Boston legal eagle John Foley updates us on the U.S. Court of Appeals Oral Arguments on the controversial Boston College Irish Tapes

Boston legal eagle John Foley updates us on the U.S. Court of Appeals Oral Arguments on the controversial Boston College Irish Tapes
Irish Radio Network USA
Saturday 7 April 2012

Major boost this week as U.S. Senator Scott Brown (R-MA) calls for withdrawal of the subpoena issued by U.S. Attorney General Holder –the first major Republican figure to do so.


Adrian Flannelly (A) interviews John Foley (J) about the oral arguments presented last Wednesday in the First Circuit Court of Appeals in Boston concerning the appeal filed by Ed Moloney and Dr. Anthony McIntyre in the matter of the subpoena served on Boston College for material archived there and known as The Belfast Project.


Adrian Flannelly (A): As we link up with John Foley, who is the principal of Foley Law Firm in Boston and before we start even to talk about the oral arguments with Attorney General Eric Holder’s subpoena of Boston College, Irish records… subpoenaed, of course, for the RUC or the PSNI, the Police Service of Northern Ireland.

Let me first welcome you, John Foley, as we bring our microphones up to Boston, MA and also, John, to extend our own sympathies to you. The last family link in your ancestral home in County Galway passed away, too.

John Foley (J): That’s right, Adrian. First of all, thank you and very good morning to you. It’s a pleasure to be here. I want to express my condolences to the Staunton and O’Dowd families on the death of Rory. It’s just very sad and to read Niall’s column, Oh! It was difficult to get through it with the pain and all.

Our story’s a bit different: My cousin Mike, seventy-seven years of age, he passed away doing what he loved which was chasing his cows around the Connemara coast. He was missing for a day. His dog, Brownie, led his friends and neighbours to him. They found him in the field with his hay and surrounded by his cows.

One of the very beautiful things they do there, as you know, they literally bury their dead themselves and it was a beautiful thing. And we got to celebrate his life.

A: Great! The twist there is that Brownie, the dog, was able to draw attention to the fact that something major was going on. And indeed, there was a passing!

And I am sure that your cousin will be happy to know that Brownie, the dog, was also the last one around to see him alive doing what he loved to do.

J: And we can’t get Brownie away from the back door. Despite the efforts of the neighbours and the steaks that are being offered, Brownie goes back to the back door. When I stopped to take a couple of bricks of turf home with me, Brownie greeted me and he was looking for cousin Mike. So Brownie was faithful right to the end. For our family it’s the end of an era and the passing of just a gentle, sweet man…

As his neighbours said, and I love the expression: “There’s no harm on that fella!”

I just love the expression!

A: Indeed. Now on the continuing efforts…to say continuing saga wouldn’t even cover it…but on the very serious issue of the subpoena by the Police Service of Northern Ireland through our own US Attorney General Holder to get tapes, Oral History tapes from Boston College that were definitely not intended to be plucked at by any authorities…this continues.

Give us a brief description before you tell us the update, and a better one than I’ve just given with respect to the Boston College tapes.

J: You know Adrian, it’s fourteen years yesterday since the signing of the Good Friday Agreement and we are wasting our time, our legal skills and our community efforts on a silly issue. It is silly! It’s been concocted by the nameless bureaucrats in Belfast.

And in a nutshell, a cold case squad made up of former RUC officers in Belfast have tried to embarrass Sinn Fein President Gerry Adams by trying to resurrect the case of Jean McConville. She’s the Belfast mother who disappeared and was killed in 1972, forty years ago. She was killed by the IRA for spying.

The First Circuit Court of Appeals heard the case of Anthony McIntyre, he’s the researcher of the Boston College Oral History project, and Ed Moloney, the Project Director.

The subpoenas were issued to Boston College in the theory that they would bring someone to justice for the killing of McConville but that death pre-dates the Good Friday Agreement and was not even investigated for decades by the RUC.

So this past week the hearing had to do with McIntyre and Moloney’s standing the case. And as you know one federal district judge, William Young, has said that they were adequately represented by Boston College.

But their lawyer, Eamonn Dornan, who was assisted by Jim Cotter from Quincy, said “No”.

And the appeals court sounded as if they didn’t think that BC represented the two, either. With one of the judges calling it “odd” that BC didn’t appeal the order to turn over the documents.

This past week’s hearing went extremely well. Dornan is a wonderful lawyer. He was very concise, almost simple, actually. And the judges listened to his argument with very minor questioning.

The Assistant US Attorney, Barbara Healy-Smith, had a more difficult time. She was peppered with questions and the Judges pointed out that maybe Moloney and McIntyre do have standing.

So the oral argument went extremely well.

But cases aren’t won or lost in oral arguments. It really comes down to the written briefs. We’re expecting a decision from the First Circuit of Appeals in the next couple of months.

A: We have had in the news for the last couple of weeks and we indeed have every reason to hail the efforts of MA Republican US Senator Scott Brown.

Firstly, for submitting and looking for, which we hope will happen, the last shot at getting working visas. Now that The Schumer Bill has been pretty much rejected, he has been working with not only (Senator) Schumer, but also with Republicans to try to get this immigration bill passed which would allow ten thousand five hundred visas for those in Ireland at this difficult time which would be more than useful. And would also open the door for us for immigration issues, such as the horrific tragedy of the number of Irish people who are here, living here in the shadows.

Now right on the heels of that, it is something very significant that US Senator Scott Brown is on board and recognising the significance of how destructive the release of these Boston tapes is going to be. That’ll give us again, a much need boost and also it brings in the Republicans, who normally to date, have pretty much stayed on the sidelines while waiting for this one to shake out.

J: Scott Brown has been very active. Like you folks down there, we’ve been pressing on the E-3’s and we will continue to press until we get it. And frankly, it’s wonderful to have somebody on the other side of the aisle making the same argument; Brown’s a Republican so that’s been helpful.

As far as the BC matter is concerned, basically we’ve waged a two-pronged attack. The first prong is the legal fight and we’re doing that and we’ll continue to do that. But the second prong is the political front.

Senator John Kerry chairman of the Senate Foreign Relations Committee wrote an Op-Ed piece this past week in The Boston Herald and as you mentioned, Senator Brown has written to Secretary Clinton and Attorney General Holder basically saying quash the subpoena. It’s silly.

In addition to that he met with Anthony McIntyre’s wife, Carrie Twomey, who was in Boston for the hearing.

But beyond that we’re getting support now from Pennsylvania. We had a letter this past week from Mike Doyle, who’s the Congressman from the fourteenth district in Pennsylvania. And we expect more Congressional support in the week ahead.

A: Which is what we have been saying and what you have indeed taken a leading role in, in that this can quite easily go the wrong way if we don’t rattle on the cages.

Even the Attorney General of the United States, he would have to stand back and say: “Wait a minute, Why are all of these representatives of the US Congress and Senators and the Ancient Order of Hibernians and all the other groups, why are they putting that kind of pressure on us?”

It’s a kind of a double-edged sword in one sense: in the sense that now the Attorney General might be saying, “Well, wait a minute, what’s going on here?”

But this one could quite easily, without the kind of support that we are seeing and watching, that it can just kind of go through and it would do irreparable damage. In addition to being silly it is destructive!

Silly in the sense, and I agree, that it shouldn’t have come up in the first place, but this is not just a fly in the ointment. This is very, very destructive and we need to get the other side of it.

J: You’re very right. It could unravel all of the work that’s been done in the past fourteen years. And at the same time, there are people who could really be in danger.

You know, I was personal friends with Rosemary Nelson. You knew and you heard of the threats to her safety. And we expressed our concern – nothing was ever done.

And unfortunately those threats were carried out. A bomb was put under her car and she was killed. She was assassinated.

And now we have Carrie Twomey, who is a US citizen, born in the US, two US-citizen children, and her safety is certainly in jeopardy. And all over a very silly issue.

On the counter side to that, it’s fourteen years since the Good Friday Agreement but this BC mess has in a way, re-invigorated the Irish-American community. Michael Cummings, who is from down your way, has done an excellent job in quarterbacking this effort.

A: He surely has!

J: If he got a nickle a for every email he sent he would be retired.

He’s put together a line-up, the national presidents, you mentioned the AOH, Seamus Boyle has been fantastic, the IAUC, Tom Burke, and of course The Brehon Law Society.

So if there’s any silver lining it’s kind of re-invigorated us as a community and we should be active as a community because I don’t believe we punch nearly as heavy as we should. We’re a large community and we should be doing more of this.

But we should be focused on the issues that really matter to Irish-Americans and Ireland, like immigration, and not some silly subpoena put forward by the Historical Enquires Team of the PSNI.

A: Which, among other things, is distracting from the issue of immigration. In addition to all the support that we have from public figures, we cannot dismiss the significance of listeners to this program and those who don’t listen to this program but the public reaction, and the letters and the emails…if they don’t keep coming well, we’ve got a problem.

J: Adrian, I’ll tell you. I was meeting with somebody who used to work at the British Consulate here in Boston. He mentioned to me that Senator Brown’s office, his Chief of Staff Jerry McDermott, had called the local Consul-General, Dr. Budden, and was told that absolutely that would result in a call or email being sent to London.

So unfortunately in the weeks ahead, we’re going to institute a grassroots effort to let the folks in London, the foreign service, know that we can play the same games.

A: And again, this has got to have a groundswell. It’s great to bring it as far as it has come; it’s heading in the right direction. But by no means are we out of the woods nor are those who support the peace process in Northern Ireland.

J: Correct. The cause continues. The struggle goes on. We all have to play our role however minor. And a phone call or an email to the British Consul-General or to your Congressman asking them to pay attention to this issue goes a long way.

A: Yeah, and that’s on both sides. Congressmen, Senators, across the United States, they do pay attention. If they’re left alone then they will assume that it’s not as big an issue as we know it is.

J: The squeaky wheel gets the oil.

A: Okay! Happy Easter to you. And you will keep us updated on that.

J: Will do, Adrian, thanks very much for the chat. May you and your listeners have a wonderful Easter and a Happy Passover!

A: Thank you. Thank you very much, indeed. Friends, there you’ve heard it from somebody who has been to the forefront in setting the stage for something good for everybody; and that is the quashing of this subpoena from unnamed sources and initiated by the Police Service of Northern Ireland and coming from London at this time.

Let’s hope we will be able to report to you shorty that, in fact, this too has gone away in the interest of peace and stability in Northern Ireland.

10:36 (Ends)