Transcript: Eamonn Dornan’s Oral Argument
First Circuit Court of Appeals
Boston MA 4 April 2012
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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 a member of the XXX 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 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 stood 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 personally, 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 is what made possible The Belfast Project and that confidentiality overrules as a result of my clients’ individual reputations as journalist 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 ( blue – 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 to mechanics of the hidden 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 issue 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 extent and no criminal prosecution is likely.
We should be committed 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 right 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.