Mosquito Won’t Stop Buzzing in Court’s Ear

Mosquito Won’t Stop Buzzing in Court’s Ear
Chris Bray
MONDAY, APRIL 16, 2012

Two weeks ago, Assistant U.S. Attorney Barbara Healy Smith had a very bad day in court during oral argument before a panel of judges from the First Circuit. Today, amazingly, she’s going for a do-over, filing a letter with the court to challenge arguments made by Eamonn Dornan, the exceptionally sharp lawyer who argued the Belfast Project appeal for Anthony McIntyre and Ed Moloney. More in a moment, but here’s the letter:

Healy Letter




The remarkable thing is that Barbara Healy Smith spoke after Eamonn Dornan in court. She had an opportunity to challenge or rebut anything he told the judges. Having failed to do that, she now in effect comes padding back into the courtroom two weeks later, holds up a finger, and says, “And another thing….”

Lawyers, is this sort of thing common? Is it regarded as ethical? At the very least, it seems sniveling and unprofessional.

ADDED LATER:

And then there’s the remarkable content of the letter: “The government would be happy to provide additional information on this issue should the Court wish — although such information would be outside the record of the case.”

How on earth could the government possibly “provide additional information” to a court on an issue raised during oral argument about a case that the court is considering, but insist that “such information would be outside the record of this case,” without appearing to suggest that they wish to have a private discussion with the judges who have decision making authority in their cause?

ADDED LATER:

In response to an email message, Eamonn Dornan describes the government’s letter to the court as “inappropriate” and “highly unusual.”

US Attorney Letter to Court

U. S. Department of Justice
Carmen M. Ortiz
United States Attorney
District of Massachusetts
John Joseph Moakley United States Courthouse
1 Courthouse Way
Suite 9200
Boston, Massachusetts 02210

Margaret Carter, Esq.
Clerk of Court
Court of Appeals for the First Circuit
John Joseph Moakley United States Courthouse
One Courthouse Way, Suite 2500
Boston, Massachusetts 02210

Re: In Re: Request from the United Kingdom Pursuant to the Treaty Between the Government of the United States of America and the Government of the United Kingdom on Mutual Assistance in Criminal Matters in the Matter of Delours Price, Appeal Nos. 11-2511 and 12-1159

Dear Ms. Carter:

This case was argued on April 4, 2012 before Chief Judge Lynch, and Judges Torruella and Boudin. Kindly bring this letter to the attention of the panel.

During appellants’ oral argument, counsel relied on a number of factual claims which are not in the record before this Court. One assertion is of particular concern. Counsel for the appellants argued to the Court that there is a “grave risk of physical harm to the appellants” from the disclosure to the United Kingdom of Belfast Project recordings. The government disputed this assertion in the district court, citing, among other things, the fact that there is no record of any reports to police in the Republic of Ireland or Northern Ireland regarding credible threats to Mr. McIntyre or his family. [D.7 at 16-18]. At oral argument, counsel for the appellants asserted that the United States Department of State takes the threat of harm to Mr. McIntyre and his family “much more seriously” than the Department of Justice and has “invited”Anthony McIntyre’s wife “in for a security assessment,” creating the misimpression that the Department of State has taken a position contrary to the Justice Department’s view of the matter.

Appellants’ claim of an agency disagreement is not supported by anything in the district court record. Moreover, the Department of Justice has been working closely with the Department of State and can assure this Court that the agencies’ views of the matter are compatible. The government would be happy to provide additional information on this issue should the Court wish – although such information would be outside the record of the case.

In any event, as the government has argued in its brief and at oral argument, appellants’ claim of potential harm from third parties, even if substantiated, would not entitle them to prevail in this appeal.

Respectfully submitted,

CARMEN M. ORTIZ
United States Attorney

By: /s/ Barbara Healy Smith
BARBARA HEALY SMITH
Assistant U.S. Attorney

cc: Eamonn Dornan, Esq., Dornan Associates, PLLC (via e-mail),
1040 Jackson Avenue, Suite 3B, Long Island City, New York 10017

James J. Cotter, III, Esq., Law Offices of James J Cotter (via e-mail),
Post Office Box 270, North Quincy, MA 01271


See response: Response to Department of Justice Letter to Court

Courtroom battle over IRA interviews

Courtroom battle over IRA interviews
Irish Republican News
April 6, 2012

A US appeal court has adjourned to consider whether an academic project by Boston College involving confidential interviews with former IRA Volunteers must be handed over to the PSNI police.

The PSNI’s request for the interview tapes, to assist it in bringing conflict-related prosecutions against former IRA members, was strongly opposed by the college’s paid researchers, former IRA prisoner Anthony McIntyre and New York-based author Ed Moloney.

According to reports, Sinn Fein leader Gerry Adams is among those who could be questioned about the contents of the archive.

A hearing this week was said to have “gone well” for McIntyre and Moloney, but the result of the court’s deliberations may not be known for several weeks.

Complicating the issue is a second Boston College archive of secret peace process documents, containing details of the decommissioning of the Provisional IRA’s weaponry.

While the college itself has shown little or no interest in opposing the PSNI subpoenas, McIntyre and Moloney fear they could be targeted as British agents for helping to gather such a trove of intelligence material on the IRA. The researchers also argue that releasing the documents could risk the lives of people who gave testimonies.

The PSNI particularly want the tapes of discussions with Dolours Price — a sister of Marian Price, another political ‘dissident’ who was interned by the British government last year. The Price tapes and seven others have been handed over to the federal court. This move is being appealed.

The men’s lawyer told the court that the pair had a real fear of bodily harm which meant that, under such circumstances, their journalistic privilege could then block the subpoena.

Eamon Dornan, representing Mr Moloney and Mr McIntyre, argued that Mr McIntyre and his wife and children, who live in County Louth, faced “a grave risk of physical harm” if the interviews were turned over to the PSNI.

Mr Dornan also argued that the former IRA figures who were interviewed, and the peace process itself, would be threatened by the release of the interviews, and that it would have a chilling effect on future history projects.

“The district court should have given much more weight to these claims,” said Mr Dornan.

He also said US attorney general Eric Holder failed to weigh the risk to the peace process of turning the records over under the terms of a treaty between the British and American governments.

Mr Dornan also argued that there was no reasonable expectation that the PSNI’s efforts would result in a successful prosecution, and pointed out that Dolours Price was not living under British jurisdiction.

Mr Dornan also said the PSNI had previously made no attempt to arrest or question Dolours Price, even when she appeared in a court in the North in 2010.

The judges reserved most of their questioning for the US prosecutor, Barbara Healy Smith, who argued that Moloney and McIntyre did not have the legal standing to appeal.

Judge Juan Torruella and chief judge Sandra Lynch appeared sceptical of Ms Smith’s claim that the US constitution did not offer protection to non-citizens.

Mr Moloney and Carrie Twomey, Mr McIntyre’s wife, attended the hearing with backers from the American Civil Liberties Union.

Ms Twomey, a US citizen, has played a key role in trying to sway American politicians that turning over the recordings could endanger her family. Seven US politicians, including Senators John Kerry of Massachusetts and Charles Schumer of New York, have written letters to Secretary of State Hillary Rodham Clinton and US Attorney General Eric Holder urging them to persuade British authorities to withdraw their request for the recordings.

“This isn’t just some dusty old papers in a library,” she says. “This is people’s lives. This is my family.”

They were encouraged by the tone of the judges’ questions. “It went better than we had hoped for,” said Mr Moloney.

Congressman Tim Murphy Letter to Attorney General Eric Holder and Secretary of State Hillary Clinton

The Honorable Eric Holder
Attorney General
United States Department of Justice
950 Pennsylvania Ave, NW
Washington, DC 20530

The Honorable Hillary Clinton
Secretary of State
United States Department of State
2201 C Street, NW
Washington, DC 20520

Dear Attorney General Holder and Secretary Clinton:

I am writing on behalf of my constituents who relay the same trepidation that I share regarding the ongoing strategy of the United Kingdom to obtain academic materials from Boston College. You are aware that the British Government via our own Department of Justice is invoking the Mutual Legal Assistance Treaty (MLAT) to force to Boston College to turn over research materials collected many years ago. This tactic orchestrated by the British Government not only violates the sentiment behind the Good Friday Agreement but presents unintended consequences for Boston College academia and the delicate balance in Ireland.

My constituents have shared strong beliefs that the timing and political motivations behind this subpoena are disconcerting to say the least. As a keen observer of the peace efforts being made in Ireland I fear that the invasive request delivered to Boston College will garner little benefit and risk large potential unrest within the peace of Northern Ireland.

My understanding is that the original mutual agreement between the scholars and individuals involved in the Boston College Belfast Project demonstrated an understanding of privacy for all findings. I hope that this agreement will be honored. The subsequent data complied by the researchers was obtained solely with the promise of long term anonymity. The release of these documents, documents currently held in storage under a stay of execution, is hazardous to international academic endeavors of the future and the international peace process taking place today.

The MLAT was designed to bring nations together under a common understanding. We now see that academic achievement is being leveraged to undermine the peace process and impact the state of international relations. I hope that you will review this case closely and convince the British Authorities to rescind this request. I am grateful for your time and attention to this matter. Please do not hesitate to contact me if you have any further questions.

Sincerely,

Tim Murphy
Member of Congress

Progress in Northern Ireland?

Progress in Northern Ireland?
Michael J. Cummings, Member
National Board
IRISH AMERICAN UNITY CONFERENCE
WASHINGTON, D. C.

The approach of St Patrick’s Day was for me, as Public Relations Director of the National Board of the AOH, a time of anxiety. There were the attempts to hijack the religious and heritage themes of the parades to promote some political correctness. Then there were the greeting cards and Saint Patrick’s Day paraphernalia mocking all things Irish. However the greatest concern …certainly before the Clinton era… was the “shamrock shenanigans” unfolding in Washington. A bowl of shamrocks would be bestowed by the Irish President, pints would be lifted, platitudinous statements would be issued and a conflict that cost over 3000 lives drew condemnation of violence with little reference to justice and the rule of law. Today it seems the bad old days have returned. Barely 15 years since the 1998 Irish peace pact was signed, the British are ignoring the law, obstructing justice and inhibiting peace. The only thing missing is the outrage.

For fifty years after WWII, the British held a choke hold on the Department of State and the U. S. position on the six county conflict. But they had a willing partner in the Irish government whose elite diplomatic staff rarely ventured beyond the cocktail circuit and the tourism portfolio. In 1978 as Taoiseach Lynch prepared for a U. S. visit, the Irish Department of Foreign Affairs described the concerned and activist Irish-American community this way in a briefing memo: “They cling closely to familiar myths of British repression which provides them with a history, an identity and a cause.” Bloody Sunday, Dublin Monaghan bombings, internment, RUC lawlessness … were, according to the dandys of the Irish diplomatic corps, all ‘myths’ of British repression. How bad was this mindset? Talking once with Angela Carter, of the Keshcarrigan Bookshop in NYC, she spoke of trying to interest the Consulate staff in doing more to promote the Irish language here. “We must not be seen doing anything to help the enemy” was the response; a veiled reference to Sinn Fein’s promotion of the national language of Ireland.

For years House Speaker O’Neil would dismiss the pleas of many Americans concerned about the garrison rule of the British because the Irish government would rarely speak and take little action on the abuses and lawlessness. “What do you want me to do, be more Irish than the Irish government?” would be his derisive reply. Speaker Foley, who never met a royal he didn’t like, once claimed at a hearing that “there was no such thing as British oppression.” Breathtaking but unfortunately true. Irish National Caucus spokesman Fr. Sean McManus gives a fair accounting of all this in his book My American Struggle for Justice in Northern Ireland. Given the spineless Speaker’s, British lobbying and Ireland’s silence throughout the 70’s and 80’s, the voices of Members of Congress like Ben Gilman, Ham Fish, Don Payne, Eliot Engel, Joe Kennedy, and Chris Smith on behalf of the victim of British oppression were all the more remarkable.

St Patrick’s Day 2012 might well have been a turning point for Her Majesty’s Government plans for Ireland. Who would have thought it would have taken only 14 years from the Good Friday Agreement to restore a White House officially indifferent to UK violation of the terms and spirit of the Pact? Consider these developments:

  • President Obama and Prime Minister Cameron meet March 14th and not a word is mentioned of holding those accountable for the Bloody Sunday murders or the failure of the UK to disclose the British Army role in the Dublin-Monaghan bombings.
  • In Irish Heritage month, Secretary of State Clinton’s pleas help release 1000 political prisoners in Myanamar but not a word is uttered for two political prisoners in N. I. Gerry McGeough and Marian Price.
  • The U. S. says nothing when the British announce there will be no public inquiry into their murdering of human rights lawyer Patrick Finucane as promised. At least when Egypt arrested a pro-democracy activist, Secretary of State Rice showed displeasure by canceling a planned trip to Egypt. The Obama administration remains mute to this day on the Finucane slaying!!
  • The powers of N. I. Police Ombudsman Office, established as part of the Agreement to review police action, are being curtailed by the British and 300 ex-police officers, richly pensioned off, have been re-hired to accelerate the cover up of police lawlessness and corruption. They call it ‘records management.’
  • The Irish Tanaiste (Foreign Minister) Eamon Gilmore returns from the St Patrick’s Day festivities in America to publicly express concern that Josef Kony, the Ugandan mass murderer remains at large and urges the International Criminal Court to act upon the 33 counts of crimes against humanity against him. Ironically 33 is the number of deaths from the Dublin-Monaghan bombings but not one word was uttered in America by any Irish government official demanding the British Army be held accountable for the conflict’s largest loss of life.

Not alone is the U. S. silent on the core conflict issues but it now collaborates in the bias and political chicanery of the British.  Appeasement of the British encouraged a spiteful former MI-5 operative to use a US-UK a Mutual Legal Assistance Treaty to request records from Boston College’s Irish Oral History project.  The treaty was intended to aid prosecution of money laundering by drug cartels but the British believe it is better used to investigate 40 year old crimes particularly if there is a chance it can give a political black eye to Sinn Fein. By contrast, Britain’s efforts to exculpate every British soldier and police officer from criminal culpability of their killing of Catholics continues unabated. Does the fact that British banks hold a large portion of Irish debt explain why Ireland has not used the MLAT to demand records of the British Ministry of Defense relating to the 1974 Dublin-Monaghan massacre?

Some will think unwarranted our concern for these developments on the Irish peace process. Dr. Paul Nolan, author of the recently released N. I. Peace Monitoring Report, fears for the future. There are, he notes, 26 more ‘peace’ walls than when the Belfast Agreement was signed. Housing and schools are still seriously segregated. A high percentage of Catholic police recruits drop out. He believes we may now be enjoying simply a pause in the conflict, a sort of “generational” truce in Ireland. Director of Public Prosecutions Barra McGrory and others have called for a mechanism to deal with the past. But if Britain continues its corruption of the GFA, we need not worry about a mechanism for dealing with the past. Ireland’s silence and U. S. indifference will insure that the past is merely repeated.

 

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.

http://media01.ultratek.com/irishradio/BC%20John%20Foley.wma

Download

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.

10:19

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)

Senator Frank R. Lautenberg Letter to Secretary of State Hillary Clinton

The Honorable Hillary Rodham Clinton
Secretary of State
U.S. Department of State
2201 C Street NW
Washington, DC 20520

Dear Secretary Clinton:

I write to express my concern regarding the United Kingdom’s (U.K.) efforts to obtain materials gathered by Boston College’s Belfast Project, an oral history archive documenting the Troubles in Northern Ireland.

I commend you for your continuous leadership and support for reconciliation efforts in Northern Ireland. After decades of violence, the 1998 Good Friday Agreement has greatly improved security in the region and established a clear blueprint for a peaceful and enduring settlement. However, challenges still remain in fully implementing this Agreement and I am troubled that the release of the Belfast Project materials could upset the tremendous progress that has already been made.

Additionally, the participants in the Belfast Project are justifiably concerned about their safety should these interviews be turned over to the U.K. The interviews were recorded under an agreement that they would be kept confidential while the participants are alive. The participants and their families have raised concerns about possible retribution should these materials be released. In addition, this effort could put the future of sensitive academic research projects like the Belfast Project at risk, sending a signal to participants that their confidentiality may not be protected.

I understand the U.K. has made this request under the U.S.-U.K. Mutual Legal Assistance Treaty and I fully respect the U.S.’s commitment to this treaty. However, given the negative impact the release of these materials could have on the fragile peace in Northern Ireland, the safety of the participants, and the integrity of and participation in similar oral history projects, I respectfully urge you to work with the U.K. government to have this request withdrawn.

Thank you for your time and attention to this important matter.

Sincerely,

Frank R. Lautenberg

Cc: The Honorable Eric Holder, United States Attorney General

Cause and Effect – How About September?

Cause and Effect
Boston College in-house lawyer takes vacation, delays their appeal
Chris Bray
MONDAY, APRIL 9, 2012

Okay, this is funny.

For months, the government lawyers arguing in court for the subpoenas of archival material at Boston College have sounded a persistent note of urgency: This is a murder investigation! There’s no time for delay! Reflecting this urgency, the government pushed for an expedited schedule in the First Circuit, trying to resolve the legal appeals over the subpoenas as quickly as possible. (See, for example, this scheduling order in the appeal filed by Ed Moloney and Anthony McIntyre: “The government’s request for an expedited briefing schedule is allowed. “)

Then came April 4, when the government’s lawyer was left baffled and babbling by the questions from a panel of appellate judges in the Moloney and McIntyre appeal. Suddenly? Not so urgent. Below, a motion from Boston College’s lawyers to slow down the briefing schedule in the university’s separate and more limited appeal in the same case. Taste the funny: “The Government has authorized Boston College to advise the Court that the Government assents to this motion, and does so with the hope that briefing in this case will proceed expeditiously and that the case will be ready for argument by this Court’s September sitting.”

Boston College, and their frenemies in the U.S. Attorney’s Office in Boston, hope that briefing in this case will proceed expeditiously so that argument can happen soon. In, like, maybe let’s skip the rest of the spring and the whole summer and go for, I don’t know, early autumn?

Why the suddenly discovered need for a delay, in a motion filed two days after Eamonn Dornan and the ACLU of Massachusetts succeeded in thoroughly upending the government’s arguments in court? The explanations from Boston College are as funny as the delay itself: “In-house counsel for Boston College reviewing and contributing to the brief has a previously long-scheduled vacation commitment out of the Boston area from April 13 to April 22, 2012.”

previously long-scheduled vacation suddenly necessitates an unanticipated delay in the briefing schedule that will push oral argument from June to September. Your honor, who could have guessed that a previously long-scheduled conflict would suddenly arise right after the government had a terrible day in court and the judges made fun of the idea that Boston College adequately represents the interests of its researchers, causing laughter in the courtroom? That previously long-scheduled vacation was a total curveball, for sure.

How About September

In Boston, journalist Moloney battles to protect sources

In Boston, journalist Moloney battles to protect sources
By Joel Simon/CPJ Executive Director
CPJ Blog
Press Freedom News and Views
Committee to Protect Journalists
Defending Journalists Worldwide

In December 2002, the U.N. Tribunal charged with prosecuting war crimes in the former Yugoslavia ruled that Washington Post reporter Jonathan Randal could not be compelled to provide testimony in the case of a Bosnian Serb official accused of carrying out a campaign of ethnic cleansing.”If war correspondents were to be perceived as potential witnesses for the Prosecution,” the Tribunal noted, they “may shift from being observers of those committing human rights violations to being their targets.” As a result of that ruling, war correspondents enjoy some immunity against compelled testimony at the international level. But this is not necessarily the case in the United States.

A case playing out in the U.S. Court of Appeals in Boston highlights the lack of protection for conflict reporters under U.S. domestic law. Ed Moloney, an award-winning Irish journalist who has covered the conflict in Northern Ireland since 1979, and researcher Anthony McIntyre are fighting to keep their confidential sources secret. Moloney, a permanent resident of the United States, directed “The Belfast Project,” an oral history project documenting “The Troubles” that was deposited at Boston College in an archive that would be sealed, according to the terms of the project, until the participants granted permission or died. Among the many interviews in the project are ones from the late 1990s with Brendan Hughes, who subsequently died, and Dolours Price, who is very much alive. Both are former members of the Irish Republican Army. Non-confidential parts of these interviews were used in a book by Moloney and a subsequent high-profile documentary.

The British government is now seeking access to the oral history project for an investigation into the 1972 killing of Jean McConville, a mother of 10 in Belfast whom the IRA has admitted to killing because she was suspected of being an informant. McConville’s killing has received a lot of attention in Ireland because of allegations that Sinn Féin leader Gerry Adams commanded the IRA unit responsible for ordering her execution and secret burial, allegations that Adams denies. Critics of the UK prosecution have called it a political attack on Adams and say it could undermine the 1988 peace deal that ended decades of fighting in Northern Ireland.

Under the terms of a bilateral agreement, U.S. authorities are cooperating with the UK investigation and have served Boston College with a subpoena to produce the materials. Moloney says these include confidential journalistic material he used for his book and documentary. If the subpoenas are successful Moloney may be legally obliged to verify the material so it can be used as evidence in criminal proceedings, something he says he will not do.

In December, a judge ruled that Boston College had to turn over the interviews with Price. Then, in January, a judge ruled the university had to hand over interviews with seven other subjects who also discussed the killing. Boston College has appealed that ruling, challenging whether the material is necessary to the investigation. That case is expected to be heard in June.

Meanwhile, Moloney and McIntyre have filed a legal challenge of their own asserting that they should be allowed to participate in the case so they can fully defend their interest in keeping the interviews under wraps. Their lawyers have argued that releasing the documents would violate Moloney’s rights under the First Amendment and could endanger the life of McIntyre because of his IRA connections. The ACLU filed an amicus brief that lays out the legal arguments. A ruling is expected in the coming weeks on the motion by Moloney and McIntyre.

The implications from the Moloney case are twofold. First, conflict reporters based in the United States need to understand they could be subpoenaed as part of an international investigation and, if they were, their ability to protect their confidential sources is unclear.

To give one of many possible examples, if the Colombian government launched a criminal investigation into crimes committed by the FARC guerillas and asked the U.S. government to enforce a subpoena against a journalist for The New York Times, “I think they’d enforce it once a threshold showing was made that it was an actual government investigation,” noted Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “And American authorities do not seem to give a rip whatsoever whether journalists are able to do their jobs anywhere in the world. Sad, but true.”

Second, Dalglish notes, if a journalist is willing go to jail to protect a source, the only way to keep that commitment is to retain physical control of the material. Once the material is in the hands of another individual or institution, the challenges grow.

But while the legal issues in the Moloney case may be complicated, the principle is not. Journalists covering conflict, particularly those reporting on human rights violations and crimes of war, must be able to protect their confidential sources in order to be able to do their critically important job with some modicum of safety. While that principle has been upheld at the international level in the Randal case, it has not been established in the United States.

Joel Simon is the executive director of the Committee to Protect Journalists. He has written widely on media issues, contributing to Slate, Columbia Journalism Review, The New York Review of Books, World Policy Journal, Asahi Shimbun, and The Times of India. He has led numerous international missions to advance press freedom.

What’s New to Boston College Subpoena News

QUICK LINKS TO LATEST ADDITIONS TO THE SITE

9 April 2012

MOLONEY & MCINTYRE FIRST CIRCUIT COURT OF APPEALS HEARING 

 Last week Moloney & McIntyre’s appeal was heard. Audio and transcripts of the hearing are available:

 Press Coverage of the hearing:

 Boston College Law Student Frank Murray argues for a Constitutionally rooted researchers privilege in his law review note on the Belfast Project Case. This is a work in progress.

 Press previews of the hearing:

POLITICAL ACTION

 Boston College case raised with the Taoiseach; Congressional pressure kept up on Holder, Clinton

BOSTON COLLEGE

 Coverage of Boston College faculty call for investigation into administration’s handling of the Belfast Project and subpoenas

PSNI

 Comment on the PSNI’s involvement in the case:


30 March 2012

The Moloney & McIntyre hearing in the First Circuit Court of Appeals is next week, Wednesday, April 4th. Oral arguments will be presented to a panel of judges: Chief Judge Sanda L. Lynch, and Circuit Judges Juan R. Torruella and Michael Boudin.

Over the last month there has been more political movement from members of Congress, questions over Boston College’s credibility were raised, the last filings from the US Attorney and Moloney and McIntyre were submitted, Irish America kept the pressure on, and more. Here’s a round-up of the issues covered:

BOSTON COLLEGE 

 Jack Dunn’s statements questioned; BC’s commitment to Confidentiality; Origins of Project; BC Faculty Call

POLITICS

 Irish America turns up the heat; Congress keeps the pressure on; Secretary of State for Northern Ireland Owen Paterson is interviewed

ACLU

COURT DOCUMENTS

 Chris Bray’s analysis of US filing:

 Ed Moloney looks at the case:

INTERVIEWS

 “The dominant issue in the Irish-American community today.” John Dearie


24 February 2012

❡ Court Documents:

❡ Issue raised in the Dáil:

❡ Congress:

❡ Legacy Issues:

❡ Academic Issues:

❡ Boston College’s decicision to Appeal:

❡ Chris Bray:


1 February 2012

MEDIA

❡ JANUARY 23 – FEBRUARY 1, 2012:


23 January, 2012

COURT DOCUMENTS

Over the weekend, Judge Young ordered at least a third of the Republican archive to be turned over; in a rare Saturday filing, the Department of Justice immediately asked for even more of the archive. Loyalist interviews are also involved. Currently, Moloney and McIntyre’s lawyers have obtained a Motion for Stay in the Appeals Court which means no material will be moving from the court until that Motion is heard in March.

Findings and Order

Government’s Motion for Partial Reconsideration of Findings and Order Dated January 20, 2012

❡ Chris Bray comments on the movement: Nom nom nom

Tomorrow, January 24th, Judge Young will be holding a hearing regarding Moloney and McIntyre’s Complaint and the Department of Justices’s Motion to Dismiss. Former Belfast Project Lead Researcher Anthony McIntyre’s wife, Carrie Twomey, will be in attendance. Dr. McIntyre’s wife and their two children are all American citizens and Ms Twomey has been in Washington DC this week raising her concerns for the safety of her family. The Irish American Unity Conference, the Brehon Society and the Ancient Order of Hibernians will hold a press conference after the hearing which is being held at Boston College.

“In attendance will be Ned McGinley, former National President of the AOH representing Seamus Boyle current National President; Jim Cullen representing Robert Dunne, President of the Brehon Law Society, and Michael J. Cummings representing Thomas Burke, President of the Irish American Unity Conference.
This coalition of Irish-American groups has been joined by journalists, historians involved in Oral History projects, law professors, and human and civil rights activists in protesting this politically motivated fishing expedition which it is feared will destabilize a peace process that is only beginning to take root in the North.
Moreover it is believed that it would be unconscionable forAttorney General Holder to respond to this British request in light of Prime Minister Cameron’s refusal to hold a promised public inquiry into the murder of attorney Patrick Finucane (a murder in which he admits the government collaborated) and the refusal of the Prime Minister to respond to the Unanimous Declaration of Dail Eireann (Irish Parliament) for information on the Dublin Monaghan bombings.”

RADIO INTERVIEWS

MEDIA

❡ JANUARY 14 – 23, 2012:


NEWS

The leader of Fianna Fáil, Micheál Martin, has questioned whether the IICD’s deposit of the politically sensitive decommissioning documents at the Burns Library in Boston College will be protected by the embargo promised by Boston College.

“What is of major concern is that these papers have been given to an institution outside the island of Ireland which is now involved in a major controversy about protecting the integrity of its sealed archive.”
“[…] the fact that there is a question mark over the ability of Boston College to protect sensitive political papers in their archives from premature release is an issue of real concern.”

Boston College, for its part, believes that the British and Irish governments will not attempt to access the documents:

In a statement to the BBC, Boston College said: “There is no conceivable reason why the British or Irish governments, which set the terms for the International Independent Commission on Decommissioning (IICD) papers when they were sent to the college, would break those terms.”

However, it must be remembered that, prior to being served with a subpoena from the US Department of Justice, Boston College could not imagine a conceivable reason why the British or Irish governments would attempt to access the Belfast Project archives, either. And, to add insult to injury, when questioned about the possibility of a the British Government using the US Department of Justice to issue a second subpoena seeking broader access to the full archive, Boston College believed that it was unlikely to happen.

“I continue to hold out the hope that the verbal assurances I have received from practiced lawyers that any further incursions into our archive by British authorities could only happen if there were further voluntary admissions by participants themselves.” Professor Thomas Hachey, responding to Project Director Ed Moloney’s concerns about the possibility of a second subpoena

Yet a second subpoena did arrive and Boston College has since given the archive to the US Court. Its handover to British authorities is currently being contested by the project director and researcher – not by Boston College. So if the decommissioning archives were sought by anyone – not necessarily the British or Irish Governments – Boston College’s ability, and willingness, to keep them secure is dubious, as dubious as Boston College’s understanding of the risk posed to their embargos.

BACKGROUND

“The transcripts of interviews with Irish Republican Army and Ulster Volunteer Force veterans, most of whom were operationally active, are housed at the University’s Burns Library and are subject to prescriptive limitations governing access. Boston College is contractually committed to sequestering the taped transcriptions unless otherwise given a full release, in writing, by the interviewees, or until the demise of the latter.”
“Boston College has had a long interest in Ireland and offered a welcoming and neutral venue in which participants felt a sense of security and confidentiality that made it possible for them to be candid and forthcoming.” – Professor Thomas Hachey and Robert O’Neill, director of the John J. Burns Library, Preface to Voices From the Grave.

MUST READ

Chris Bray in the Irish Times:

MEDIA

❡ JANUARY 9 – 14, 2012:


9 January, 2012

COURT DOCUMENTS

❡ The US Government has filed a Consolidated Memorandum in Opposition to the Motion for Preliminary Injunction and in support of a Motion to Dismiss. Judge Young has set a hearing for January 24, 2012, to take place at Boston College.

MEDIA

❡ JANUARY 4 – 9, 2012:

TRANSCRIPTS ADDED TO ARCHIVE

❡  November, 2011: Irish Radio Network interview with Belfast Project Director Ed Moloney
❡  November, 2011: Radio interview with Irish advocacy groups, Michael Cummings, John Foley


3 January 2012

COURT AND BACKGROUND DOCUMENTS

MEDIA

❡ JANUARY 1 – 3, 2012:

❡ DECEMBER:


QUICK LINKS FOR NOVEMBER AND DECEMBER:

COURT DOCUMENTS

❡ Moloney and McIntyre file Appeal and Complaint for Judicial Review

MEDIA

❡ Key Articles:

SITE UPDATE

❡ Background on Threats to Researcher updated

FULL PRESS COVERAGE FOR DECEMBER AND NOVEMBER

❡ December
❡ November

19 October 2011

Political movement and background information feature in this week’s update.

POLITICAL MOVEMENT

❡ The Irish American lobby has held a series of meetings with political representatives, including Senator Kerry (D-MA).

In the Irish Echo, Attorney Tom Fox lays out the background surrounding the assurances secured in relation to the Good Friday Agreement, the 2003 Extradition Treaty and the MLAT, and its relevance to the subpoenas:

The Senate Foreign Relations Committee held a series of hearings on the subject. The Ancient Order of Hibernians, the Brehon Law Society, and the Irish American Unity Conference led the opposition to the new treaty.
On at least eight occasions during the hearings, the British Government and the U.S. Justice Department assured the Senate that pre-GFA offenses arising from the conflict in Northern Ireland would be off the table for extradition under the new treaty.
The Senate eventually ratified the 2003 Extradition Treaty in 2006. The Senate partially accepted Britain’s assurances about pre-GFA offenses being off the table, but felt compelled to incorporate those assurances into the treaty ratification, itself.
The whole story is laid out in Congressional Research Service Report for Congress, “Extradition Between the United States and Great Britain: The 2003 Treaty”.
The Mutual Legal Assistance Treaty (MLAT) and extradition treaty are closely connected. They were negotiated, signed, considered by the Senate, and ratified contemporaneously.

It appears that the Boston College subpoenas are the first time that Britain has sought U.S. subpoenas for offenses stemming from the conflict in Northern Ireland, ostensibly ended with the GFA 13 years ago.
When the MLAT was signed and approved by the U.S. Senate, there was no ostensible reason to believe that the MLAT would be used for subpoenas for pre-GFA offenses, especially in light of Britain’s assurances that pre-GFA offenses were off the table.

The Irish American Unity Conference (IAUC) appeals directly to Secretary of State Clinton:

“Release of the materials sought by the subpoenas would be contrary to the foreign policy and national security interests of the United States because they have a high potential for severely undermining the peace process which has been an important foreign policy objective of the United States for the past fifteen years. As you are aware, the United States, under the administration of President Clinton, was a principal architect of the Good Friday Agreement, or “GFA” (also known as the Belfast Agreement) signed in 1998 by the United Kingdom and the Republic of Ireland. The results of this historic agreement have been the establishment of stability and relative calm to the North of Ireland.”

“In sum, the information sought has a serious potential for destabilizing the peace process and, by extension, U.S. national security interests.”

❡ The AOH is also concerned about the implications of the subpoena:

According to Ned McGinley, a former national president of the Ancient Order of Hibernians, another group contesting the subpoena, releasing the documents could endanger the people interviewed.
“Those interviews are not evidence. They were not taken under oath,” McGinley said in a phone interview. The subpoenas are “really objectionable for three reasons. The principle reason being of course the subpoenas have nothing to do with foreign policy and national security of the United States. The release of those oral histories could endanger the lives of those who provided them.”

NEWS COVERAGE

Belfast Project Director Ed Moloney was interviewed by The Wild Geese. Moloney followed up this interview with a longer piece on his blog, The Broken Elbow, in which he discusses the Irish News interview with Dolours Price, which was passed to the Sunday Life tabloid paper. It is believed the contents of the Sunday Life publication led to the subpoena of the Boston College archive.

BACKGROUND INFORMATION

❡ The 2010 interview with Dolours Price conducted by Allison Morris of the Irish News is a central issue to the foundation of the subpoena. The first subpoena was served on 5th May, 2011, after proceedings were initiated on the US side at the end of March, 2011.

In the Motion to Quash the subpoena filed by Boston College on 7 June, 2011, Ed Moloney states in his affidavit:

31. In February 2010, I learned that Dolours Price had been interviewed about her life in the IRA by a Belfast morning daily newspaper called the Irish News. This report made no mention of the fact that she had been previously interviewed for the Belfast Project even though she had told this to the Irish News, but that fact was later published in the Sunday Life, a small Sunday newspaper in Belfast which had been made privy to the unpublished parts of her Irish News interview. The interview had been tape-recorded, I understand, by the Irish News and the tape passed on to the Sunday Life by the reporter for the Irish News who had interviewed Dolours Price. It was, to the best of my knowledge, the Irish News tape that the Sunday Life reporter referred to having heard and this was the source of their report that she had been interviewed by the Belfast Project. Neither newspaper could have heard her Belfast Project interviews because the only tapes and transcripts of those interviews are stored at the Burns Library at Boston College. I did not know about the Sunday Life story or the details of what it had published until recently. (Sec 31, page 10)

The US Government, in its Opposition to the Motion to Quash argues:

Ms. Price’s interviews by Boston College were the subject of news reports published in Northern Ireland in 2010, in which Ms. Price admitted her involvement in the murder and “disappearances” of at least four persons whom the IRA targeted: Jean McConville, Joe Lynskey, Seamus Wright, and Kevin McKee. See Exhibits 1 and 2. Moreover, according to one news report, the reporter was permitted to listen to portions of Ms. Price’s Boston College interviews. Id. (Page 4)

Boston College elaborates in its reply to the Government’s Opposition:

4. Dolours Price had no ability to, and did not, disclose tape-recordings of her Belfast Project interviews to a newspaper reporter.

To sow doubt whether Dolours Price in fact expected and relied on the confidentiality of her Belfast Project interviews, the Government mistakenly asserts that “according to one news report” a reporter has been “permitted [by Dolours Price] to listen to portions of Ms. Price’s Boston College interviews” (Gov. Op. at 4, citing Exs. 1 and 2 to the Government’s Opposition).

The Government’s sole support for this mistaken assertion is a news clipping (Exhibit 1 to the Government’s Opposition) of an article in the February 21, 2010, edition of Sunday Life, a small Belfast weekly newspaper (Moloney Affidavit (D. 5-5), ¶ 31). But that article does not say that the tape recordings heard by the reporter were from Dolours Price’s Belfast Project interviews. The Government assumes that the article’s report of the reporter hearing certain tape recordings of Dolours Price (Ex. 1, ¶¶ 3, 7, and 20) refers to the same tape recordings that the article later describes as Dolours Price’s “taped confessions of her role in the abductions to academics at Boston University [sic]” (id., ¶ 30). That assumption is wrong.

Anthony McIntyre, the person who interviewed Dolours Price for the Belfast Project, swears that neither Dolours Price nor any of the others he interviewed for the Belfast Project were provided the tape recordings of their interviews (McIntyre Affidavit (D. 5-4), ¶¶ 10 and 14). In his affidavit in support of Boston College’s Motion to Quash, the Director of the Belfast Project, Ed Moloney, explains that Dolours Price gave a tape-recorded interview to a reporter for a different newspaper, the Irish News, that the tapes of that interview were passed on to a reporter for Sunday Life, and that it is the tape recordings of Dolours Price’s interview with the Irish News that the Sunday Life reporter apparently was allowed to hear (Moloney Affidavit (D. 5-5), ¶ 31).

There is no evidence that Dolours Price has disclosed the tapes of her Belfast Project interviews to anyone. (Sec 4 page 6)

It is now understood that the PSNI approached Allison Morris of the Irish News in June, 2011, after the subpoena was served on Boston College and after Boston College’s Motion to Quash, including Moloney’s affidavit, was filed. Morris has written: “The Irish News was approached by the PSNI in June this year. The police were informed I had not retained any material in relation to my discussion with Ms Price and had nothing further to add to what had appeared in The Irish News in February 2010.”

The two publications are available to read in their original formats: Irish News and Sunday Life.


9 October 2011

The latest additions to the site this week focus on Court Changes, new filings, the Irish Presidential election, and a look at the documentary based on two of the Boston College tapes.

COURT CHANGES

❡ In an oddly timed move, occurring some 3 months since he was first assigned to the case, Judge Joseph L. Tauro has recused himself from the case. His son is a partner at the same firm representing Boston College. Why did this take 3 months to become an issue? And who requested he remove himself? Not even the judge knows; the submissions arguing for and against are sealed. He is replaced by Judge William G. Young. This is now the 3rd Judge the case has had since Judge Richard G. Stearns was added on 31 March. Stearns also lasted a little over 3 months – will Young go the distance?

COURT DOCUMENTS

❡ The US Attorney has filed a motion opposing the Intervenors motion to file a reply. Echoing Emperor Joseph II’s complaint of Mozart’s work from the movie Amadeus, “Too many notes!”, the government would prefer to see a speedy resolution involving less documentation.

“Having already filed 157 pages of pleadings and attachments with their initial motion [D.18], the putative intervenors now seek to file an additional pleading of unspecified length. [D.25] The grounds for their request essentially are that there are “substantial issues at stake” and “matters of first impression” at issue. [D.25 at 1-2]. The putative intervenors neither claim that the government’s response raises any new issues, nor that there are any issues which now need to be briefed of which they were not aware at the time they filed their initial brief. Allowing a reply memorandum would simply delay resolution of this matter, permit duplicative and unnecessary briefing in this case, and reward the putative intervenors for failing to state their complete case in their initial pleading.”

NEWS COVERAGE

Dublin’s Evening Herald raises the issue of the Boston College tapes in the context of the current Irish Presidential election. Martin McGuinness, well known as a senior member of the IRA with a history that goes back to the early 1970s, is running as an ‘independent’ candidate. He has temporarily stepped down from his post as Deputy First Minister in the Stormont Executive, a position he holds in his capacity as a Sinn Fein leader. Because of his involvement in the IRA, his bid to become President of Ireland means his past is being looked at with renewed interest. The Herald suggests the Boston College tapes could play a part in the election: “A US COURT could seriously hamper Martin McGuinness’ presidential hopes if it rules to release confidential IRA tapes to the PSNI.” Its headline suggests McGuinness could face questioning.

❡ David McKittrick, while not discussing the Boston College tapes, writes in the Irish Independent about McGuinness’ past and explores reasons why he is lying about it now. This link is included in our ‘News of Interest’ section, where recent stories covering issues relevant to the Boston College issue are noted.

BACKGROUND INFORMATION

❡ Two of the interview series contained in the Boston College archives were made into the book and documentary of the same name, Voices from the Grave. This award winning documentary was first aired in October, 2010, on the RTE network in Ireland. Based on the interviews with Brendan Hughes and David Ervine, the documentary’s power derived in part from being able to hear these two men speak. The documentary is now available online in 9 parts on YouTube: Voices from the Grave


3 October 2011

This week has seen more court filings and news coverage. Constitutional issues and threats to civil liberties feature.

COURT DOCUMENTS

❡ Following last week’s Government Opposition to Moloney and McIntyre’s Motion to Intervene, a Motion of Intervenors to File Reply has been lodged.

9. In their Motion for Leave to Intervene, the Intervenors seek to raise substantial questions with regard to their constitutional rights under the First and Fifth Amendments; the rights or obligations of both the U.S. and the U.K. under another bilateral agreement relating to the subject matter of the subpoenas; whether the request for assistance (a) would impair the essential interests of the United States (b) would be contrary to important public policy considerations of the United States; and, (c) is directed to an offense of a political character; whether the Government’s actions were arbitrary, capricious or an abuse of discretion, or otherwise not in accordance with law; and whether the request for assistance is unreasonable or oppressive contrary to F.R. Crim.P. 17(c)(2).10.

Note: all Court Documents are available on Boston College Subpoena News and added to the site as they are filed.

NEWS COVERAGE

❡ The Irish Echo has reported on Irish American groups coming together to support Boston College’s fight against the subpoenas:

“Leaders of the Ancient Order of Hibernians, Irish American Unity Conference and the Brehon Law Society have joined in protesting subpoenas of records and tapes held by the Burns Library archives of Boston College.
After a series of meetings, representatives of the groups agreed that not only were there valid legal arguments for opposition to the subpoenas, but also foreign policy and morals grounds for doing so.”

“Jim Cullen, spokesman for the Brehon Law Society, acknowledged in a statement that other Brehon lawyers and those designated by the AOH and IAUC, were in agreement that meetings with U.S. Senator John Kerry (D-MA), chairman of the Senate Foreign Relations Committee, and U. S. Representative Richard Neal (D-MA). chairman of the Ad Hoc Committee for Irish Affairs, and others would be undertaken in order to fight the release of any records to the British government “and/or whatever rogue or dissident elements of the PSNI” may have prompted the subpoenas.”

❡ Sandy Boyer, New York activist and host of WBAI’s Radio Free Eireann, looks over the case for the Socialist Worker. He highlights the dangers the US Attorney’s arguments have in regards to civil liberties:

Brian Rowan from the Belfast Telegraph has described why journalists, especially in Northern Ireland, need to be able to protect their sources: “If people want to read, listen to and watch the news, then they need to understand what gathering that news entails. That it involves going into dangerous situations. It means protecting sources in order to gather the best information to inform those who are reading, listening and watching.”
Ed Moloney, who directed the Boston project, told Radio Free Eireann that this case goes beyond Northern Ireland:

“This has huge implications for historians and journalists in America. It is going to make it far more difficult to get the stories of the actual people who participate in conflicts. If you are interviewing a Black activist from Brooklyn or the Bronx, you are going to be looking over your shoulder because the New York Police Department can come after it to put him in jail.”

Now there is an even more alarming threat to civil liberties. The latest Justice Department legal brief contends that not even the courts can review the attorney general’s decision in this case. It argues: “The determinations of the Attorney General challenged in this case are textually committed entirely to his discretion.”
It claims the courts have absolutely no role: “To recognize a right to judicial review of such determinations would entangle the courts in national policy decisions.”
If the courts accept this, it will mean that anytime a foreign government wants information, the attorney general, at his or her sole discretion, can force it to be handed over. It will become a political decision based entirely on U.S. foreign policy.

BACKGROUND INFORMATION

❡ Last May, the Brehon Society wrote to the Acting Director of the Public Prosecution Service, Northern Ireland, raising their concerns about the case and how it was being handled. Their concerns focused on the impact that the subpoena would have on the peace process and questioned the legal value of unsworn oral histories. The Brehon Society followed up this letter over the summer, meeting with the PSNI in Belfast:

“Former U.S. Army JAG Corps general, James Cullen, has presented the force with a letter of protest written by him and on behalf of the Brehon Law Society.

Cullen said he had been “frank” during a meeting with Chief Superintendent Alan Todd at PSNI headquarters in Knock. Cullen said that he had outlined the Brehon position as to why the force should refrain from seeking the Boston College archive material by means of a subpoena issued by the U.S. Attorney’s Office in Boston.

“Americans can be known for their frankness, and I was exactly that with Chief Superintendent Todd about the feelings of the Brehon Society, and Irish America in general, over this issue,” Cullen said.
“Have the PSNI really considered the impact that seeking to access these tapes will have? People are beginning to ask is this a legacy of the old RUC creeping back?
“The subpoena will make those in universities who wish to conduct valuable research into the conflict here, research that can even aid peace and reconciliation, impossible,” he said.”


25 September 2011

Court documents, analysis and background information are new to the site this week.

COURT DOCUMENTS

❡ The Government filed their opposition to Moloney and McIntyre’s Motion to Intervene (& Complaint).

ANALYSIS

❡ Chris Bray: “Where the Fourth Amendment Goes to Die”

The implications of this argument are extraordinary. If it’s correct… Okay, let me start over again: If it prevails, then once the DOJ agrees to a foreign request, you have fewer rights against legal proceedings requested by foreign governments than you do in legal proceedings undertaken solely by your own government. If the British want your documents, and the DOJ says yes, that’s it.
So the premise here is that foreign governments have essentially unrestricted rights to obtain legal evidence in the U.S., subject only to the discretion of Eric Holder, and the courts and those subject to search and seizure have no avenue by which they can restrict the performance of the searches and seizure in question. I know I’m saying the same thing over and over again in different words. I mean to.
If it succeeds, this argument is the death of the Fourth Amendment — the death of it, period — in legal matters originating with foreign governments.

BACKGROUND INFORMATION

❡ The Jean McConville Investigation:


18 September 2011

Background information, news coverage and a little history feature in the latest updates to the site.

HISTORY

❡ Fearghal McGarry’s book, Rebels: Voices from the Easter Rising, based on the oral histories gathered by the Bureau of Military History, was reviewed in the Irish Times this week. It was these records that Boston College’s Belfast Project modelled itself after: History Remembered by the People Who Were There

BACKGROUND INFORMATION

A number of pages have been added to the Background section, including:

❡ Who was Brendan Hughes? His interviews for the Belfast Project were one of the archives sought under the first subpoena served to the Burns Library. After his death in 2008, which lifted the terms of the confidentiality agreement, the book and documentary, Voices from the Grave, were published. In April, 2011, the Family and Friends of Brendan Hughes held their first annual Brendan Hughes Debate and Discussion at the historic Conway Mill in West Belfast. They asked lead researcher for the Belfast Project, Anthony McIntyre, to deliver the inaugural lecture. Brendan Hughes: A Life in Themes

❡ At the end of March, 2011, the Burns Library was chosen to house the papers of the IICD, a body set up by the British, Irish and US governments to disarm the IRA and other paramilitary groups. Confidentiality was, and remains, a key part of their ability to decommission paramilitary weapons. In May, 2011, a month after the IICD’s embargoed papers were deposited at Boston College, the US Attorney served the first subpoena on behalf of the British Government seeking access to the library’s confidential oral history archives. Final Report of the Independent International Commission on Decommissioning

“We have not included with this report copies of correspondence sent to the Commission by private individuals as these might be subject to privacy considerations. Also as directed by Ref. D, we consulted with the Northern Ireland political parties at the outset of our mandate and received from them papers setting out their views on decommissioning. These were provided in confidence and along with the private correspondence they will be deposited with our files for safekeeping by Boston College, Massachusetts, USA, subject to an embargo on their disclosure for thirty years.”

❡ The Independent Commission for the Location of Victims’ Remains expressed concerns over the impact the Boston College subpoena is having on their work. Background on the Commission and details of their issues: Concerns Expressed by the Independent Commission for the Location of Victims’ Remains

“… the police efforts to use the Boston College archive in a criminal investigation could, he said, deter others from helping the commission.
“We’ve had some concerns expressed to us, very serious concerns, by intermediaries and others who we deal with on a day-to-day basis,” he said.
“They have flagged this up. We were concerned about it, they too have flagged it up, without any prompting from us.
“And we appreciate that this will put people off, or potentially put people off, from contacting us with information. But it’s our lifeblood. It’s what we survive on.”
He added: “If it’s putting them off, we need to make it absolutely clear that it’s not the way we do things.
“We appeal for information always. We don’t adopt the sort of approaches that are clearly being adopted here. It’s not what we would do.”
Mr Knupfer said he was unaware if any cases had already been adversely affected by the issue.
But he said losing contact with potential sources of information could endanger the chances of securing closure for the families of the remaining Disappeared.
“Of course it might. The whole ethos of this is information. It’s based on information and if the information isn’t available, then sadly we can’t do an awful lot to resolve the heartache of the families concerned.”
The commission investigator said he had no reason to believe Boston College held information which may be of help to his work.”

NEWS COVERAGE

A number of articles gave coverage to the case in the news media this week:

❡ On Monday, the New York Times featured the Boston College case as a teaching example for their Learning Network in Historic Headlines – key events and their connections to today. Students are asked:

“Do you believe that those who committed crimes in the past should be granted amnesty or anonymity for their testimony under certain circumstances? Why or why not? How do you think a country or group of people can most effectively address past injustices to lay the foundation for a more just future?”

❡ The Irish Emigrant on Tuesday did a comprehensive overview of where the case is currently: Boston College IRA tapes: Researchers seek separate review

❡ Noted historian and author Terry Golway wrote a strong piece for the Irish Echo on why Boston College should fight to protect its archive: Boston College Should Stand Its Ground

“There’s no reason why the U.S. has to be party to this investigation. Boston College is right to resist the demands of both the Justice Department and the PSNI. After all, if Washington and London can keep secrets in the interests of peace or public order, or whatever other reason they might have, an academic institution has a right and a responsibility to keep confidential files confidential.”

❡ Private Eye in the UK is on the case: Boston Strangled

“The Eye has also learnt that the subpoenas are based on a false claim that one of the interviews with Price, published in the Sunday Life newspaper in February last year, was based on an interview with the Boston College project – suggesting it had already put recordings in the public domain. That is not true; and no doubt the college will hope that this fundamental flaw in the legal process could lead to the quashing of the subpoenas.”

❡ The week ended with Radio Free Eireann, broadcasting on WBAI out of New York, devoting Saturday’s show to an examination of the case, interviewing Belfast Project Director Ed Moloney, Lead Researcher Anthony McIntyre and their lawyer, Eamonn Dornan. The program can be downloaded as an MP3 file here – right click, save as: http://archive.wbai.org/files/mp3/wbai_110917_130046rfeireann.mp3