Derry writers speak at conference Derry Journal
Published on Monday 9 April 2012 11:16
Several respected and renowned Derry theatre practitioners addressed the recent ‘‘Nine Tenths Under; Performing the Peace’, arts and peace-building conference at the Brian Friel Theate, Belfast.
Key note speaker at the conference, which was co-organised by the ICAN project, The Playhouse and Queen’s University school of performing arts, was journalist Ed Maloney.
In addition to the Irish speakers, the Playhouse brought artists and practitioners from post conflict and conflict societies together from as far away as the Aparat Theatre Company, Sarajevo and Afghanistan.
Elaine Forde ICAN co-ordinator said: “The conference ignited conversations around how the Arts can benefit post conflict societies. It was great to see people exchange ideas, talk about new methods applicable to local and international issues.”
The conference screened: ‘The Far Side of Revenge’, a documentary film by Derry producer and director Margo Harkin.
The movie was made in partnership engagement with The Playhouse, Theatre of Witness project.
Other esteemed contributors to the conference included playwrights Dave Duggan and Owen McCafferty and Jane Taylor of the University of Chicago and University of The Western Cape.
Keynote speaker Ed Maloney addressed a special panel chaired by filmmaker Declan Keeney, including University of Ulster’s Cahal McLaughlin of The Prison Memory Archive, filmmaker Alison Millar, and Claire Hackett, from the Healing Through Remembering project and Falls Community Council’s oral history archive, Dúchas.
In his speech Maloney said that many involved have been put at risk by Boston College’s response to the legal battle surrounding ‘The Boston College Project. ‘
“People could well be killed. My researcher is at risk and so are the people he interviewed.
“All are at risk of being treated as informers by their former comrades” Maloney said.
“Some could end up in jail or at least face the possibility of criminal charges.
“When Boston College undertook this project they gave us and the interviewees a solemn promise that their confidentiality would be protected until death.
“Now some of them face the possibility of death and the betrayal of their confidentiality.
“Shame on them.”
He said this would not be the only consequence of the legal action.
“This conference has as its inspiration the idea that history is rather like an iceberg, only one-tenth is visible while the vast bulk remains unseen and unheard. So where do we usually get that one-tenth of history from?” he said.
“In the end the most insidious aspect of the HET [Historical Enquiries Team]/PSNI offensive against the Boston College is that it will effectively close down any effort to tell the story of the Troubles from the point of view of the foot soldiers”.
“In that sense the HET is staking a claim on behalf of two groups that only they will be permitted to tell the story of the Troubles.
“One is the State through its security agencies and the other is the leaders who survived the war and now prosper in the peace.
“More than any other reason that is why their action, and the silence from those who should not be silent about this affair, should be condemned and resisted with all the force we can muster.”
Sandy Boyer (SB) interviews via telephone Ed Moloney (EM), the former Director of The Belfast Project who, along with Dr. Anthony McIntyre, is the plaintiff in an appeal to stop the British government subpoenas served on Boston College for confidential material from the project’s archive. Oral arguments were heard in that appeal last Wednesday in The First Circuit Court of Appeal in Boston.
Sandy Boyer (SB): Welcome back to Radio Free Eireann, WBAI 99.5 FM in New York.
We’re talking about The Belfast Project, the Oral History project which looks at the history of what’s called The Troubles from a different point of view: from the bottom up. Instead of the politicians and “the official” history, this was a history from the point of view of the people who were doing the fighting in the IRA and the Ulster Volunteer Force.
And we have on the line with us Ed Moloney, who was the Director of The Belfast Project. Ed, thanks very much for being with us.
Ed Moloney (EM): No problem, Sandy.
SB: So Ed, in a very bizarre turn of events, the American government acting on behalf of the British, are trying to get turned over to the British government some of your interviews. Now that was just argued in federal at the First Circuit Court of Appeals. Can you tell us a little about that?
EM: Yes. The attempt by the British government which is actually really, I think, some elements inside the PSNI, the new policing system in the North of Ireland, who are really behind this.
The effort to get hold of these interviews was initially challenged by Boston College. When the lower court ruled against Boston College and said that the interviews could and should be handed over, myself and Anthony McIntyre, who had basically broken with Boston College over their whole approach to this business and also issues of bad faith, we had been attempting to establish own our right to separate representation in the court case.
That was also turned down by the same judge, a character called William Young, who some people might remember as the guy who sentenced “The Shoe Bomber”, Richard Reid, a few years back.
So we were turned down and we took an appeal to the First Circuit there in Massachusetts. That’s what the hearing was about last week: was whether this decision to prevent us from intervening in this case should be overruled or not. Obviously, it’s an important development because if we lose then essentially…well, we do have the option of trying to take it to the Supreme Court. I think we probably will if we do lose it, but if we win it means that the whole case is re-opened and have to be sort of basically re-tried.
Which could be important because then we can bring to the case those elements which Boston College refused to introduce: such as the fact that these interviews, if they’re handed over, could materially damage the peace process in Northern Ireland, and that (the peace process) is a US foreign policy aim and that’s something that the court should protect.
That sort of thing was not part of Boston College’s effort.
SB: And Ed, on Wednesday when this was argued in Boston in The First Circuit Court of Appeals, you had an Assistant US Attorney in effect, arguing on behalf of the British government!
EM: Yes. Yes, you did. Yes.
There is a treaty between the British and the Americans called the Mutual Legal Assistance Treaty, which they use to get evidence and documents and what have you from each others jurisdictions to assist their various police forces.
Now that’s happening in this case even though that there is no actual criminal prosecution underway. It’s just a fishing expedition if you like, by the PSNI.
They have no idea really, what’s in these interviews, whether they’re relevant and nevertheless the US are backing that.
Now what is happening in the background, of course, is that thanks to the assistance of a great many people in Irish-America, and I’d like to take this opportunity to convey my deep gratitude to Irish-American because they have come up in trumps on this.
Thanks to people like The Brehon Law Society and The AOH (Ancient Order of Hibernians) we’ve been able to mobilise a considerable amount of political support. We have three US Senators who have written to both Eric Holder, the Attorney General, and Hillary Clinton, the Secretary of State, urging that they intervene with the British and persuade them to drop these subpoenas on the grounds that it will damage US foreign policy.
Both Senators Kerry and Schumer of the Democratic Party and Brown in MA and we’ve got a growing number of members of Congress in the House of Representatives who have sent letters as well.
There’s (been) a great amount of media coverage and people are very aware of this case and they are very aware, now, of why this shouldn’t be happening.
And there are three grounds on which we are objecting to this: One is that is real target, we believe, of this effort by the PSNI is coming from, we strongly suspect, we don’t have cast iron evidence but we strongly suspect, that there are old RUC/Special Branch elements within the PSNI who see this and know full well where this story will end up – it will end up at the door of Gerry Adams and this gives them an opportunity to exact some sort of revenge for the peace process, changes in policing, and so on and so forth.
So we’re saying this is really not a bona fide police investigation. It’s a pretext to cause political damage and that political damage will also affect the peace process.
Secondly, we’re saying that the people involved in this project, particularly the researcher, Anthony McIntyre, but also those who were interviewed whose names will become public or could become public, will be in mortal danger on the grounds that there would be elements within the Republican Movement who would regard them as being informers.
And then thirdly and by no means last or insignificantly, is the huge damage that will be done to the whole body of historical research that depends upon people coming forward and telling stories and telling the truth about what happened in various situations.
And that applies, particularly applies, in the United States where it will have direct effect upon Oral History here. For example, one case study is that of what happened in the Iraq War or the Afghanistan War.
Oral Historians will now be discouraged from going around interviewing people who were in the Armed Forces and ask them what happened because if they told stories which involves, what are allegedly criminal matters, these interviews could then be confiscated and there’s a whole range of areas of social and political life which would be “off-limits” to American researchers.
And it’s also going to kill-off any real effort to get to a sort of a truth recovery or truth telling process in Northern Ireland.
And that means that the monopoly of the story about what happened in The Troubles will now, thanks to this measure, will rest basically in the hands of the PSNI. And that’s wrong!
I actually think it’s immoral as well because the policing system, the PSNI or the RUC, were actually part of the problem, part of the reasons why we had The Troubles in Northern Ireland for such a long period of time.
And the idea that they should have the monopoly on telling the story, which is what they’re actually doing here, they’re saying that no one else is allowed to investigate the past except themselves, is deplorable.
And it’s as deplorable as if the job of chronicling of what took place was handed over to the Provisional Movement or to the Ulster Unionist Party or the DUP or the UVF.
People would immediately object to those on the grounds that you can’t trust the participants to tell the truth.
But the PSNI and their predecessor, the RUC, are participants in this story. They should not be allowed to take over control of telling this story; that should be left in the hands of academics and journalists and also the people themselves who were involved.
SB: We’re talking to Ed Moloney, Director of The Boston (Belfast) Project. We’re talking about a hearing that took place on Wednesday before a three judge panel in the Court of Appeals. And you had this Assistant US Attorney saying all these interviews should be handed over to the British government.
What reasons did she give and how was she received by the judges?
EM: The argument that is again, that has been presented to counter our effort to be involved in our own right in the case, is that Boston College adequately represented our interest.
Now, not everyone is aware of all the fine details of the relationship between ourselves and Boston College throughout this affair.
But to sufficient to say the only reason we’re in court at all is because I found out about the subpoenas and I told The New York Times.
Otherwise I think Boston College would have handed these interviews over without any sort of court fight at all.
And that sort of attitude has characterised the Boston College side of this affair from day one. It was one of the reasons why we sought separate legal representation and also sought to get involved in the case in own our right.
So the idea that Boston College adequately represented our interests would be laughable if it wasn’t so serious.
Now funnily enough, that’s the argument of course that the US Assistant Attorney made at the court case, and that led to a quite significant event or incident when one of the judges provoked laughter in the court room when he said “Well, isn’t it a wee bit odd that Boston College aren’t here appealing the lower court’s decision? If they are supposed to be representing these two men why aren’t they here with them?”
And of course, the answer there is quite obvious: Boston College dropped their appeal. They didn’t even follow-up on appeal after they lost in the lower court. We’re the ones who are trying to fight on.
And you can’t have more eloquent evidence that they don’t represent our interest at all, never mind adequately, than that.
And that seems to have been appreciated by the court.
Also, there was some very good questioning and awareness of the very real dangers that do exist to those who participated in the project; that their life could be at risk.
Our attorney, Eamonn Dornan, who did a fantastic job on Wednesday, raised the case of Suzanne Breen, a journalist in Belfast, who the police, the same police force who seems to be addicted to getting into the filing cabinets of journalists, went after her as well because of an interview that she had been given by The Real IRA over a violent incident in Northern Ireland.
They were trying to get her to divulge the name and the record of the conversation and she refused to do so. She successfully won that case on the basis that the European Convention protects a person’s life in these circumstances and her life would be in danger.
And that’s an argument that Eamonn Dornan raised in the hearing on Wednesday and that seemed to have some sort of effect on the judges as well.
The US Attorney on the other hand was saying well, any Constitutional protection does not apply in this case because the guy who’s principally at risk, Anthony McIntyre, is not a US citizen.
And essentially what she’s saying is that US courts can take decisions here that will lead to the deaths of people elsewhere in the world and basically we don’t give a damn. That’s what she’s saying.
SB: Ed, thank you very much. And just before we let you go…they reserved judgment, I believe. Do you have any idea when this judgment might come down?
EM: No. No, absolutely no idea when it will happen. It could be two weeks it could be two months. We just don’t know. It’s like the papal elections- you wait until the white smoke comes out of the chimney and then you know.
SB: Ed, thank you very much and I’m sure we’ll have you back here at least when there’s a decision.
In the matter of the subpoenas served on Boston College for material from The Belfast Project.
Assistant US Attorney Barbara Healy-Smith (BS) presents oral argument on behalf of the defendants in the appeal brought by Ed Moloney and Dr. Anthony McIntyre concerning the subpoena to Boston College for materials stored in archive there and known as The Belfast Project.
Legend: ED: Eamonn Dornan, counsel for Mr. Moloney and Dr. McIntyre, Judge Lynch: Chief Justice, the Honourable Sandra L. Lynch, Judge Torruella: the Honourable Juan Torruella and Judge Boudin: the Honourable Michael Boudin.
Barbara Healy-Smith (BS): Good Morning.
Judge Lynch: Good Morning.
BS: May it please the court, Barbara Healy-Smith for the defendants.
The issue here is much narrower than the appellants have presented it. And it’s important at the outset to just separate the two requests the appellants made on their Motion to Intervene in the District Court in the proceeding in which Boston College sought to quash the subpoena.
But the punitive intervenors said: we agree with Boston College as we have the same argument as Boston College has presented as to the chilling effect on Oral History projects and the confidentiality of sources but we want to broaden that proceeding.
In the complaint they attached to their Rule 24 Motion, they sought to bring claims against the Attorney General that would have had the District Court enquire into the process the Attorney General followed in deciding to provide the legal assistance requested.
To weigh whether the Attorney General consulted with people he was supposed to consult with or considered, gave weight to, certain policy and political considerations.
The District Court said the MLAT expressly precludes an action to ostensibly enforce its terms; there is no private right and so you cannot bring that complaint.
And as to any legally cognisable, legally protectable interest you might have, Boston College is adequately representing that.
The question is: was that an abuse of discretion under Rule 24? And we…
(Judge Lynch interrupts)
Judge Lynch: Ms Smith, it would help me if you would actually frame your argument not in terms of the intervention but in terms of the original action that these individuals brought because it does not necessarily follow from a non-intervention that they didn’t have a right to file their own action.
Now I understand your argument to be that the treaty itself precludes a cause of action; that then leaves the Constitutional claims.
The Constitutional claims are sounded under the first amendment and under the fifth amendment due process clause.
We have just heard from Mr. Dornan about the high personal stakes which his clients feel that they have – that they would be put at personal risk here. One of the arguments you make is that they have no standing.
Let’s just assume hypothetically, that that degree of risk and the chilling effect, if you will, arguably gives them standing.
What are your arguments under the first amendment here?
BS: Not as to the personal safety but as to the first amendment?
Judge Lynch: That’s right.
BS: Under Branzburg: there is not a recognised privilege that would protect someone from giving evidence absent a strong counter bearing interest; constitutional, common law or statutory privilege.
The first amendment privilege asserted here is an academic privilege of an Oral Historian doing research that is claimed to be akin to that of a reporter: I promise my source I’m not gonna reveal your name, I’m not gonna tell anybody where I got this information.
In fact, first of all, that was Boston College’s promise. They required that confidentiality be maintained….
Judge Lynch: Frankly, that seems to go to the standing issue as opposed to the merits of the first amendment claim. It may be primarily Boston College’s claim but they claim they also will be injured under both the the first and fifth amendment by this.
BS: I would submit Mr. Moloney’s lengthy affidavit has a scant mention of a chilling effect on Oral History projects and no one’s…
Judge Lynch: I’ve asked you to make some assumptions, arguendo, and then get to…please.
BS: So If I understand your question, what you…
Judge Lynch: And assume they have a sufficient interest in this action to raise the Constitutional claims, just hypothetically assume that.
What is your response as to why there are no Constitutional claims that can be plausibly stated here?
BS: Well, because there is not one that would override the purpose underlying the treaty between two sovereign nations.
There is, in just in the criminal context, there’s no right for a third party to come in and say: “I’m gonna block the giving of evidence that might implicate me”, unless it’s one’s personal fifth amendment privilege; but the first amendment doesn’t do that. It doesn’t provide that right for reporters and it doesn’t provide that right for academics. The…
Judge Boudin: My recollections of the cases, that are now rather old and I’ll go back and read them, is while the Supreme Court doesn’t seem to recognise in practice this first amendment right for reporters. It keeps saying things like “Well, it might depend on the circumstances.”
Do I mis-remember?
BS: To the extent that is the case, Judge Young gave weight to that.
That in fact, if the court gets there, Judge Young took into account all of the first amendment claims that were brought by BC which encompassed the same first amendment claims that Mr. Moloney and Mr. McIntyre were….
Judge Boudin: It’s just that I’d like an answer to Judge Lynch, that if we assume, somehow, they were in the case and they could raise these arguments themselves.
They got all the weight to which they’re substantively entitled and they lost: is that your position, in effect? And should have lost?
BS: Yes! If you get that far, yes.
Judge Boudin: It’s a little odd to be hearing about how well Boston College represents these interests when they’re not (scoffs) seeking to appeal the order to turn over the documents.
Judge Boudin: And then you say, assuming they had serious first amendment interests, somehow those would disappear because the statute doesn’t, or the treaty doesn’t allow them to be raised.
If those interests really existed, you’d think there would be some way to have them protected regardless of what the treaty said, wouldn’t you?
BS: To have them taken into account?
Judge Boudin: If they’re taken into account and respected to the extent that whatever reservations the Supreme Court has made, quite unclear since it doesn’t exercise that authority in the existing cases, to refuse…to allow the piercing of alleged privilege. Whether or not that’s a correct resolution.
BS: But we found no precedent where a third party has the ability to insert into a proceeding in the course of a legitimate and serious, this is a murder investigation, but it might be terrorism, it might be genocide, and to say that could be protected merely by a criminal confessing to an academic in an Oral History project the world will never get that evidence and that…
Judge Lynch: Are you arguing then that this is a per say rule that it is “never” when it involves a criminal prosecution? There is never any possibility of an academic privilege? Your Brother (Ed. Note: MA term for opposing counsel. Here it refers to Eamonn Dornan) suggests this is a balancing of interest.
It’s not clear to me whether you are arguing that there is an automatic rule that the first amendment can never trump a criminal prosecution.
Or whether you are saying in most cases a criminal prosecution is a sufficiently legitimate government interest to override in any first amendment claim being made.
BS: We’re certainly saying that here there was nothing than could trump that. And also saying that in most cases it wouldn’t.
I can’t think of where it would, um….
Judge Torruella: Why isn’t the plain language of Rule 24 applicable here?
Where it says: “when the applicant claims an interest relating to property or transaction, which is the subject of the action and the applicant is so situated that the disposition of the action made, as a practical matter, would bear to impede on that applicant’s ability to protect that interest.”
The interest here being their safety.
BS: If we’re going back to the Motion to Intervene…
Judge Torruella: Isn’t that’s what’s before us here?
(Judges speak to each other)
Judge Lynch: Both.
Judge Torruella: Oh. Well anyway, that one is the one I’m interested in.
BS: The test is, that is one of the prongs for intervention under Rule 24, A 2; one of the three things to be demonstrated. We argued below they did not have such an interest because there’s not a recognised privilege to….
Judge Torruella: There’s not a privilege to safety?
BS: That would be under the fifth amendment. The….
Judge Torruella: Right.
BS: The issue there is Mr Moloney, who is here and a US citizen, asserted no risk to his personal safety. The personal safety of Mr. McIntyre….our constitution does not protect non-citizens outside of the country from unnamed third parties who might bring them harm as a result of testimony…
Judge Lynch: Actually, I took a look at the cases which the government brief cited and it seems to me almost all of them apply in the immigration context and have to do with plenary Congressional power over who enters the country.
This case is a little bit different.
I found no case that established the sort of Absolute Rule that your briefing suggested the case law established.
Judge Torruella: In fact, vis-a-vis, you seem to put it in some doubt.
BS: I think in most cases the concern is government action. There’s no assertion that our government or another government is going to torture people as….
Judge Torruella: No, but they’re claiming that the actions of our government are going to put them at risk.
Judge Torruella: And they’re claiming, and this is what I’d like to get to at some point, they’re claiming that that interest they have in their personal safety is not being properly protected by Boston College.
BS: The personal safety issue was certainly asserted by Boston College. The assertion is: that should the information be turned over that ultimately that will become known to unidentified persons who would then do harm.
The fact of The Belfast Project and Mr. McIntyre’s participation in that has been known for a while; there’s been news coverage and indeed a book published and various interviews, so that’s…
Judge Lynch: That’s an argument he’s already put himself in harm’s way.
And he argues, or his pleadings say: yes, but you haven’t seen anything yet. If this information becomes public the risk to me and my family becomes much greater.
It strikes me that the intervention question might be a bit of a sideshow if in fact it is clear, as a matter of law, that there is no first amendment interest sufficient to outweigh the government’s interest in complying with the treaty and in assisting a fellow sovereign under the treaty in a criminal prosecution, criminal investigation and prosecution.
So if I could get you to return to that point?
BS: I think there isn’t.
There is not a first amendment privilege that could be asserted by a third party who is not the holder of information to expose, impede, a proceeding to get evidence pursuant to a request for assistance…
Judge Lynch: That sounds like you think Boston College could assert such a claim but that these people cannot.
BS: That is correct.
Judge Lynch: And so the fact that Boston College has chosen to absent itself and not to appeal is dispositive of the arguments here?
BS: Well, I…
Judge Lynch: Let me go back. Just assume hypothetically, that Boston College was here. Wouldn’t you also be arguing that there is no first amendment claim?
BS: We would be arguing that the District Court appropriately declined to quash the subpoena. I mean, the District Court, as we argued in our brief, weighed more than the government, went farther than the government even thought it should under the MLAT. There’s a very narrow enquiry…
Judge Lynch: No. We’re not under the MLAT. We are under (scoffs) the federal Constitution.
BS: Well then the Branzburg principles: is this an exercise intended to harass someone? Is it a legitimate public enquiry, or excuse me, a legitimate investigation? Which would, taken into account here, would apply and we would be arguing that Boston College should not made a showing that would have outweighed that.
Judge Lynch: Okay.
BS: As we argued, we believed that the intervention issues were dispositive but should the court…look largely… because that was the point at which the appellants would have had the most rights in the proceeding which Boston College brought, that the United States had instituted essentially, to quash the subpoena. And that when the court determined they didn’t have the right under the MLAT to bring the claims against the Attorney General under the APA similarly, he appropriately decided that a separate, independent action, which was really a way of getting the court to reconsider a decision it had made earlier, was likewise sound. So that both the denial of intervention and the dismissal of the separate civil case were correct.
Judge Lynch: Thank you.
Eamonn Dornan (ED): There’s nothing further in rebuttal.
Judge, we’re in the hands of the court. Unless the court has any questions?
Judge Lynch: Oh! Counsel, bless you! (all laugh)
Thank you very much. It was a very useful argument and the court is in recess.
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.
BOSTON — The oral history project at Boston College that sought stories of former participants in the paramilitary violence in Northern Ireland has landed in the lap of the Federal Appeals Court in Boston.
And it has come with a dramatic warning.
The Irish journalist who directs the project and its lead researcher want to prevent the release of confidential interviews to British police.
Their attorney warns that releasing those tapes would put people at risk of retaliation and even murder.
David Boeri reports from Boston, MA about the appeal filed by former The Belfast Project Director Ed Moloney and the researchers involved in the project concerning the lower court’s order to turn over confidential interviews from former combatants in The Troubles.
In this report, with the exception of Carrie Twomey, (CT) all quotes in this report are taken from the recording of the hearing held yesterday in the First Circuit Court of Appeals in Boston, MA.
Legend: Reporter David Boeri (DB)
Appellants Moloney and McIntyre’s attorney, Eamonn Dornan (ED)
US Assistant Attorney Barbara Healy Smith (BS)
and Appeals Court Judges, the Honourable Juan Torruella and the Honourable Michael Boudin.
Announcer: The fate of the Northern Ireland Oral History collection at Boston College has landed in the lap of the federal appeals court in Boston. The Irish journalist who directed the project and it’s lead researcher, want to prevent the release of confidential interviews to British police. Their attorney warns that releasing the tapes would put the people who did the interviews at risk of retaliation. WBUR’s David Boeri has the story.
David Boeri (DB): The stakes couldn’t be higher. Project Director Ed Moloney and his Lead Researcher, Anthony McIntyre, who’s wife Carrie Twomey, spoke for him outside the courthouse.
Carrie Twomey (CT): This was about lives! This is not just the papers in the library. This is my life, my children’s lives, my husband’s life, all of the people that bravely participated in this project, are at risk.
DB: At risk, Twomey says, because of the effort by the United States on behalf of the British government and its Mutual Assistance Treaty to turn over some of those Oral Histories to police in Northern Ireland who are probing a murder there by the IRA in 1972. But in a culture, history and conflict riddled with and haunted by informants, to be called a tout, or informant, or to reveal confidences promised for life, as the Oral History Project promised, is to be marked.
Attorney Eamonn Dornan is representing Moloney and McIntyre.
Eamonn Dornan (ED): 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.
DB: McIntyre himself was absent. After being convicted of murder and serving eighteen years in prison, the former IRA Volunteer is not allowed to enter the United States. His authenticity as an academic has gone unquestioned, however.
In any event, he and Moloney, the Director of the Oral History Project, were denied standing in the case by the judge, William Young. Young ruled last Winter that their interests would be adequately protected by Boston College, where the project is based. Eamonn Dornan:
ED: We’ve said all along that our interests are of a much higher stake than those of Boston College. Boston College has institutional interests.
DB: Whereas his clients, Attorney Dornan said, have interests in protecting the confidentiality and the lives of those on both sides of The Troubles who told their stories. When Judge Young last January ordered Boston College to turn over those archival interviews and BC chose not to appeal, the school was accused of betrayal and cowardice; of being chickens instead of eagles in defending academic freedom in its own project. One of the Appeals Judges, Michael Boudin, had this to say about BC at yesterday’s hearing:
Judge Boudin: It’s a little odd to be hearing how well Boston College represents these interests (scoffs) if they’re not seeking to appeal the order to turn over the documents!
DB: In opposition to the appeal, the government attorney, who restricted her statements to the court room, argued that any First Amendment rights in this case are trumped by the criminal investigation. She also argued that the US has a treaty obligation to assist Britain.
Assistant US Attorney Barbara Healy Smith downplayed the possible danger to people in the Oral History Project or their privilege:
Barbara Healy Smith (BS): Our constitution does not protect non-citizens outside of the country from unnamed third parties who might bring them harm as a result of testimony.
DB: Which is to say those in Northern Ireland who talked on condition of confidence until death have no expectation of protection by a US court ordering academics to turn over the confidential interviews to British police. Now came push-back from Judge Torruella:
Judge Torruella: But they’re claiming that the actions of our government are going to put them at risk.
DB: The court is expected to rule within the next three months. This Friday is the fourteenth anniversary of the Good Friday Agreement which brought peace to Northern Ireland. A peace that the experience of the Oral History Project suggests is still fragile. For 90.9 WBUR, I’m David Boeri.
The Honorable Eric Holder
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 to convey my concerns about the on-going efforts of the United Kingdom to obtain materials relating to sensitive events that occurred in Northern Ireland over 30 years ago. As you know, the British Government has invoked the United States – United Kingdom Mutual Legal Assistance Treaty (MLAT) to obtain these documents from Boston College. I believe that this action not only violates the sentiment behind the Good Friday Agreement, but could also have drastic consequences for the future of journalistic confidentiality and academic freedom.
I have strong concerns that multiple outlets have indicated that this request has a political nature with the explicit intent of causing unrest and impede the peace process in Northern Ireland. I believe that the release of these confidential documents could have a profound effect on further efforts towards peace in the region, and would do significant damage to the adherence of the Good Friday Agreement.
Moreover, the collection at Boston College, called the Belfast Project, was intended (and has remained for decades) to be anonymous. The investigation and subsequent data complied by the researchers was obtained solely with the promise of anonymity. The release of these documents could have grave effects on the future of academic research and journalistic confidentiality.
The MLAT was designed as a show of good faith between the United States and the United Kingdom. When written, it was made clear that the agreement was never to be used to achieve a political goal pertaining to the North. This inquiry from the UK violates that good faith, and could have devastating effects both in Ireland and in academia across the country.
In the interest of maintaining peace and furthering good relations throughout the United Kingdom, I urge you to work with British Authorities to rescind this request. As always, I appreciate you attention to this matter and please do not hesitate to contact me with any additional questions or concerns.
Promises of confidentiality made to compile an oral history of “The Troubles” in Northern Ireland must be upheld by the court to protect the participants, even though the British government says the records contain information about the murder of a mother of ten, according to parties fighting subpoenas in oral arguments before a federal appellate court yesterday.
The U.S. Court of Appeals in Boston (1st Cir.) is considering the appeal over subpoenas issued by the Department of Justice to Boston College, which holds the records. The U.S. government was acting on behalf of the British government, which is seeking to prosecute those responsible for the murder.
Boston College’s Belfast Project was an attempt to create an oral history of interviews with members of the Irish Republican Army and Loyalist paramilitary groups, according to the district court opinion in the case and a blog that was created in opposition to the subpoenas and to serve as a clearing house for related court documents. The project was proposed by Ed Maloney and some of the interviews were conducted by Anthony McIntyre.
“At the heart of this case is the failure of the district court properly to appreciate the risks at issue, namely the likelihood of harm to the appellants,” Eamonn Dornan, attorney for the appellants, told the court in the opening moments of his argument. Dornan also argued that release of the interviews, secured under confidentiality agreements, could chill the valuable First Amendment values served by the project.
Promises of confidentiality were “what made possible” the Belfast Project, Dornan said.
The appellants in the case, Maloney and McIntyre, were highly involved in the project. While Boston College was the party named in the subpoena, Maloney and McIntyre had sought to intervene in the case to assert their own interests in quashing the subpoena. Their request was denied, and it is this decision as well as the district court’s refusal to quash that are before the First Circuit.
Jim Cotter, who also represents Maloney and McIntyre, said that if the First Circuit affirms the district court, the consequences for foreign correspondents could be significant.
Boston College was subpoenaed by the Justice Department in 2011 and ordered to produce, among other things, interview materials concerning Dolours Price and “any and all interviews containing information about the abduction and death of Mrs. Jean McConville.” The information was sought at the request of the British Government under the Mutual Legal Assistance Treaty, as evidence potentially probative in their investigation of McConville’s death.
McConville, a mother of ten living in Belfast, was allegedly murdered in 1972 for being a suspected informant. The British government claimed that the interview materials with Price may contain information relevant to their investigation, according to the Boston Globe.
The project ran from 2001-2006, and interviewees were promised that their statements would remain confidential until their death, in order to protect them from retribution, according to the opinion. Retaliation against interviewees was thought to be of a particularly high risk because the Irish Republic Army has been known to enforce a strict “code of silence.”
Despite the fact that the existence of the Belfast Project — and even some of its participants — have been known for some time, disclosing specific statements still presents a risk of retribution, Cotter said. “Knowing that someone talked is different than knowing the details of what they said.”
At the argument, Dornan argued that release of the information contained in the interviews could subject McIntyre and Maloney to retribution because it could potentially lead to the prosecution of former militants. He also suggested that release of the information could upset peace between the IRA and the British government brokered under the Good Friday Agreement.
The district court applied a balancing test, comparing the government’s need for the information against Boston College’s interest in confidentiality, and ordered the college to produce the documents to the court for in camera review, meaning that the court would review the interviews privately. Maloney and McIntyre sought and received a stay from the Court of Appeals pending that court’s review.
IRA members face ‘grave physical danger’ if recordings made for American college’s project are handed to British authorities, U.S. court hears
By REBECCA SEALES Daily Mail
5 April 2012
Former members of the IRA face revenge attacks if recordings purportedly accusing Gerry Adams of running a secret death squad are handed over to Britain, a U.S. court heard.
Lawyers for ex-IRA man Anthony McIntyre and Irish journalist Ed Moloney are fighting a U.S. government decision to hand over taped interviews with IRA members that the pair made for an oral history project.
Yesterday, their appeal won the backing of U.S. senator and former presidential contender John Kerry, who said any release could jeopardise the ‘fragile’ Northern Ireland peace process.
The tapes were made between 2001 and 2006 as part of an oral history project that participants say was supposed to be kept secret until their deaths.
The project is intended to be a resource for journalists, scholars and historians studying the decades-long conflict in Northern Ireland.
But Northern Ireland police probing the IRA’s 1972 killing of a Belfast woman want access to the interviews as part of their investigation.
U.S. District Judge William Young ruled that Boston College must turn over interviews with convicted car bomber Dolours Price.
While the college initially fought subpoenas issued by U.S. prosecutors for the recordings, it did not appeal Judge Young’s ruling on the Price interviews.
Anthony McIntyre, a former IRA member who conducted the interviews, and Ed Moloney, an Irish journalist who directed the project, have filed a lawsuit challenging U.S. authorities’ decision to subpoena the records.
In court yesterday, the men’s lawyer Eamonn Dornan said McIntyre and the other IRA members who participated in the project face ‘the real risk of physical harm’ if the recordings are turned over.
He said McIntyre has already been branded an informant by some factions in Northern Ireland and could face an attack if the interviews become public.
Mr Dornan also argued that if the recordings are turned over, it will ruin the Northern Ireland oral history project and have a chilling effect on other academic research projects.
‘There’s no question it will be destroyed if any material is released from that archive,’ he said.
Assistant U.S. Attorney Barbara Healy-Smith argued that Judge Young had dismissed the lawsuit filed by McIntyre and Moloney, on the grounds that their interests were adequately represented by Boston College.
However, the Court of Appeal justices expressed skepticism that the college has the same interests as participants in the project.
Justice Michael Boudin said he found that argument ‘a little odd,’ noting that the college has decided not to appeal Young’s order to turn over the Price interviews.
Ms Healy-Smith said U.S. authorities are bound by a legal assistance treaty with the United Kingdom, which requires the two to aid each other’s criminal investigations.
The court is expected to issue its ruling within three months.
Speaking to the Belfast Telegraph, Moloney said that if he and McIntyre lose their current case before the three-judge appeals court, they may appeal to America’s highest court.
‘If we lose by two to one, we will appeal it to the (US) Supreme Court,’ he said.
Thoroughly Reframed: The First Circuit Cuts Through the Haze Chris Bray
WEDNESDAY, APRIL 4, 2012
Start in the hallway, and look for little gestures.
A panel of judges from the First Circuit heard arguments today — listen to them here — in the pair of appeals filed by Belfast Project researchers Ed Moloney and Anthony McIntyre. But first there was a long wait, as the judges heard a challenge to the Defense of Marriage Act in a courtroom that had no open public seats. So everyone filing in for the arguments over the Boston College archival material stood around in a remarkably pleasant seventh-floor hallway, where the federal judiciary should open a bed and breakfast to take advantage of the awesome waterfront views.
Then the DoMA case ended, the courtroom emptied, and the people in the hallway filed in for the Belfast Project hearing. The result of that repopulation of an empty courtroom was clear enough. At one point, a judge asked a question that, as legal blogger Ted Folkman wrote shortly after the hearing, “sparked some laughter from the side of the courtroom where the Moloney & McIntyre partisans were sitting.”
Like guests at a wedding, observers at the hearing lined up behind their sides: a team of lawyers from the U.S. Attorney’s Office watched from the public seats on the center-right behind their colleague arguing the case, while (for example) the lawyers who wrote the ACLUM’s amicus brief lined up on the left behind Eamon Dornan, the lawyer arguing on behalf of Moloney and McIntyre. Ed Moloney and Carrie Twomey, Anthony McIntyre’s wife, sat up front on the left, behind Dornan.
Two lawyers attended as observers for Boston College: Associate Counsel Nora Field, and Jeffrey Swope, the outside lawyer the university hired to contestulate(*) the Belfast Project subpoenas.
Field and Swope? They sat to the right of the government lawyers.
“A Little Odd”
Now, about that laughter in the courtroom: It was triggered by an observation from Judge Michael Boudin, in response to the government’s claims that Moloney and McIntyre have no interests in the case that aren’t already represented by Boston College: “It’s a little odd to be hearing how well Boston College represents these interests when they’re not seeking to appeal the order to turn over the documents.” Boudin was talking about the university’s decision not to appeal a district court’s order to give the government a set of confidential interviews with former IRA member Dolours Price, and yes: That’s a line that merits laughter. Moloney and McIntyre are appealing the order, and Boston College isn’t, but somehow Boston College fully represents the interests of Moloney and McIntyre.
But then Boudin kept going, turning to Smith’s efforts to push away constitutional questions with repeated references to the mutual legal assistance treaty between the US and the UK: “And then you say they can’t — assuming they really had very serious First Amendment interests, somehow those would disappear because the treaty doesn’t allow them to be raised. If those interests really existed, you’d think there must be some way to have them protected, regardless of what the treaty said, wouldn’t you?”
By my count, Smith responded to the question with four seconds of startled silence.
It was that kind of day for her.
Let’s Keep This Between Sovereigns
Smith had opened with an attempt to restrict the arguments the court would consider. “The issue here is much narrower than the appellants have presented it,” she began. In its brief, the government had similarly tried to wave off whole areas of argument, insisting that the lawsuit filed by Moloney and McIntyre against Attorney General Eric Holder need not be discussed; rather, they argued, the court only needed to validate the decision of the district court to refuse Moloney and McIntyre the right to intervene in an earlier case involving the subpoenas. “Resolution of the question of whether denial of intervention was proper is dispositive of this consolidated appeal,” they wrote.
But Chief Judge Sandra Lynch forced open the frame, rejecting the government’s efforts to have a limited discussion. “Miss Smith,” she said, “it would help me if you would actually frame your argument not in terms of the intervention, but in terms of the original action that these individuals brought. Because it does not necessarily follow from non-intervention that they didn’t have a right to file their own action.”
Two minutes into her argument, Smith had her first hint of possible defeat: The court thought it “did not necessarily follow” that the resolution of the intervention was dispositive.
And so, Lynch continued, “that then leaves the constitutional claims,” which she asked Smith to address, putting aside the question of standing. “What are your arguments under the First Amendment, here?”
Smith responded that there “is not a recognized privilege that would protect someone from giving evidence absent a strong countervailing interest — constitutional, common-law, or statutory privilege.”
Then she tried to pivot, shifting the argument away from the people in the courtroom: If anyone in the matter has a First Amendment interest at stake, Smith argued, it would be Boston College. In other words, this isn’t the time for this discussion, and let’s skip the First Amendment stuff for now, but go ahead and ask me again when Boston College is here in June to argue its own appeal of another order from the district court.
It didn’t work, and Lynch quickly cut her off. “Frankly, that seems to go to the standing issue, as opposed to the merits of the First Amendment claim. It may be primarily Boston College’s claim. But they [Moloney and McIntyre] claim they will also be injured under both the First and Fifth Amendment.”
Smith tried to shift the discussion again, saying that Moloney’s affidavit to the trial court had not offered a detailed description of the chilling effect on research that the subpoenas would have. So again, Smith — who had opened with a statement about the narrowness of the issues at hand — was trying to push aside a set of legal topics she didn’t wish to address: It isn’t in the affidavits, so let’s skip this part.
Lynch, who had sounded carefully bored throughout the discussion, briefly adopted a sharper tone. “I asked you to make some assumptions arguendo, and then get to — please… Assume they have a sufficient interest in this action to raise the constitutional claims. Just hypothetically assume that. What is your response as to why there are no constitutional claims that can be plausibly stated here.”
Long silence. Then, from Smith: “Well, because there is not one that would override the purpose underlying a treaty between two sovereign nations.”
Our treaty trumps your Constitution.
“It Might be Genocide”
And then came Boudin’s questions about whether “there must be some way” to protect a researcher’s constitutional rights, “regardless of what the treaty said.” By this point, it was clear in the courtroom that Smith was on the dark side of Planet Success, and she did what government lawyers do when they’re in trouble: She tried to dire things up a bit, saying that “this is a murder investigation, but it might be terrorism, it might be genocide, and to say that could be protected merely by a criminal confessing to an academic in an oral history project, the world will never get that evidence, and…”
She didn’t get to finish, because a judge cut her off, but note the maneuver, here: In case of fire, pull genocide reference. But your honor, are you trying to create a category of legal privilege for the Holocaust!?!?
In any event, Smith had also invented her own reality: In the case of terrorism or genocide, as in the murder investigation at hand, the confession to academics doesn’t mean “the world will never get that evidence.” The evidence doesn’t vanish into a vault; just a copy of it does. It still exists in the world where the academic researchers found it. The point is that government, rather than getting the evidence from the academics, can go get the evidence from the source. They can investigate, rather than borrowing an investigation from someone else.
Finally, again from Lynch, came the really crucial question, and academic researchers, watch this one closely: “Are you arguing then that there is a per se rule that it is never, when it involves a criminal prosecution, there is never any possibility of an academic privilege? …It’s not clear to me whether you are arguing that there is an automatic rule that the First Amendment can never trump a criminal prosecution, or whether you are saying in most cases a criminal prosecution is a sufficiently legitimate government interest to override any First Amendment claim being made.”
Bright flashing lights, here. Look closely at that question, and remember that this exchange will result in case law.
Smith’s answer: “We’re certainly saying that here there was nothing that could trump that, and also saying that in most cases it wouldn’t. I can’t think of where it would.”
“There’s Not a Privilege to Your Safety?”
Then Judge Juan Torruella got his turn to direct a few exasperated sounds at Smith, asking why the language of Rule 24 wasn’t helpful to Moloney and McIntyre. Because, Smith said, they don’t have “a recognized privilege” in the matter.
“There’s not a privilege to your safety?” Torruella asked. A better writer could convey his tone of voice, but let’s just say he didn’t seem to be buying it.
And then Lynch noted that she had looked at the cases the government had cited in its brief, “and it seems to me almost all of them apply in the immigration context and have to do with plenary congressional power over who enters the country. This case is a little bit different. I found no case that established the sort of absolute rule that your briefing suggested the case law established.”
Struggling to recover the narrow frame she wished to place around the case, Smith closed the insistence that, “under the MLAT, there’s a very narrow inquiry.”
Lynch sounded patient in the way a grade school teacher struggles for that effect at the end of a playground fight between children: “We’re not under the MLAT. We’re under the federal Constitution.”
Then, with the court having refused her framing — and with a judge telling her that the case law she cited doesn’t support the argument she made — Smith sat back down. As the court concluded the hearing, a cluster of lawyers and reporters gathered around Moloney, Dornan, and Twomey, who were all unmistakably pleased by the whole thing. They all spilled out into the hallway, then hung out in the hallway a bit, then went downstairs and took questions.
I looked around to see the demeanor of the lawyers from the U.S. Attorney’s office and Boston College, but their demeanor was not in evidence: They were gone as soon as the gavel fell. They sat on the same side and hustled away as a unit, grouped at the beginning and linked at the end.
(*Contestulation: The blurry ground between contesting and capitulating. A useful word for observers of Boston College. In the contestulational paradigm, the word “quash” takes on a new meaning, as in, “We’ll quash those interviews right over to the courthouse, your honor.”)
Prosecutors questioned in ‘Belfast Project’ appeal
KEVIN CULLEN in Boston The Irish Times
Thursday, April 5, 2012
FEDERAL PROSECUTORS who want access to a Boston College oral history project on the Troubles yesterday faced questioning from a panel of judges who are considering an appeal of a lower court’s ruling that the records should be turned over to British authorities.
A trio of judges from the First Circuit Court of Appeals heard from lawyers representing the journalist Ed Moloney, who directed the Belfast Project, and IRA prisoner turned writer Anthony McIntyre, who carried out the interviews of former IRA members.
They have appealed Judge William Young’s order that Boston College turn over the interviews.
Eamon Dornan, representing Mr Moloney and Mr McIntyre, argued that Mr McIntyre and his American wife and children, who live in the Republic, faced “a grave risk of physical harm” if the interviews were turned over to the PSNI.
Mr Dornan also argued that the former paramilitaries 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 – a successful piece of American foreign policy – of turning the records over under the terms of a treaty between the British and American governments.
While US prosecutors, acting on behalf of British authorities, have demanded information in the files that relate to the 1972 abduction and murder of Belfast mother of 10 Jean McConville, Mr Dornan argued there was no reasonable expectation this would result in a successful prosecution.
Ms McConville’s body was found in 2003 on a beach in Co Louth.
Mr Dornan said there were no grounds under which Dolours Price, who gave an interview to the Irish News claiming she drove Ms McConville to her death, would be extradited from the Republic to the North.
Mr Dornan also said the PSNI made no attempt to arrest or question Ms Price, even when she appeared in a court in the North in 2010, after implicating herself and Gerry Adams in Ms McConville’s disappearance and murder.
Mr Adams categorically denies the allegations.
The judges reserved most of their questioning for the US prosecutor, Barbara Healy Smith, who argued that Mr Moloney and Mr 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 and were encouraged by the tone of the judges’ questions.
“It went better than we had hoped for,” said Mr Moloney.