the legal appeal by Belfast Project researchers Ed Moloney and Anthony McIntyre. Ted Folkman has already posted his legal analysis, noting some things along the way that surprised him: ” Most boldly, the government goes for it and argues that there simply is no First Amendment academic’s privilege.”
Of course, the government is quiteboldlygoingforit in arguments against the First Amendment all the time, these days, so I take that boldness as part and parcel of a larger assault on civil society. In 2012, the pattern is well established: Yes, government is going to boldly go for it and argue against our First Amendment “privileges.” (See also.)
In any case, my plan was to read the government’s brief this morning and then write a long post about it. But the government destroyed my plans with the raw power of their comedy gold, and now I’m just going to start posting as I go through the awful thing. The government’s novella is below, if you feel like tasting your own bile. While laughing! It’s sort of a repulsive comedy effect, and someone should add the U.S. Attorney’s Office for the District of Massachusetts to this page. They’ve earned it.
Start with this great piece of narrative juxtaposition, from pg. 25 (of the PDF file, which is numbered as pg. 13 in the brief). First, the government’s novella concludes a paragraph with the argument that Moloney and McIntyre shouldn’t be permitted to intervene: “Their interests were fully and forcefully advanced by Boston College.” So the researchers shouldn’t be allowed to participate in any effort against the subpoenas, because BC is already waging the whole fight — the university is “fully and forcefully” contesting any issues that its researchers could possibly raise.
Very next sentence, starting the following paragraph, with emphasis added: “The district court’s proper denial of appellants’ motion to intervene forecloses review of the merits of the court’s ruling on the motion to quash, as neither Boston College nor the government appealed that ruling.”
So BC’s interests are the interests of its researchers; there can be no sunlight between them, because BC is “fully and forcefully” fighting out all the issues the researchers might raise. And, anyway, why are we still talking about this stuff the researchers keep bringing up — doesn’t the court realize that BC already gave up on this part?
Boston College is fully and forcefully advancing the interests of its researchers by not appealing the ruling the researchers wish to appeal. Back to back sentences. Not the first time I’ve wondered: Does the government require that its lawyers be willfully obtuse as a condition of hiring, or is it something they learn on the job?
Gov’t to Judge: This is Gonna Be a Little Harder Than We Thought Chris Bray
FRIDAY, MARCH 9, 2012
Several developments in the legal appeals over the subpoenas of Belfast Project interviews at Boston College:
First, the U.S. Attorney’s Office in Boston has asked the First Circuit for an extra business day to submit its response to a pair of appeals filed by Belfast Project researchers Anthony McIntyre and Ed Moloney, and to the amicus brief filed by the ACLU of Massachusetts. The government’s brief is below, but here’s the most important piece:
The arguments in these appeals raise a number of issues of first impression regarding the rights of third parties to intervene in or otherwise effect proceedings under the MLAT. In addition, because the appeals implicate an international treaty as well as issues of domestic civil and criminal law, a number of departments of the United States have requested that they be allowed to review and comment on the government’s brief. A draft of the brief has been completed. In order to allow sufficient time for the brief to be reviewed and reviewer comments to be incorporated into the draft, however, the government requests that its deadline be extended by one business day.
In a single paragraph, the DOJ conveys the exceptional importance of the aggressive legal effort from Moloney and McIntyre. With Boston College making no more than limp and polite gestures at challenging these subpoenas, a pair of independent researchers chose to go it alone — aided by capable lawyers, and now joined by the ACLUM — and to fight like hell. The U.S. Attorney’s Office never broke a sweat working against BC’s sad efforts, but now it faces a legal battle over “a number of matters of first impression” that demand the immediate attention of “a number of departments” of the federal government. These appeals will make case law that will define the relationship between researchers and the government for decades to come. Academic news media, get off your asses and pay attention.
Meanwhile, Boston College wages its own halfhearted appeal over a limited portion of the contested subpoenas. On April 4, BC’s lawyers will be in the federal courthouse in Boston at the same time as McIntyre and Moloney’s lawyers. But they won’t be in the same room: While lawyers present oral argument in the researchers’ appeal, BC will be down the hall in a mandatory pre-trial settlement conference with the government:
When BC filed its appeal, there was some speculation that their case would be consolidated with the appeals filed by the Belfast Project researchers. The scheduling of these two events on the same day shows that no consolidation is possible. BC and its researchers will undertake wholly distinct efforts. Given the uselessness of BC’s half-assed and sadly limited appeal, that’s for the best.
Leaders’ BC appeal in advance of Cameron visit Irish Echo
BY RAY O’HANLON
MARCH 7TH, 2012
Three of the most prominent Irish-American organizations have issued a joint statement on the Boston College archive case in advance of next week’s meeting in Washington between President Barack Obama and British Prime Minister David Cameron.
The three, Ancient Order of Hibernians, Brehon Law Society and Irish American Unity Conference, called for the withdrawal of the Police Service of Northern Ireland’s request for records held in the Burns Library of Boston College.
“The records are sought as part of a smear campaign against Irish TD Gerry Adams and Sinn Féin’s campaign in the most recent Irish general election,” said a statement accompanying the appeal.
In addition to a joint statement, the three signatories to the appeal expressed their own positions on an issue that has led to significant debate and multiple court hearings.
National President of the AOH, Seamus Boyle, stated: “In this post-conflict period we would expect Prime Minister Cameron to correct this mistake by withdrawing an invalid request for records which could not be part of a criminal prosecution and which was more likely aimed at interfering politically in Ireland’s election process.”
Jim Cullen of the Brehon Law Society stated: “While rogue elements of the RUC embarrass Attorney General Holder with this mischievous request for academic research we hope the president queries Mr. Cameron’s refusal to provide the promised public inquiry into the murder of human rights lawyer Patrick Finucane by British security forces, and the failure of Britain to fully respond to the Irish governments request for information about the British Army’s role in the Dublin-Monaghan bombings, which led to the largest loss of life during the decades of conflict in Northern Ireland.”
Cullen’s reference to the RUC, the PSNI’s predecessor, is a reflection of a widely held view that former RUC officers now in the PSNI are behind the efforts to lay hands of archived files at Boston College related to the Northern Ireland Troubles.
For his part, Thomas Burke, National President of the IAUC concluded: “When Prime Minister Cameron acknowledged Britain’s 40 years of lying about Bloody Sunday murders we thought a new day had dawned. Now all we can ask is: how long must America turn a blind eye to this history of violence and deceit in Ireland?”
The three leaders said they were adding their voices to the statement from Senator John Kerry, chairman of Senate Foreign Relations, asking Secretary of State Hillary Clinton to persuade the British government to revoke the archives request “so that we can continue the process in Ireland of building a true peace based on justice and respect for the rule of law.”
In their joint statement the three leaders said: “We are united in our belief that the Attorney General of the United States, by his issuance of subpoenas to Boston College, has misused and undermined the primary purpose of the U.S.-UK Mutual Legal Assistance Treaty ie. the prompt exchange of information in aid of criminal prosecution of international drug trafficking and related money laundering.
Moreover, the Attorney General failed to first determine if the requested data was part of a bona fide criminal prosecution. It is not. He failed to first determine if by granting this request the Irish peace process could be imperiled. It will be. He failed to first examine the concerns of U.S. Senators for the misuse of the U.S.-UK Extradition Treaty. Their concerns were justified.
“We urge the Attorney General to refuse the request of the UK as an improper use of the Mutual Legal Assistance Treaty and to work with the Senate to prevent its further abuse, especially in the related areas of academic inquiry, personal privacy and protection of constitutional freedoms raised by the litigation.
STATEMENT OF COALITION Ancient Order of Hibernians • Brehon Law Society • Irish American Unity Conference
We are united in our belief that the Attorney General of the United States, by his issuance of subpoenas to Boston College, has misused and undermined the primary purpose of the US-UK Mutual Legal Assistance Treaty, i. e., the prompt exchange of information in aid of criminal prosecution of international drug trafficking and related money laundering.
Moreover, the Attorney General failed to first determine if the requested data was part of a bona fide criminal prosecution.
It is not.
He failed to first determine if by granting this request the Irish peace process could be imperiled.
It will be.
He failed to first examine the concerns of U. S. Senators for the misuse of the US-UK Extradition Treaty.
Their concerns were justified.
We urge the Attorney General to refuse the request of the UK as an improper use of the Mutual Legal Assistance Treaty and to work with the Senate to prevent its further abuse, especially in the related areas of academic inquiry, personal privacy and protection of constitutional freedoms raised by the litigation.
Seamus Boyle National President Ancient Order of Hibernians
Robert Dunne President Brehon Law Society
Thomas J. Burke Jr. National President Irish American Unity Conference
CAMERON-OBAMA TALKS MUST ADDRESS UK POLITICAL FISHING EXPEDITION IN BOSTON COLLEGE ARCHIVES: IRISH AMERICAN GROUPS
ANCIENT ORDER OF HIBERNIANS: www.aoh.com
BREHON LAW SOCIETY: www.brehonlawsociety.org
IRISH AMERICAN UNITY CONFERENCE: www.iauc.org
Washington, D. C., Philadelphia, & New York City
Three major Irish-American groups today issued a statement prior to the meeting between President Barack Obama and Prime Minister David Cameron. They appealed for the withdrawal of the British request for records held in the Burns Library of Boston College. The records are sought as part of a smear campaign against Irish TD Gerry Adams and Sinn Fein’s campaign in the most recent Irish General Election.
National President of the AOH Seamus Boyle stated: “In this post-conflict period we would expect Prime Minister Cameron to correct this mistake by withdrawing an invalid request for records which could not be part of a criminal prosecution and which was more likely aimed at interfering politically in Ireland’s election process.”
“While rogue elements of the RUC embarrass Attorney General Holder with this mischievous request for academic research,” stated Jim Cullen of the Brehon Law Society, “we hope the President queries Mr. Cameron’s refusal to provide the promised public inquiry into the murder of human rights lawyer Patrick Finucane by British security forces and the failure of Britain to fully respond to the Irish governments request for information about the British Army’s role in the Dublin-Monaghan bombings, which led to the largest loss of life during the decades of conflict in Northern Ireland.”
Thomas Burke, National President of the IAUC concluded: “When Prime Minister Cameron acknowledged Britain’s 40 years of lying about Bloody Sunday murders we thought a new day had dawned. Now all we can ask is: How long must America turn a blind eye to this history of violence and deceit in Ireland?”
The leaders joined their appeal with Senator Kerry, the Chairman of Senate Foreign Relations, in asking Secretary of State Clinton to persuade the British government to revoke this request so that we can continue the process in Ireland of building a true peace based on justice and respect for the rule of law.
It wouldn’t be a glorious St. Patrick’s Day without a political donnybrook and this year’s involves an old nemesis at center stage in the White House. U. K. Prime Minister David Cameron is in town with a shopping list that includes securing records held from Boston College’s Irish archives.
Irish American groups are irate with Attorney General Holder who issued a sealed subpoena to get confidential tapes for the British. That’s right. The man whose plate, politically speaking, includes the Fast and Furious scandal, suing States for crackdown on illegal immigrants, failure to defend the Defense of Marriage Act and giving a wink and nod to the British release of the Pan Am bomber has now managed to annoy Senator John Kerry, Chairman of Senate Foreign Relations. He was a key vote in 2006 for the ratification of the Mutual Legal Assistance Treaty, intended for drug money laundering prosecutions, which Britain is now using to extract records from Boston College.
The Senator smells a rat. First, the request emanated from the Royal Ulster Constabulary, the most lawless and political police force in Europe and was NOT drug related. Second, a disgruntled former RUC officer and MI-5 liaison seeking revenge sought the records about a 1972 killing of a British spy, months after the British Army’s Bloody Sunday rampage. The records purportedly implicate Gerry Adams, an architect of the 1998 peace pact. But why use this Treaty and why go to the U. S. when the best evidence would be the sworn testimony of the interviewee who lives in Ireland? The British tried it the easy way by slipping the request past the clueless Holder. Why? So Adams could be politically smeared in time for the 2011 Irish General Elections. Dare we note the Sinn Fein party platform was incandescent with rhetoric about payments to British banks for the crisis bailout?
The United States, much to British dismay, was instrumental in crafting the 1998 Agreement which silenced the arms and demilitarized the six counties of Ireland. Britain since then seems determined to ignore key provisions or undermine the spirit of the accord. President Obama said little of the peace process during his 48 hour stopover in Ireland last year but he has heard an earful since of fears that Holder’s subpoena of Boston College records makes the U. S. complicit in Britain’s malicious mischief. Consider Cameron’s first two years:
• Britain finally stops lying about Bloody Sunday but holds no one accountable for 13 murders and the awards for slaughter stand;
• Cameron refuses the promised public inquiry into the murder of human rights lawyer Patrick Finucane admittedly by British ‘security’ forces;
• the British refuse to provide information to the Irish government about the British Army role in the Dublin-Monaghan bombings, the conflicts largest loss of life; and
• political prisoners Gerry McGeough and Marian Price are locked up in solitary in ill health and law and logic are twisted to keep them mysteriously detained.
President Obama declared March Irish-American Heritage month so what better time to remind the British Prime Minister of America’s commitment to the Irish peace process founded on the American values of truth, justice and the rule of law. Senator Kerry has his questions but it remains to be seen if the President does. Either way Mr. Cameron has a lot of explaining to do to Irish Americans.
The Short Show: Interview with Chris Bray and Carrie Twomey
The John Smart Show BlogTalkRadio
Sat, March 3, 2012
As we head into March, “Irish History Month“, we have a special interview with Carrie McIntyre and Chris Bray. The Belfast Project, Boston College and the story of the Sealed Subpoenas is here. This case touches everything from the value of history, the ugliness of the Troubles, and academic freedom. Listen.
John Smart (JS) interviews Chris Bray (CB), Carrie Twomey (CT) and Dr. Anthony McIntyre (AM) about the subpoena issued to Boston College for the records of interviews of former combatants in The Troubles and held in archive at The Burns Library and called The Belfast Project.
John Smart (JS): Good Morning! It’s Saturday, March 3rd. This is John Smart. This is The Short Show. Though that’s a bit of a misnomer this week as we’re gonna go on for up to an hour, for as long as it takes, to cover a very interesting topic. The Belfast Project was an Oral History of Irish Republican and Loyalist paramilitaries gathered between 2001 and 2006 and archived in The Burns Library at Boston College in Boston. In 2010, the first interviews from the archive were published in the book, Voices From the Grave, and featured in a documentary of the same name. These interviews with former IRA leader, Brendan Hughes, and former UVF member, David Ervine, were made public upon the death of the interviewees as per an agreement with Boston College.
However, and this is where we begin our story for today’s show, in March, 2011 the British government contacted the US Department of Justice to initiate proceedings which led to the issuing of a sealed subpoena for all materials relating to two interviews, just two, in the archive, those of Brendan Hughes and former IRA member Dolours Price. Dolours Price’s interviews are still embargoed under the terms of an agreement that she has with The Burns Library. Then in August of 2011, a second subpoena was served seeking any and all interviews containing information about the abduction and death of Mrs. Jean McConville, remember that name, Jean McConville. Ed Moloney and Anthony McIntyre, Mr. McIntyre’s one of the historians doing the interviews and the research, also sought to intervene on their own merits in the Boston College tapes action in support of Boston College’s Motion to Quash; Boston College did put forth a Motion to Quash the subpoena from the US Department of Justice which got a request from the British government. That’s where we stand now.
I interviewed Carrie McIntyre, the wife of Anthony McIntyre, one of the historians involved, and Mr. Chris Bray, who is a PhD candidate researching (and) who’s done a lot of work on this issue. He is a PhD candidate in the History Department at UCLA, a former United State Army soldier and a journalist. I interviewed them both on the issues surrounding this subpoena from the US Department of Justice in early February. This is important because it goes to issues of academic freedom in the United States. Chris, can you give us an overview of how this all started? What happened with Boston College? Why has this come up as an issue now?
Chris Bray (CB): It started a long time (ago). It has very old, deep roots. In 1972, a woman was taken away by the IRA and killed in Belfast. Her name was Jean McConville and the IRA thought she was an informer. And her body wasn’t found for a long time. Carrie can correct me if I’m wrong but I think her body was found in 2003? So for forty years, the police in Northern Ireland, originally the Royal Ulster Constabulary, (and that police force has changed and has now become the Police Service of Northern Ireland) didn’t investigate that murder; they didn’t bother with it. And in 2006, the Police Ombudsman for Northern Ireland said in an official report that the police had never bothered to investigate this murder. And suddenly they’re interested in investigating it. The reason they’re interested in investigating is that one of the people who is involved, a woman named Dolours Price, who said that she drove Jean McConville to her death has said, in a couple of different places, that Gerry Adams, the Sinn Fein leader, ordered the death of Jean McConville because the IRA believed she was an informer. So suddenly, Gerry Adams, who is becoming more politically powerful, who’s been elected to office in the Republic of Ireland, suddenly there is a forty year old murder that no one ever paid any attention to that can be used to politically damage an enemy of the British state; a long time enemy of the British state.
JS: And they believe there is something in the Boston College archives that will be worthwhile in their investigation? Is that what they’re going after?
CB: That’s what they’re going after and they’re probably correct. The judge, federal Judge William Young in Boston, has reviewed now interviews with a couple of dozen former members of the IRA; has done an in camera review of those materials and he has said that he’s found seven different interviewees, in addition to Dolours Price and a guy named Brendan Hughes who were handle with separate subpoenas, who do talk about the McConville murder. So there probably is material in the archive that does speak to that forty years old murder.
JS: They got the Department of Justice in the United States to issue a subpoena to Boston College to cough up this material. How did that come to be? How did they get a subpoena through the United States?
CB: That’s one of the most interesting and one of the most disturbing parts. You know, a few days ago the hacker group, Anonymous, recorded a conversation between Scotland Yard and the FBI and it really was just a great reminder that British officials and law enforcement officials in the United States work very, very closely together. One of the ways they do that is there’s a Mutual Legal Assistance Treaty between the United States and the United Kingdom and that treaty says that if either one of our two countries want to get information for a criminal investigation in their country we just ask and we commit to helping one other with our investigations. Each country has what’s called a “central authority” for processing these requests so if the Police Service of Northern Ireland (the police in Belfast) wanted to get material for a criminal investigation that’s in the United States, they would ask the British government to ask the Department of Justice to subpoena the materials. And the Department of Justice has argued in court that look, this is a treaty obligation..this is foreign relations and foreign relations is invested in the Executive Branch so the courts have no authority to review it therefore, if the British request subpoenas under the Mutual Legal Assistance Treaty, the courts have no choice but to give it to them; it’s a foreign relations matter and the judiciary has no rule. So effectively what the government is saying is: the Fourth Amendment doesn’t really apply in this case. If we want a subpoena, if we want a search warrant, whatever we want, we get it and there are no restrictions, there are no requirements for us to make a case for getting it. We just get it.
JS: I want to unpack this a little bit further for my audience. Gerry Adams is a resident of the Republic of Ireland, is that correct?
CB: Carrie, do you want to talk about this?
Carrie Twomey (CT): Yes, he is. He was formerly a Member of Parliament in West Belfast for twenty-odd years but he recently moved down to Louth, which is in the Republic of Ireland. And he became the TD for Louth and he is a resident there now, yes.
JS: So is he a citizen? The relationship between Ireland and the UK, in this case…Let’s say the UK gets information and issues an indictment against Gerry Adams, which seems to be the endgame here, how is the relation between Ireland and the UK? Is there a reciprocal relationship where he would have to be tried, extradited and tried?
CT: He would have to be extradited and traditionally the South, or the Republic of Ireland, doesn’t always cooperate with extraditing IRA figures to the North, this is why many people go what they call “on-the-run” to the South. So it’s a tricky situation and Gerry Adams is a TD, he’s a member of the Irish Parliament now; politically that would upset a lot of peoples’ apple carts. The relationship between Ireland and the UK? I don’t know how it would play. They recently, the UK government, sought to extradite Gerry Adams’ brother, who is facing child molestation charges, and that’s recently been successful but that’s a different kind of criminal area although there are political overtones to it because of the whole case, but we probably don’t want to get into that now because it’s another one of those complicated un-ravelings to do. In saying that, there is sort of an indication that it’s possible. The person that the subpoena was seeking the information directly in relation to, Dolours, is also a resident in the South; she lives in Dublin. They would have to start extradition proceedings against her if they’re going to bring these criminal charges that they’re investigating in the North. As far as we know, they have not started extradition proceedings against Dolours. So we don’t know how it would play with Adams on that.
CB: Can I jump in here for a moment?
JS: Yes. Go ahead. And then I have a follow-up.
CB: You talked about the endgame apparently being to prosecute Gerry Adams and I just want to talk about that a bit because it’s not at all clear that that’s the endgame. One of the problems is these are un-sworn statements that no one will corroborate. One of the sets of interviews that the PSNI will get from Boston College, that they’ve already gotten from Boston College, is a set of interviews with a guy named Brendan Hughes…
JS: Chris, can I stop you for a second. Say again, what is the PSNA?
CB and CT: The PSNI.
JS: The PSNI. Excuse me. The PSNI is exactly…?
CB: They’re the police in Northern Ireland.
JS: Okay. Great. I just want to make sure that we know what that is.
CB: They’re pursuing a bunch of information that they probably won’t be able to use in a criminal court without corroboration and no one’s going to corroborate it. No former member of the IRA is going to say to the police in Northern Ireland: “Oh yeah, yeah, I did say that. It’s all true. Gerry Adams told me to murder Jean McConville”. No one’s going to talk to them so they’re pursuing, in supposedly what is in a criminal investigation, information that will have no use to them in a criminal court. So there’s a lot of speculation about what the endgame is. And my bet, and there are people who will disagree about this, but my bet is that the point of all of this is for the British state to get information that they can use against Gerry Adams in the newspapers. I think it’s purely a political witch hunt.
CT: I would agree with Chris on that but I would disagree on one level which is: the Brits have all this information specifically in regards to the McConville case. This has been thrashed out in the British and Irish press for years, basically since Ed Moloney’s book, The Secret History of the IRA, which I believe was published in 2001, that was really where alot of the material or the information regarding the McConville case was made public…and the press leading up to the publication of the book. I believe it was serialised in The Sunday Times at the time of its release; a lot of [the serialisation] focused on the McConville case. This is one reason why the presentation to the Department of Justice of this case as a purely criminal matter is astounding because this is one of the most politically notorious cases of The Troubles, simply because of the media attention and the connection to Gerry Adams at its focus.
Now, I think getting him in the dock, getting him in court, is where the worm turns on this and makes it different from all the media stuff that has happened before in relation to this; that’s been stuff published in books, it’s like Chris says with regards to the IRA archive, it’s uncorroborated evidence, it’s “he said”/“she said”, there’s nothing that actually proves it. But when you get that material in court as evidence and Adams is being charged, that presents a whole different level to the media scrutiny. So I would agree with Chris that this is something that’s going to damage him in the media. They’re not going to win a criminal prosecution against Gerry Adams on this simply because there’s not enough evidence apart from someone saying, like Dolours saying, he ordered this and maybe another person saying that in a different context but there’s not, I don’t think that the evidence exists to actually tie him to successfully criminally prosecute him. But putting that in court and going through that trial will add a sharper edge to the media evisceration of him.
JS: Why was Jean McConville murdered?
CT: She lived in an area where the IRA openly operated, it was a place called Divis Flats. And she was a widowed mother of ten. Her family, like many families at that time, had originally come from the northern part of the city of Belfast and the Loyalists literally set fire to that part of the city and burned thousands of people out of their homes. At that time, it was the largest internal movement of refugees in Europe because of the amount of people that were burned out of their homes and had to be re-settled. Her family was one of those families and they were re-settled in West Belfast; the west of the city…[is a] very Catholic area. North Belfast is part of the city that has patches of Protestants and patches of Catholics and it’s a very tough part of the city to live in, too, because there’s constant attacks between the communities…a very dangerous part of the city. West Belfast, for Catholics, would be safer because it’s not patchy; it’s all Catholic. East Belfast would be safer for Protestants because it’s all Protestants. Belfast is a very segregated city, both economically and religiously, and this is part of why The Troubles continue to go and there literally are what they call Peace Walls between these areas to keep these people from attacking each other.
So her family ended up in West Belfast. The husband had recently died; she had ten children. Somehow, the British decided that she was a good person to let them know what the IRA were up to. She was in the house all day, she had a bunch of kids running around and she became an informer for the British. Apparently she had some sort of device to tap out code or something. I’m not totally clear on how it worked but it let the British know the IRA were in the area. She got caught. She got caught and she was beaten by the IRA and she was told “Stop this. You keep this going, you know what happens to informers”. But because she was a mother she was given the warning and told to stop.
Well, she kept on. And the British, whoever was handling her on the British [side], did not think this was a bad thing to be doing and I think that’s completely unethical and they continued to use her as an informer and this came back to the IRA. Gerry Adams, who was the leader in that area at that time, made the decision that she should be “disappeared” rather than how informers are normally treated, [which is] left as a message: this is what happens to you when you inform. So she was taken away and effectively “disappeared”. As Chris said, her body was not found until the early 2000’s.
The police treated her case as a missing persons case for up to thirty years. They did not even consider that she had been murdered. She was not the only person to be “disappeared” by the IRA under Gerry Adams; and it’s a very dark period in that history, which is definitely worth examining, but I just don’t think that the archives is meant be criminal evidence.
JS: Which brings me to the next question: what you just laid out, Carrie, on the other side of it is, is that: a mother of ten was kidnapped and murdered. What is the argument against, specifically the Boston College archives, that these should not be revealed as potential evidence?
CB: There are lots of arguments. Can I jump in here?
JS: Please do.
CB: I think one of the arguments that has to be brought up is that thirty-two hundred people were killed in The Troubles and the police haven’t bothered to investigate a lot of those killings and still have not bothered. You can read every night in the Irish press people who were killed in The Troubles, whose families are pushing for murder investigations and the police are ignoring them. They’ve chosen to investigate this single murder that they’re very interested in, suddenly, after they’ve ignored it for forty years, because Gerry Adams is involved; because there’s a political target, because there is a politician they can damage. So one of the arguments against it is that it’s not a murder investigation. If you concede that it’s a murder investigation then it becomes a very discussion. It’s not that. Thirty-two hundred people were murdered. They’re interested in one. There interested in a single murder and they’re interested in that murder because a politician is alleged to have ordered it. So it’s not a murder investigation it’s a political investigation. And once you frame it that way, the fact that they’re using an academic archive to conduct a political investigation rather than a murder investigation in a conventional sense, I think becomes a very different discussion.
CT: I would agree with what Chris said and I would follow further in that historians are not police. If you’re using the phrase “evidence-gatherers” in an historical aspects, they’re not gathering criminal evidence, they’re not out there to catch the bad guys and bring them to justice in a criminal sense. This work was never meant to be a thorough investigation of a criminal activity. This is not confessions of people to crimes. This is an historical examination of the past and as such, it shouldn’t be used by police who failed do their job as a way to cover up their failings.
As well, Chris makes a good point: there are a lot of victims of The Troubles who have stories just as horrific as The McConville’s, in some cases more, in some cases less. There’s a lot of suffering that is left and part of the problem that the peace process in Northern Ireland has at the minute, in terms of where it’s at in the stages of post-conflict, which is dealing with the past. And a lot of people, there are some that want prosecutions, there are some that want truth. They want either to be validated with what they think happened or they want to know exactly what did happen to their loved ones. And at this point that is much more valuable than any potential prosecutions, especially because, as the Chief Constable at the time of the release of the report into the McConville investigation said, the odds of getting successful prosecutions in these cold cases are extremely rare.
CB: I need to say one more thing which is that when you talk about “the police” in Northern Ireland it’s critical that we know what we are talking about. It’s the same problem of framing, of people saying “well, this is a murder investigation! You don’t want to impede a murder investigation!”. When you say “the police” I think people have a particular image in mind and it has to be said that for a long time Northern Ireland was policed by the Royal Ulster Constabulary in a divided community; split between Catholics and Protestants, that society was policed by a Protestant police force, the Royal Ulster Constabulary. With the Good Friday Agreement, The Royal Ulster Constabulary was turned into the Police Service of Northern Ireland and the Police Service of Northern Ireland was supposed to integrate, was supposed to bring Catholics into the police force, I think the quota was supposed to be thirty percent Catholic. The organization within the Police Service of Northern Ireland that’s conducting these investigations into the past is called The Historical Enquiries Team. And The Historical Enquiries Team is made up of old RUC. It’s made up of old Protestant police officers from the old police force. They went back, the PSNI went back and to form the Historical Enquiries Team hired former RUC detectives, retired RUC detectives. So there is a group of old-line Protestant police in the Police Service of Northern Ireland who are now investigating their old enemy, Gerry Adams.
JS: What is the precedent in the United States for using university archives, Oral Histories, like the one at Boston College, for subpoenaing them and using them in an investigation like this?
CB: That’s a very important question and the answer to that question also really reveals, I think, how reckless Boston College has been and how irresponsible they’ve been. It happens from time to time. Government officials subpoena archives or threaten to subpoena archives and very often universities and academic researchers have said have just said “no”, they’ve refused to comply with subpoenas.
The FBI threatened to subpoena The Kinsey Institute at Indiana University. The Kinsey Institute does research into sexual behaviour and the FBI said we think we can prosecute some sex crimes here; we’re going to subpoena your archives. And Indiana University said you can subpoena whatever you want, we’ll all to to gaol, you’ll never get anything from us and the FBI, facing the possibility of a conflict with the university that would require them to put lots of people in jail for contempt of court for refusing to answer questions before a Grand Jury or in some other way, they just backed down. They realised that it was politically untenable.
There was a researcher Rik Scare, he spells his first name R-I-K, Scare, who’s now a professor at Skidmore (College) who does research into environmental extremists groups, environmental activists like The Animal Liberation Front and Earth First. And he interviewed some people as research subjects who were probably involved in an attack on an animal research lab. He was subpoenaed to appear before a federal Grand Jury and to tell the federal Grand Jury who he had interviewed and what they told he about that attack on that lab. He absolutely refused to answer any of their questions and a federal judge ordered him gaoled for contempt; released him after six months, finally. He spent six months in gaol. Because he simply refused to talk and the Judge realised that no matter how long he sat in gaol he would never talk.
There was a researcher, I forget his name, I’m sorry that I’m blanking on it, but there was a researcher who did, pre-Stonewall research into sexual behaviour among gay men who didn’t know each other, sort of “stranger” contacts and bath house sex among gay men and he was threatened with subpoenas and he did the same thing. He said under no circumstances will I ever give you any of this information. And so the subpoenas, I don’t remember if they never arrived or if they were withdrawn. So government from time to time, tries to use archives for police investigations and universities and researchers have said “no” alot and it’s worked.
But Boston College clearly never thought to say “no” and never thought to resist, or complain or argue back. They just rolled over and made a sort of very light resistance in court, and then didn’t file a legal appeal, didn’t try to politicise the case, didn’t think that they won’t comply with the subpoena. They just gave up.
CT: We would be in a far different position had Boston College decided that they were going to live up to their contractual and moral obligations and resist the subpoena. They keep saying that all of this was only guaranteed to the extent of American law. Well, that’s basic for anything: to the extent of law. But you resist to push out the extent of law and they didn’t resist at all. And they have resources, both financial, political, their connections. Had they, as an institution, decided to resist this subpoena, we would be in a far different position, I believe, than where we are now. I think that we could have successfully beaten this at the first hurdle; if not the first hurdle, we would be in a better position in the appeals process, with all of their weight.
JS: Carrie, lay out where are are with Boston College right now. Just bullet-point it for us. What has happened? They got the subpoena from the US Department of Justice and they decided…?
CT: When the subpoena landed they were not going to even fight it until they were shamed into it, publicly. Ed Moloney got The New York Times interested in this story and all this media pressure came onto them saying: “Well, what are you going to do?” and their first answer was “Well, we’re considering our options”. And it took a while until they sort of decided okay, they have to fight it. They hired a lawyer, Jeffrey Swope, who has been successful in fighting subpoenas before, Chris will know the exact name of the case, I think it’s Cusumano vs. Microsoft, is that what it was? (CB interjects: It was a civil suit, yeah.) But he didn’t have very much background in the Irish political history aspect of it, which is key to fighting this case. And he filed his Motion to Quash but it could have been more robust, it could have gone in different directions.
For whatever reason the institution did not rely on speaking to Ed Moloney or my husband, who was the lead researcher on the project, to get help on fighting it. They made the decision, I think, they were going to scapegoat Ed and my husband rather than fight this properly, and they were going to protect the institution and their funding rather than protect the research. Chris can maybe handle some of the bullet-points a little better about the court proceedings that followed.
CB: First, I want to say something that’s not directly about the court proceedings which is that in the last few months Irish-American groups in the United States have been politically attacking the subpoenas. They’ve been writing to members of Congress, they’ve been trying to meet with members of Congress, they’ve been writing to the State Department, they’ve been talking about the way that these subpoenas are part of a political investigation rather than a conventional murder investigation and they’ve been trying to politicise a political case. They’ve been trying to argue politically against the subpoenas and get them withdrawn. They’ve written to Eric Holder, they’ve written to Hillary Clinton.
So outsiders, people who are not at Boston College, people who are not directly involved in the case, are fighting the subpoenas politically. John Kerry, the Senator from Massachusetts, has said that he’ll try to get the subpoenas withdrawn and he has spoken to Eric Holder and he has written to Hillary Clinton because Irish-American groups asked him to. So someone bothered to say: “we should fight these subpoenas politically” and it’s working! There are people who are willing to discuss the subpoenas. There are political officials who are willing to discuss the subpoenas as part of a political effort, a political investigation.
Boston College never did any of that; they had this sort of had this sort of very polite court case where they filed some very polite briefs that said “Hey, what about academic freedom?”. And the court said: “Never mind that.” And they sort of said: “Okay, here’s all the interviews”. You know? There are people who are fighting. And you don’t have to just fight in court. The Irish-American groups have shown very clearly that you can fight these political subpoenas in the political arena and Boston College never bothered to do that.
CT: These Irish-American groups have been fantastic too, I have to say. The Irish-American Unity Conference, The Brehon Society, The Ancient Order of Hibernians: they have really mobilised their members. This case has actually re-energised the Irish-American lobby in a way that they haven’t been for quite a few years; they have really come to the fore. I’ve meet with different Representatives’ staff in both DC and Boston. I met with Senator Kerry’s staff and spoke with him on a conference call (and) this was all due to the work the Irish-American groups have been doing in their lobbying and they’re reaching out to various elected officials. And this is an open door they’re pushing because in terms of foreign policy, this is not in America’s interest, both directly related to America’s foreign policy towards Ireland and larger pictures.
But Chris is totally right: had Boston College put their political connections, of which there have many that are influential and vast, and put their political resources to fighting this, and then also worked in conjunction with the Irish-American groups, you know…[it would be a] vastly different landscape from what we’re looking at now.
Right now with the US Attorney making the argument that there’s no such thing as academic embargoes and that foreign governments can completely violate the Fourth Amendment and raid all American archives with wild abandon if they’re investigating local crimes or they need assistance on criminal investigations. Alright…ten years from now…five years from now we’ve got a stable government in Iraq. There’s Oral Histories being collected right now across the US from Iraq war veterans, from veterans of Afghanistan. Are they going to start investigating their war crimes and say well, we want this information? This could potentially put American soldiers in the dock. This could people in the dock right now if Italy says “Well, we want to investigate what we consider a local crime. Let’s have access to The Bush and Clinton Libraries. Their embargoes are worthless. It’s not classified material being held in there”. Is the US going to have to madly scramble to classify all sorts of material at academic universities because the embargoes are worthless like the US Attorney says? Or will we be able to fight to protect academic embargoes and protect politically sensitive documents that are held all across the US in various university libraries, from conflict zones that the US has a past, present and future interest in? I mean, there is this arguments that’s being put forth that academic archives, academic material, (scoffs) is: that’s… the historians are doing the work of the police…we have to turn this over; it can cause a lot of future problems opening that door that I don’t think is in America’s interest to open.
JS: That was Carrie McIntyre and Chris Bray discussing the Department of Justice’s subpoena of the Boston College archives that contain The Belfast Project. I’ll be back right after this:
(Station Identification Break)
JS: There’s been more news since I did that interview which was about three weeks ago. Since that time the ACLU has joined in this fight, submitting a Friend of the Court brief and Carrie McIntyre is here to discuss that. Carrie, how are you?
CT: Hi John. How are you?
JS: I am well and just in listening to that interview again I’m even more intrigued. As you know we did that about three weeks ago. What has happened since on this case, in particular the ACLU joining in a Friend of the Court brief? What did they do, the ACLU?
CT: First, let me also introduce my husband, Anthony, who’s on the line with us as well.
Anthony McIntyre (AM): Hello, John.
JS: Hello, Anthony, I’m glad you’re here. I wasn’t sure if you were going to join in or not. But Anthony McIntyre as well, who was one of the historians involved with this, The Belfast Project.
CT: And then onto the question of the ACLU: as you’ve noted, they filed an amicus brief, a Friend of the Court brief, in support of our position and it is fantastic! It was interesting re-listening to that interview we did where I was pointing out how Boston College could have been fighting this case had they marshaled all their resources. Well, the ACLU has now come in and is doing the job Boston College should have been doing from the beginning. I mean they knocked it out of the park! It’s a muscular, confident brief that hits all the right points and very clearly lays out the need for the protection of the First Amendment, for academic freedom and, most importantly to me personally, the protection of our family’s lives.
JS: I want to touch on that, it’s a sporty issue, but you just said “our family’s lives” or “my family’s lives”. What does that mean? Who’s in danger here?
CT: Specifically my husband, Anthony. When this historical material, if we lose this case and it becomes criminal evidence, he’s already being painted as an informer in certain circles which, as I explained in the previous interview, it’s a death sentence. And this is very frightening and a very, very dangerous time for us. It puts our whole family at risk (as) people don’t always get the right person when they make attacks and it also puts those that participated in these interviews at risk as well. Anthony might better explain…
JS: What was the original agreement when you set off to do these interviews?
AM: The initial agreement was drawn up by Boston College, a Donor Agreement, which stated unequivocally that the people who were doing the interviews would have ultimate power of release and that would come only after their death or if they consented to releasing the interviews prior to their death. And that was the only condition on which it took place and the interviewees would not have entered into the arrangement unless that guarantee was in place.
JS: How has the Department of Justice responded to these Motions to Quash? Are they still fighting?
AM: Well, they have fought and they have resisted any attempt by Boston College or ourselves to have the Motion quashed. They have opposed our request to Intervene. They didn’t have to fight too hard against Boston College as in their Application to Quash Boston College were effectively were very weak and, as Chris Bray pointed out, were playing with footsie with the court, being ever so polite, “Whatever you say, old chap, and we will conform and comply”. This has facilitated the Justice Department in its endeavours to secure the interviews. It has met no real fight up until we until we came into the case ourselves, or at least tried to come into the case. We had and still have an excellent legal team with Eamonn Dornan and James Cotter and it’s through their efforts that the interviews are still on the right side of The Atlantic and not in the hands of British police.
CT: The Department of Justice won in the lower court. We have a hearing set in April, on April 4; it’s our appeal against the lower court’s ruling against us. And Boston College, I think due to the pressure that has been put on them for their reaction to this, have decided to appeal some of the archive but not all of it being handed over and their hearing is set to be heard in June.
JS: The US District Court refused to view Anthony and your co-researcher, Mr. Moloney, to join the case. What was the reason given by the court?
AM: The court has said we don’t have standing to intervene that Boston College adequately represents the case and the interests we may say are at stake. And Boston College has demonstrated beyond all doubt that the only interests Boston College represents are their own interest. They’re certainly not representing the interests of research. They’re certainly not representing the interests of source protection. They have effectively abandoned their researchers and the research participants and the first obligation of any researcher is to ensure that the information revealed in confidence by research participants does not come back to cause them any harm.
Boston College knew from the get-go exactly what this interview process was about and they decided that they would capitulate, basically just roll over and lie down and give up. In my view, this is a disreputable approach and it has serious ramifications for intellectual freedom and academic research worldwide if the British succeed in having the Justice Department act as an arm of the British state and secure interviews which were given to an American university under guarantees of confidence from that very same university.
JS: Carrie and Anthony, you’re both calling from Dublin but Carrie, you were in the United States recently. Can you tell us who you met with and what progress was made?
CT: Well, since my trip to the US where I had met with the offices of Senator Kerry, Senator Lugar out of Indiana and Representative King out of New York, and I also met with the Irish-American groups: The Irish-American Unity Conference, The Brehon Society and The Ancient Order of Hibernians. The lobbying has intensified and we’ve managed to secure letters from other members of Congress, including Senators Menendez, Crowley, Ackerman and …the other name just went out of my head…but there is a lot of political pressure that is coming to bear. People are sending letters to Secretary of State Hillary Clinton, which we welcome, asking her to intervene and get the subpoena withdrawn. I’ll be returning to The States to continue with this lobbying and meeting with other representatives of Congress during St. Patrick’s Week.
Politically this is where this is going to be won. And this is not a move that, as I explained in the earlier interview, it’s not in America’s interest. It’s certainly not in the interest of peace in Northern Ireland because if this goes to criminal evidence and the disastrous response that we are anticipating happens, it can destabilise the whole process and throw this place into disarray which would not be good and not in anybody’s interest.
JS: One of the issues in the ACLU brief is just what the Mutual Legal Assistance Treaty between the US and the UK actually covers. They’re saying, and please correct me if I’m wrong, or this should be litigated, whether or not it covers confidential information for prosecutions abroad. What is the case the ACLU is making?
CT: In this particular case the Department of Justice is proceeding as if this is a bonafide criminal investigation. And the Mutual Legal Assistance Treaty as I understand it, which I have a very layman’s understanding of the legal issues here, is meant to help with issues of contemporary terrorism, money-laundering, drug-trafficking, gun-running, etc. It’s not meant to cover historical crimes. And at the same time that the Mutual Legal Assistance Treaty was passed there was also an extradition treaty passed which the UK was part of and they had assured, via letters from their Secretary of State at the time to our Attorney General, that they were not going to be seeking anybody for pre-1998 crimes. Pre-1998. Well, 1998 was the year that the Good Friday peace accord was signed. This particular case that the subpoena is seeking information about was a crime that occurred in 1972 and would fall under that pre-Good Friday, pre-1998 section. It’s an historical crime. It’s not a contemporary investigation, and in that sense it’s a cold case crime. That is not what the sense of the Senate, when you combine the MLAT and the extradition treaty together, it’s not the sort of thing that the Mutual Legal Assistance Treaty was meant to facilitate.
AM: And on the actual killing, John, the offence that they are requesting the interviews and releasing to, the British police made no attempt to investigate this killing for more than three decades. When Ed Moloney’s book came out detailing the events pertaining to the killing in 2002, the British police made no effort to contact Ed and find out any more. And now after Nuala O’Loan’s stinging report against the police in 2006 which said they had done absolutely nothing. They have found that somebody else has been in for entirely different reasons and gathered information which they think may be relevant. So as the ACLU has said, that the Constable is making up for his incompetence by trying to penalise and punish and threaten the researcher.
JS: Is it only making up for incompetence because I’m curious about this? Because if Mr. Moloney’s book came out and there was indictable information in it, is it safe to at least conjecture that this is some sort of a witch hunt on the part of the British government to get at Gerry Adams?
AM: Well, we are quite convinced that that’s the case and the ACLU have also covered that in their own brief to the court. We think that both factors have come into play. But the reason that they are able to try and make an attempt to cause problems for Mr. Adams is the fact that for so many years they did nothing anyway and their absolute incompetence has left them short. And now they see a suitable opportunity to settle old scores. And there’s a growing body of opinion who are of the view that this is precisely what it’s about. That there’s a group within the PSNI who, hiding behind the cover of investigating all leads, are now pursuing this.
And the interesting thing is that they will investigate all leads except those lead back to the state. Last week we had a case where alot of people from the Loyalist community, people who were believed to been associated with the Ulster Volunteer Force, that’s the Loyalist paramilitary group which was responsible for the bulk of the killings on the Loyalist side during the Northern conflict. They appeared in court charged with a variety of murders and they were acquitted the big question is: Why was their Special Branch handlers, the people who were handling them as agents and informers, why were they not in the dock? Nuala O’Loan, when she was Ombudswoman, found an enormous amount of information indicting these people. No possibility of them having them appear in court. And it seems that this is a very one-sided discriminatory act on behalf of the Police Service of Northern Ireland which is trying to establish that it is the “Daddy” on the block and it will investigate the activities of everybody else prior to the Good Friday Agreement but it will most certainly not investigate its own.
JS: Carrie, what are the next steps in this process? What are the dates? When are we having court hearings on this?
CT: April 4th is when the hearing on our appeal will be heard. And that’s the most immediate next step. Following that, Boston College’s appeal will be heard in June.
JS: I don’t think, and I’m saying this as an American, I do not think that most Americans understand the potential for wounds to be re-opened on this issue in Ireland. What are the implication in terms of just general Irish-British politics if, Anthony, your research comes out prior to the agreement, which was the death of the people who had participated in it. What is the potential for causing chaos in Irish politics?
AM: The worst case scenario is that we could have a collapse of the institutions that are governing the North of Ireland at the moment and that would come about because the people in the government who share power or split power with Sinn Fein, the Unionist people, would be demanding that key figures in Sinn Fein could face prosecution or should face prosecution and we can imagine, if that was to happen, the decrease, the diminishing confidence the people would have in the police force. A major report out last week police force far from settled here, there’s still a lot of problems, there’s still a lot of mistrust. The application of draconian powers against journalists and members in the Nationalist community and you could see a development of support for people who were regarded as armed Republicans as they’re called, dissidents, in the North of Ireland. You can see the diminishing of confidence for the institutions which could have, in the worst-case scenario, it would certainly polarise opinion and at the moment there is a view that the past has been used very much as a means for positioning and for settling scores in the present.
JS: Did you, Carrie or Anthony, solicit the ACLU or your legal team or did they just take this on on their own?
AM: We had no input into the ACLU decision. The ACLU behaved independently in their assessment of the situation. I think they had been watching it and they decided to come in. I know that somebody who was a member of the ACLU had watched the case and had written article about it but I certainly, nor Carrie, had any contact with the people, the ACLU. I made no direct approaches, no.
JS: I’m curious and neither of you may know the answer to this: as to whether it has been ever been litigated whether or not The Mutual Legal Assistance Treaty has any boundaries for what the UK, for what you said in the interview, Carrie, people to understand on this side of the pond, that there are many places in the world where the United States is involved, things happen, that ten years hence an Iraqi government, which is stable, may decide the death of so-and-so was a local crime. As far as you know, has the Mutual Legal Assistance Treaty ever been tested in terms of what its actual limits are?
AM: To the best of my knowledge John, no, and I have not found any case law which deals with it. I’m not a solicitor, or a barrister or a lawyer so my legal knowledge is limited. But I would draw attention to Judge Young’s comments, and I did not find Judge Young a particularly friendly judge in terms of our application or the Boston College archive. But he had noted that it was a case of first impressions and was really giving Boston College [space] to come in and appeal it and that this is why the appeal court have actually stepped in the First Circuit because they want to test the issues.
I think, as Carrie has pointed out and she’s been arguing from the start, this has serious implications for American foreign policy and many of these agreements cannot be tested by judicial review and they’re not subject to domestic law. It means that American citizens, people living in America, are not going to be protected and can be subject to an investigation by a foreign government. It enhances the risk that an innocent American citizen can face if a foreign government suddenly demands that they’re interested it cannot be reviewed by a court. One of the purposes of the courts in America is to protect its citizenry from government. And if it has to protect its citizenry from government it surely must be protecting it from foreign governments to an even greater degree.
CT: And part of the ACLU’s brief addresses this in that the application which is being sought, would mean that American citizens would not even have the ability to be shielded by American law, which is a very dangerous position to put our citizenry in.
JS: Carrie, there’s very limited time left…but I want to ask you this: have you had any help? Because, as you guys unpack this for us, it occurs to me that there would be an interesting battle between the Department of Justice in the United States and United States State Department. It seems like it would be in the interest of the State Department, to essentially be on your side. Have you had any help from the US State Department?
CT: Well, because we are suing the government right now, the State Department is limited into what they can do to help us directly. However, I know they are taking a very keen interest in this case precisely because of the implications it has for America and its foreign policy. I would encourage people to contact their local representatives and ask them to lobby Secretary of State Clinton on this issue, to keep them involved and keep their interest because this is definitely in their interest to roll this back.
JS: Anthony and Carrie, I can’t thank you enough. This is a really important and compelling issue and I’ll certainly be following it. We will be following it. Thank you very much for updating us on this stuff.
CT: Thank you, John, for your coverage of this. We really, really appreciate that.
AM: Much appreciated, John. Thank you and Good Luck!
JS: Yeah, and Good Luck to both of you, as well.
AM: Thank you.
JS: You can follow-up on this at: bostoncollegesubpoena.wordpress.com. (Repeats URL). That has all the latest information on what is happening with this case, which I think is a very important case not least of which is the well-being of the people involved but it also goes to academic freedom and what historians actually are tasked with doing. Are they cops or are they historians? It’s important stuff, please follow-up with it. (Repeats URL)
ACLU joins fight to prevent disclosure of BC Belfast Project documents on conflict in Northern Ireland Academic freedom at stake. ACLUm
Wednesday, February 29, 2012
BOSTON — The American Civil Liberties Union of Massachusetts has submitted a friend of the court brief in support of two Boston College researchers who are challenging a court order that the college turn over confidential material obtained as part of the researchers’ work for BC’s Belfast Project oral history of the “Troubles” in Northern Ireland in the 1960s through 1990s. The British government is demanding the documents through the offices of the US government. The two researchers, Anthony McIntyre and Ed Moloney, have asked the US Court of Appeals for the First Circuit to block the release. Their appeal will be heard in Boston on April 4.
The US District Court refused to permit the two researchers to join the case, saying that BC officials would adequately defend their rights. The college subsequently failed to appeal the initial ruling ordering disclosure, although it recently filed a notice of a partial appeal involving another subpoena for records that the US District Court also ordered to be handed over to the government.
At issue is whether researchers have a right to defend in court pledges of confidentiality made to their sources on matters of legitimate public concern, particularly where, as here, the safety of the researchers and those they interviewed is at risk from such disclosure.
“It is essential that those who assume confidentiality obligations in exchange for obtaining information have the right to oppose attempts by public or private parties to compel disclosure,” said ACLU of Massachusetts cooperating attorney Jonathan Albano, deputy managing partner for the Boston office of Bingham McCutchen LLP. “Prohibiting academic researchers from defending their pledges of confidentiality–even when their own personal safety is at risk–would be an alarming and unprecedented infringement on First Amendment interests.”
On December 27, 2011, US District Court Judge William G. Young ordered Boston College to turn over all the interviews requested by the British government in the first subpoena relating to interviews with Dolours Price. This and an earlier order denying Moloney and McIntyre the right to intervene are the subject of the appeal and the ACLU of Massachusetts friend of the court brief. The Court of Appeals granted a stay of the lower court’s order.
A related issue raised in the ACLU brief is whether the Mutual Legal Assistance Treaty between the US and the United Kingdom should be allowed to authorize a foreign power, armed with an unreviewable stamp of approval from the Executive Branch, to compel a US citizen to produce confidential information for prosecutions abroad.
“It is alarming that the trial court opinion suggests that the Constitution surrenders US citizens to foreign powers with fewer safeguards than are afforded to citizens subpoenaed by domestic law enforcement agencies,” said Carol Rose, executive director of the ACLU of Massachusetts. “If the government has its way, it would straightjacket judicial review of investigations and prosecutions by any foreign country party to this treaty, including Russia and China.”
The brief also takes issue with the government’s argument that the personal safety of the researchers is their own fault, since they publicized the issuance of the subpoenas.
“This is reminiscent of an argument that might have been made by Joseph K.’s accusers in Kafka’s The Trial,” states the ACLU brief. “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.”
“If this ruling stands, it will have a chilling effect on academic research for years to come,” said Rose.
In addition to Albano, attorneys in the case are Robert McDonell, also of Bingham McCutchen, Peter Krupp of Lurie & Krupp, LLP, and ACLU of Massachusetts staff attorney Sarah Wunsch.
Court ruling could “have a chilling effect on academic research for years to come”
ACLUm Online Coordinator Danielle Riendeau ACLUm
Picture this: you are a survivor of the strife that scarred Northern Ireland from the ’60s well into the ’90s. You agree to give interviews–extensive oral histories, really–to academics “across the pond” here in Boston, under assurances of confidentiality.
Imagine that you are one of the researchers conducting the project, and promising your subjects confidentiality in exchange for their participation. The interviews cover secretive, nasty stuff–grisly details about civil war and violence, for which there could still be retaliation–and it’s absolutely necessary to protect your sources in order to get good, substantive information.
Now imagine that the institution under whose auspices this project was conducted is ordered to turn over confidential information from and about the subjects. Not good.
This is the crux of the latest case we are involved in, wherein Boston College has been ordered by the US government to hand over material collected by researchers Anthony McIntyre and Ed Moloney for an oral history they conducted called the Belfast Project, which involved interviews with people personally engaged in violent conflict.
Disclosing the source materials could have disastrous results for the individuals involved, not to mention the principles of free speech and academic freedom. If we make it harder to conduct research like this by making sources afraid to talk, it’s a loss to history and people’s ability to understand what happened. The memories of those involved will not be preserved and will simply disappear when they die.
We’ve just filed a “friend of the court” brief supporting the rights of these two researchers to keep the information they collected confidential. You can read all of the details here.
Our executive director, Carol Rose, said it best when she said the following this morning: “If this ruling stands, it will have a chilling effect on academic research for years to come.”
Could Boston Tapes case put peace process at risk?
By Eamonn McCann Belfast Telegraph
Friday, 2 March 2012
Failings in the police investigation of the murder of Jean McConville prompted the efforts currently under way in the US courts to obtain tapes of interviews with former paramilitaries.
The suggestion is made in a submission this week by the American Civil Liberties Union to the Massachusetts District Court hearing an appeal against a ruling that some of the tapes, currently held by Boston College, should be handed over to the British authorities.
The Massachusetts affiliate of the civil liberties union (ACLUM) also alleges that part of the motivation for the action has been to discredit the Sinn Fein leader, Gerry Adams.
It is believed that the tapes contain allegations from former members of the Provisional IRA that Adams organised the kidnap and killing of the west Belfast housewife in December 1972.
“The investigation into the abduction and death of Jean Mc Conville by the PSNI and its predecessor the RUC was, simply, a non-investigation – at least until the matter became grist for political opponents of Gerry Adams,” says the ACLUM.
The civil liberties group intervened to support journalist Ed Maloney and former IRA prisoner Anthony McIntyre – who acted as researcher on Boston College’s Belfast Project – in appealing against the refusal of a lower court to allow their own legal team to argue their case rather than depend on lawyers for the college.
The project involved up to 30 interviews with former paramilitary activists conducted on the basis of assurances from Maloney and McIntyre that none of the recorded material would be made public during the lifetimes of the interviewees.
The brief submitted by the ACLUM declares that the ability of journalists or academics to protect sources makes it essential “that those who assume confidentiality obligations in exchange for obtaining such information have the right to be heard in opposition to attempts by public or private parties to compel disclosure”.
The brief also argues that the lives of participants in the project would be at risk if material is provided to the police which could form the basis of charges against members or former members of the IRA.
The killing of Jean McConville is at the heart of the case. A widow and mother of 10, aged 37, she was abducted by members of the IRA from her Divis flat and killed as an informer.
Her body wasn’t found until 2003, when a member of the public stumbled on the remains while walking on Shelling Hill beach in Co Louth.
The investigation of the killing by the RUC at the time of the abduction and by the PSNI following the discovery of the body was the subject of a damning report by the Police Ombudsman in 2006.
The ACLUM tells the Massachusetts court that this investigation had revealed that: “The Northern Ireland police did not even investigate the death … for more than two decades. Now, in the name of solving a 40-year-old murder, the [US] Government risks subjecting multiple participants in the Belfast Project to the ultimate retaliation …
“Although the police received multiple reports about the abduction, the Police Ombudsman’s investigators were ‘unable to find any trace of any investigation into Mrs McConville’s abduction during the 1970s and 1980s’. No investigation at all took place until 1995 … The police who worked the McConville’s neighbourhood in 1972 were questioned and ‘none could recall any investigation being carried out’.
“One detective conceded ‘that because of the situation … at the time, enquiries in the area were restricted to the most serious cases’, of which the McConville abduction apparently was not one.
“Even three decades later, police co-operation with the Ombudsman’s investigation was less than complete.”
The ACLUM’s key suggestion is that the action to obtain the tapes was launched only after it was suggested that they might contain information linking Adams to the kidnap and killing.
In balancing Maloney’s and McIntyre’s right to keep the information confidential against the public interest in disclosure, the ACLUM argues, the court should examine “whether the information was sought as part of a legitimate murder investigation, or an attempt to use the investigation to embarrass Adams”.
If the Massachusetts court decides to conduct an investigation along these lines, the case may be taken into territory touching on the peace process.