Audio of Oral Arguments, First Circuit Court of Appeals

Case No. 11-2511 In Re: Request from United Kingdom
Case No. 12-1159 Ed Moloney, et al. v Eric H. Holder, Jr., Attorney General, et al.
Panel: Judges Lynch, Torruella, and Boudin

No. 11-2511

Petitioner – Appellee,
Movants – Appellant.

No. 12-1159
Plaintiffs – Appellants,
ERIC H. HOLDER, Attorney General; JOHN T. MCNEIL, Commissioner
Defendants – Appellees

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Oral Arguments
First Circuit Court of Appeals
Boston MA 4 April 2012

Transcript: Eamonn Dornan’s Oral Argument

In the matter of the subpoenas served on Boston College for material from The Belfast Project.

Eamonn Dornan, attorney for the appellants Ed Moloney and Dr. Anthony McIntyre, delivers his oral argument to the court.

Legend: Eamonn Dornan (ED), the Court’s Chief Justice, the Honourable Judge Sandra L. Lynch and panel judge, the Honourable Juan Torruella.

Eamonn Dornan (ED): (audio begins during ED’s introduction)…along with James J. Cotter the III, the law offices of James J. Cotter the III for the appellants, Ed Moloney and Anthony McIntyre.

Chief Justice, if I can reserve two minutes rebuttal time?

Judge Lynch: Yes, you may.

ED: I’m obliged to the court.

At the head of this case is the failure of the District Court properly to appreciate the risks of harm at issue: mainly the likelihood of harm to the appellants and the disregard of the real risk of physical harm to Anthony McIntyre and to his American family as well as to the participants in the Belfast Oral History Project.

The risk of harm to the appellants’ first amendment rights in light of their exceptional connection to the subject matter: the risk, of course, of the chilling effect on oral historians who have or are engaged in similar projects.

And finally, the privacy risks to citizens of the United States: if foreign governments in pursuit of sensitive documents are granted ease to circumvent not only the international related constraints but the domestic laws of the United States which would otherwise fodder local law enforcement agencies.

With regard to the grave risk of physical harm to the appellants: in his affidavit in support of his complaint, Anthony McIntyre sets out that if The Belfast Project interviews are disclosed and criminal prosecutions are to follow, the threat to himself, his US-citizen wife and children would be enhanced and this harm can include serious injury or even death.

Now this comes from an individual with a doctorate in Irish Republican History. And we say that the District Court should have given much more weight to his claims and should have found that Mr. McIntyre would know the nature of the threat, from whence the threat came and how that threat would be executed.

Judge Torruella: How is this any different than in any criminal case in which a witness is subpoenaed and obviously the defendant’s concerned with his testimony and all the kinds of horrible that can happen as a result thereof?

ED: Firstly, in this case the information was premised on the strictest conditions of confidentiality….(Judge Torruella interrupts)

Judge Torruella: Now that leads me to the second question: How is that any different than a reporter who seeks information and then the government seeks to subpoena the source of that information?

ED: We say that the protection should be similar with regard to academics and journalists but that this isn’t strictly a criminal matter because it comes under 18 USC…

Judge Torruella: I know but the problem that I see with that argument is that there is no right of the reporter to refuse to turn over the information.

ED: Yes, granted. But there is a balancing of the interests between the free-flow of information and the public interest in providing information to criminal law enforcement agencies.

And for a number of reasons we say that the balance was not properly struck in this case and in particular because the government failed to exhaust its domestic remedies, failed to obtain the information from less sensitive sources, failed even, to mount a criminal prosection.

And because of that the Attorney General has failed under the Mutual Legal Assistance Treaty to determine that no prosecutions are in being, no prosecutions are likely to come into being and he did not bring that to the attention of the District Court.

So the District Court, in its discretion in weighing up the balance between the free-flow of information and the public’s need for criminal prosecution, did not have the information that there were less sensitive sources from which this information could be obtained.

And we say that that’s the most egregious part of this story in that the murder had taken place in the Republic of Ireland, in another jurisdiction.

So the law enforcement agency doesn’t even have subject matter jurisdiction here.

It certainly doesn’t have personal jurisdiction over the source of the claims, over Dolours Price, and for it to mount a prosecution it would have to extradite an Irish National from the Irish Republic for a crime committed in the Irish Republic and that will just be fraught with dangers.

But of course, no prosecution have even been attempted.

It’s not before the Court but this is information we wished to put before the District Court: that Dolours Price, the subject of the first subpoena, was in the criminal court in 2010 after her interview, in the North of Ireland and law enforcement did not as much as lift a finger to arrest her, to question her, to find out any more information.

Nor did it go to the very source which grounded its subpoenas here; that’s The Irish News interview and The Sunday Life interviews. There was a tape from those domestic agencies, domestic journals from which it could have obtained this information.

Judge Lynch: Counsel, I understand this to be an argument under the balancing tests that there were alternative ways of getting the information.

I was a bit puzzled though by your statement that you wished to present this to the District Court. Is this not in the record?

ED: No, that particular piece of information isn’t in the record clearly because we were prevented from intervening; we could not support our complaint wth any further information.

Judge Lynch: But you did put in affidavits in support of intervention which could have included such information….

ED: It could have included that information; we wern’t aware of it at the time. My apologies to the court.

Judge Lynch: I see. Alright. Thank you.

ED: Getting back to the harm which could be caused, we say will be caused to Mr. McIntyre: the government sort of casually waves away asking that we cast a cold eye on the threat of harm because the fifth amendment doesn’t touch on Mr. McIntyre but it certainly does touch on his US-citizen family and children and another agency of the government, that is the Department of State, clearly takes this much more seriously and it has invited Mrs. McIntyre, Anthony McIntyre’s wife, in for a security assessment. And it takes a very much more serious approach to the risk of harm to US citizens.

And the threat as outlined is all too real because Mr. McIntyre has been branded as an informer, in some parts, for his role in putting into archive information from IRA operatives in breach of the IRA’s strictly and sometimes brutally enforced code of silence. And the release of this information could lead to the prosecution of former IRA members, including peace makers, in contravention of the Good Friday Agreement, in which the IRA sued for peace partly in return for the release of their prisoners and for the end to politically motivated prosecutions.

And the Good Friday Agreement, as an aside, is an American foreign policy success initiated by the Clinton Administration and nursed through by the last two Bush Administrations.

My clients say that the release of these subpoenas will have a seriously detrimental effect on that peace process.

And again, that is the Attorney General’s obligation: to go to his counterpart and to say, “Is this prosecution going to have an effect on US foreign policy interests?”. He failed to do so.

The only way we can get to that is under The Administrative Procedures Act to compel him to come back to the District Court and explain that there is no threat to US foreign policy and secondly, that the criminal prosecutions will likely ensue and we say that they won’t.

And of course, the appellants are not just concerned for their own safety but that of their confidants: because the release of the material threatens the safety of IRA combatants who’ve provided their chronicles of involvement in Europe’s longest running war under the strictest conditions of confidence and in violation of their their own oath of secrecy which, as indicated, the IRA takes extremely seriously.

And in regard to the risk of harm to their first amendment rights: the appellants, needless to say, are deeply concerned about the damage this will do to The Belfast Project and to future, similiar Oral History projects. And in that concern they’re much closer to the zone of interest than is Boston College.

Boston College has institutional concerns but the stakes for my clients are immeasurably higher.

And that’s because their promises of confidentiality to the interviewees was what made possible The Belfast Project and that confidentiality only arose as a result of my clients’ individual reputations as journalists and IRA prison-turned academic.

These terms of confidentiality are at the heart of that relationship and a court in Northern Ireland would have, and I quote: “no difficulty in holding that there would be a heavy risk of danger unto life, indeed a substantially higher risk of such danger unto life.” and that’s from the Suzanne Breen case, and that’s on the record ( below – Boston College – 5.1 page 9).

So when they, as researchers, make solemn promises of confidentiality to their confidants those sources expect them to use every resource available to them to protect that confidentiality.

Mr. Moloney is trusted because he already faced the threat of incarceration in the protection of his journalistic sources.

And Mr. McIntyre’s trusted because of the fact that he was an IRA prisoner who had served time on account of his political convictions.

Of course our interests are much greater than that of an institution.

And in failing to allow the applicants to intervene we respectfully submit that Judge Young has denied first amendment protection to those most in need of first amendment protection and that he’s has denied them a right to a fair hearing and to develop their testimony.

And we say that the intervention test, as applied by Judge Young, was not robust enough in these circumstances and that we must be allowed to intervene if we have first amendment concerns and if our interests derive from the particularity of our confidential relationships with our sources.

As regard to the chilling effects generally of first amendment rights, it’s submitted that Judge Young did not properly formulate the mechanics of the heightened balancing test in relations to USC 35.12 because he should have had regard to the Intel factors, which in many ways mirror the MLAT standards, which we posit that the Attorney General should have been looking at.

One of the Intel factors is whether the person from whom discovery is sought is a participant in the foreign proceedings. And that would allay the government’s concerns that criminal defendants could use the MLAT to suppress subpoenas.

There they couldn’t. In this case my clients aren’t participants in the foreign proceedings.

Secondly and most importantly, the nature of the foreign tribunal and the character of the proceedings underway abroad: is both an Intel factor and, in the MLAT we have in Article 1 Section 1, that “assistance shall not be available for matters in which the administrative authority anticipates that no prosecution or referral as applicable will take place” and I’ve addressed that earlier on that no prosecution is extant and no criminal prosecution is likely.

We should be permitted to bring to the court’s attention how the Attorney General failed in his obligations to review these MLAT standards, failed to bring information to the court which the District Court could exercise in its discretion in the use of its balancing test.

Another Intel factor is whether the request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country to the United States and of course the MLAT, at Article 18.1, states that “the parties shall consult if either party has rights or obligations under another bi-lateral or multilateral agreement relating to the subject matter”.

And we say that the extradition treaty, which is a companion treaty to the MLAT, contains language interposed by the United States Senate which says that that instrument shall not be used to prosecute pre-Good Friday Agreement offences.

While as that language doesn’t appear in the MLAT persay, the parties were obliged to have agreement to it under the MLAT and under the Intel factors again, the parties were obliged to have a look at the foreign policy implications.

I’m not asking the Court to make any determination on foreign policy – that’s the Attorney General’s job.

The Attorney General’s job is to go to his counterpart and find if there are foreign policy implications or to consult with the Department of State and again, we say that he’s failed to do so.

With regard to the less sensitive sources: we’ve addressed that. The Branzburg balancing test requires the court to look at less-sensitive sources information and we say that the law enforcement body has failed to exhaust its domestic remedies before coming here to effectively vandalise an oral history project which will be destroyed, there’s no question – it will be destroyed if any material is released from that archive.

The question then arises: Why should a foreign government have more freedom to access confidential, sensitive Oral Histories here in the United States than it would in the United Kingdom?

Or in other words: Why should it be that Americans seeking to protect sensitive information can assert less rights against a foreign government than can its own Nationals?

And I refer here to the Suzanne Breen case, which I mentioned earlier, that was a journalist who had taken a call from a Real IRA, an off-shoot group of the IRA, and a court in Belfast found that invoked her right to the life under Article 2 of the European Convention of Human Rights as well as Article 10 of The Freedom of Expression which grants the right to freedom of expression and specifically includes the prevention of disclosure information received in confidence.

The Real IRA made a statement that they made no apology for shooting dead two young British soldiers at Masereene barracks. But they also made no apology for shooting two pizza delivery men who were collaborating with British military personnel by servicing them.

Now, if they’ve no compunction about that, how much more danger must there be for Mr. McIntyre and Mr. Moloney for their perceived assistance in delivering IRA intelligence to British law enforcement?

And we say at that the dangers for them are considerable.

Unless the court has any further questions?

Judge Lynch: No, thank you.

Transcript: US Attorney’s Oral Argument

In the matter of the subpoenas served on Boston College for material from The Belfast Project.

Assistant US Attorney Barbara Healy-Smith (BS) presents oral argument on behalf of the defendants in the appeal brought by Ed Moloney and Dr. Anthony McIntyre concerning the subpoena to Boston College for materials stored in archive there and known as The Belfast Project.

Legend: ED: Eamonn Dornan, counsel for Mr. Moloney and Dr. McIntyre, Judge Lynch: Chief Justice, the Honourable Sandra L. Lynch, Judge Torruella: the Honourable Juan Torruella and Judge Boudin: the Honourable Michael Boudin.

Barbara Healy-Smith (BS): Good Morning.

Judge Lynch: Good Morning.

BS: May it please the court, Barbara Healy-Smith for the defendants.

The issue here is much narrower than the appellants have presented it. And it’s important at the outset to just separate the two requests the appellants made on their Motion to Intervene in the District Court in the proceeding in which Boston College sought to quash the subpoena.

But the punitive intervenors said: we agree with Boston College as we have the same argument as Boston College has presented as to the chilling effect on Oral History projects and the confidentiality of sources but we want to broaden that proceeding.

In the complaint they attached to their Rule 24 Motion, they sought to bring claims against the Attorney General that would have had the District Court enquire into the process the Attorney General followed in deciding to provide the legal assistance requested.

To weigh whether the Attorney General consulted with people he was supposed to consult with or considered, gave weight to, certain policy and political considerations.

The District Court said the MLAT expressly precludes an action to ostensibly enforce its terms; there is no private right and so you cannot bring that complaint.

And as to any legally cognisable, legally protectable interest you might have, Boston College is adequately representing that.

The question is: was that an abuse of discretion under Rule 24? And we…

(Judge Lynch interrupts)

Judge Lynch: Ms Smith, it would help me if you would actually frame your argument not in terms of the intervention but in terms of the original action that these individuals brought because it does not necessarily follow from a non-intervention that they didn’t have a right to file their own action.

Now I understand your argument to be that the treaty itself precludes a cause of action; that then leaves the Constitutional claims.

The Constitutional claims are sounded under the first amendment and under the fifth amendment due process clause.

We have just heard from Mr. Dornan about the high personal stakes which his clients feel that they have – that they would be put at personal risk here. One of the arguments you make is that they have no standing.

Let’s just assume hypothetically, that that degree of risk and the chilling effect, if you will, arguably gives them standing.

What are your arguments under the first amendment here?

BS: Not as to the personal safety but as to the first amendment?

Judge Lynch: That’s right.

BS: Under Branzburg: there is not a recognised privilege that would protect someone from giving evidence absent a strong counter bearing interest; constitutional, common law or statutory privilege.

The first amendment privilege asserted here is an academic privilege of an Oral Historian doing research that is claimed to be akin to that of a reporter: I promise my source I’m not gonna reveal your name, I’m not gonna tell anybody where I got this information.

In fact, first of all, that was Boston College’s promise. They required that confidentiality be maintained….

Judge Lynch: Frankly, that seems to go to the standing issue as opposed to the merits of the first amendment claim. It may be primarily Boston College’s claim but they claim they also will be injured under both the the first and fifth amendment by this.

BS: I would submit Mr. Moloney’s lengthy affidavit has a scant mention of a chilling effect on Oral History projects and no one’s…

Judge Lynch: I’ve asked you to make some assumptions, arguendo, and then get to…please.

BS: So If I understand your question, what you…

Judge Lynch: And assume they have a sufficient interest in this action to raise the Constitutional claims, just hypothetically assume that.

What is your response as to why there are no Constitutional claims that can be plausibly stated here?

BS: Well, because there is not one that would override the purpose underlying the treaty between two sovereign nations.

There is, in just in the criminal context, there’s no right for a third party to come in and say: “I’m gonna block the giving of evidence that might implicate me”, unless it’s one’s personal fifth amendment privilege; but the first amendment doesn’t do that. It doesn’t provide that right for reporters and it doesn’t provide that right for academics. The…

Judge Boudin: My recollections of the cases, that are now rather old and I’ll go back and read them, is while the Supreme Court doesn’t seem to recognise in practice this first amendment right for reporters. It keeps saying things like “Well, it might depend on the circumstances.”

Do I mis-remember?

BS: To the extent that is the case, Judge Young gave weight to that.

That in fact, if the court gets there, Judge Young took into account all of the first amendment claims that were brought by BC which encompassed the same first amendment claims that Mr. Moloney and Mr. McIntyre were….

Judge Boudin: It’s just that I’d like an answer to Judge Lynch, that if we assume, somehow, they were in the case and they could raise these arguments themselves.

They got all the weight to which they’re substantively entitled and they lost: is that your position, in effect? And should have lost?

BS: Yes! If you get that far, yes.

Judge Boudin: It’s a little odd to be hearing about how well Boston College represents these interests when they’re not (scoffs) seeking to appeal the order to turn over the documents.

BS: Well….

Judge Boudin: And then you say, assuming they had serious first amendment interests, somehow those would disappear because the statute doesn’t, or the treaty doesn’t allow them to be raised.

If those interests really existed, you’d think there would be some way to have them protected regardless of what the treaty said, wouldn’t you?

BS: To have them taken into account?

Judge Boudin: If they’re taken into account and respected to the extent that whatever reservations the Supreme Court has made, quite unclear since it doesn’t exercise that authority in the existing cases, to refuse…to allow the piercing of alleged privilege. Whether or not that’s a correct resolution.

BS: But we found no precedent where a third party has the ability to insert into a proceeding in the course of a legitimate and serious, this is a murder investigation, but it might be terrorism, it might be genocide, and to say that could be protected merely by a criminal confessing to an academic in an Oral History project the world will never get that evidence and that…

Judge Lynch: Are you arguing then that this is a per say rule that it is “never” when it involves a criminal prosecution? There is never any possibility of an academic privilege? Your Brother (Ed. Note: MA term for opposing counsel. Here it refers to Eamonn Dornan) suggests this is a balancing of interest.

It’s not clear to me whether you are arguing that there is an automatic rule that the first amendment can never trump a criminal prosecution.

Or whether you are saying in most cases a criminal prosecution is a sufficiently legitimate government interest to override in any first amendment claim being made.

BS: We’re certainly saying that here there was nothing than could trump that. And also saying that in most cases it wouldn’t.

I can’t think of where it would, um….

Judge Torruella: Why isn’t the plain language of Rule 24 applicable here?

Where it says: “when the applicant claims an interest relating to property or transaction, which is the subject of the action and the applicant is so situated that the disposition of the action made, as a practical matter, would bear to impede on that applicant’s ability to protect that interest.”

The interest here being their safety.

BS: If we’re going back to the Motion to Intervene…

Judge Torruella: Isn’t that’s what’s before us here?

(Judges speak to each other)

Judge Lynch: Both.

Judge Torruella: Oh. Well anyway, that one is the one I’m interested in.

BS: The test is, that is one of the prongs for intervention under Rule 24, A 2; one of the three things to be demonstrated. We argued below they did not have such an interest because there’s not a recognised privilege to….

Judge Torruella: There’s not a privilege to safety?

BS: That would be under the fifth amendment. The….

Judge Torruella: Right.

BS: The issue there is Mr Moloney, who is here and a US citizen, asserted no risk to his personal safety. The personal safety of Mr. McIntyre….our constitution does not protect non-citizens outside of the country from unnamed third parties who might bring them harm as a result of testimony…

Judge Lynch: Actually, I took a look at the cases which the government brief cited and it seems to me almost all of them apply in the immigration context and have to do with plenary Congressional power over who enters the country.

This case is a little bit different.

I found no case that established the sort of Absolute Rule that your briefing suggested the case law established.

Judge Torruella: In fact, vis-a-vis, you seem to put it in some doubt.

BS: I think in most cases the concern is government action. There’s no assertion that our government or another government is going to torture people as….

Judge Torruella: No, but they’re claiming that the actions of our government are going to put them at risk.

BS: From?

Judge Torruella: And they’re claiming, and this is what I’d like to get to at some point, they’re claiming that that interest they have in their personal safety is not being properly protected by Boston College.

BS: The personal safety issue was certainly asserted by Boston College. The assertion is: that should the information be turned over that ultimately that will become known to unidentified persons who would then do harm.

The fact of The Belfast Project and Mr. McIntyre’s participation in that has been known for a while; there’s been news coverage and indeed a book published and various interviews, so that’s…

Judge Lynch: That’s an argument he’s already put himself in harm’s way.

And he argues, or his pleadings say: yes, but you haven’t seen anything yet. If this information becomes public the risk to me and my family becomes much greater.

It strikes me that the intervention question might be a bit of a sideshow if in fact it is clear, as a matter of law, that there is no first amendment interest sufficient to outweigh the government’s interest in complying with the treaty and in assisting a fellow sovereign under the treaty in a criminal prosecution, criminal investigation and prosecution.

So if I could get you to return to that point?

BS: I think there isn’t.

There is not a first amendment privilege that could be asserted by a third party who is not the holder of information to expose, impede, a proceeding to get evidence pursuant to a request for assistance…

Judge Lynch: That sounds like you think Boston College could assert such a claim but that these people cannot.

BS: That is correct.

Judge Lynch: And so the fact that Boston College has chosen to absent itself and not to appeal is dispositive of the arguments here?

BS: Well, I…

Judge Lynch: Let me go back. Just assume hypothetically, that Boston College was here. Wouldn’t you also be arguing that there is no first amendment claim?

BS: We would be arguing that the District Court appropriately declined to quash the subpoena. I mean, the District Court, as we argued in our brief, weighed more than the government, went farther than the government even thought it should under the MLAT. There’s a very narrow enquiry…

Judge Lynch: No. We’re not under the MLAT. We are under (scoffs) the federal Constitution.

BS: Well then the Branzburg principles: is this an exercise intended to harass someone? Is it a legitimate public enquiry, or excuse me, a legitimate investigation? Which would, taken into account here, would apply and we would be arguing that Boston College should not made a showing that would have outweighed that.

Judge Lynch: Okay.

BS: As we argued, we believed that the intervention issues were dispositive but should the court…look largely… because that was the point at which the appellants would have had the most rights in the proceeding which Boston College brought, that the United States had instituted essentially, to quash the subpoena. And that when the court determined they didn’t have the right under the MLAT to bring the claims against the Attorney General under the APA similarly, he appropriately decided that a separate, independent action, which was really a way of getting the court to reconsider a decision it had made earlier, was likewise sound. So that both the denial of intervention and the dismissal of the separate civil case were correct.

Judge Lynch: Thank you.

Eamonn Dornan (ED): There’s nothing further in rebuttal.

Judge, we’re in the hands of the court. Unless the court has any questions?

Judge Lynch: Oh! Counsel, bless you! (all laugh)

Thank you very much. It was a very useful argument and the court is in recess.