Congressman Steven R. Rothman Letter to Attorney General Eric Holder and Secretary of State Hillary Clinton

The Honorable Hillary Clinton
Secretary of State
U.S. Department of State
Washington, DC 20521

Dear Madam Secretary,

I am very concerned about attempts by the United Kingdom to obtain documents, transcripts, and recordings from the Boston College Oral History Archive on the Troubles in Northern Ireland that were given to the College in confidence. While I appreciate the importance of the Mutual Legal Assistance Treaty the United States maintains with the United Kingdom, there would likely be serious consequences as a result of releasing the testimony of individuals who were told that information would not be released until their death.

There are two significant issues at stake in this matter. First, forcing Boston College to release these records will inhibit the ability of journalists and academics to collect oral histories in the future as participants may fear that these histories will be used against them. Second, the release of this information may rekindle friction in Northern Ireland over the struggle that led to the Good Friday Accords and upset the fragile peace that the people of the United Kingdom and Ireland have sacrificed so greatly to create.

I understand and appreciate the deep history and special relationship between the United States and the United Kingdom. However, I must respectfully urge you to intervene to protect the academic and journalistic integrity of the oral histories that were gathered in confidence by Boston College. I appreciate your attention to this matter and I look forward to your response. If there is anyway I can be of assistance in this matter please contact my Chief of Staff, Tom O’Donnell at (202) 225-5061.

Sincerely,

Steven R. Rothman
Member of Congress

Congressman Bill Pascrell, Jr. Letter to Attorney General Eric Holder and Secretary of State Hillary Clinton

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

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

Dear Secretary Clinton and Attorney General Holder,

I am writing today to express my deep concern with the request by the government of the United Kingdom for information from the Boston College Oral History Archive relating to the conflict in Northern Ireland. I believe this legal maneuver jeopardizes academic freedom in the United States and abroad, and could do harm to the still fragile peace process in Northern Ireland.

The request of Boston College, made through the U.S. – U.K. Mutual Legal Assistance Treaty (MLAT), fails to adhere to the stated intent of that treaty, which was intended to modernize the expedition process for serious crimes. In particular, the United States expressed that the treaty is not to be invoked for political goals, especially those relating to Northern Ireland which could undermine the Good Friday Agreement. Notably, the United States Senate resolved when ratifying the MLAT treaty, that “the treaty is not intended to reopen issues addressed in the Belfast Agreement, or to impede any further efforts to resolve conflicts in Northern Ireland.” The request in question aims to do just that, by reopening a decades-old case related to the conflict and possibly implicating individuals for conversations which they believed would be held in confidence.

Furthermore, this effort undermines academic freedom in the United Kingdom, Ireland and the United States. By collecting oral histories from those involved in the conflict, Boston College’s Belfast Project sought to increase the opportunities for reconciliation and understanding. The compilation of an accurate historical account of the events surrounding the Troubles in Northern Ireland will help future generations to understand this conflict and avoid repeating the past. Even if the request from the U.K. is denied, the appearance that those who speak in confidence about these events are not safe from government retribution will prevent others from coming forward to set the record straight, and also discourage academic institutions from undertaking similar projects.

In the interest of maintaining the close relationship between the United States, the United Kingdom, the Republic of Ireland and Irish-Americans, I urge you to ensure that this MLAT reuqest and subsequent subpoenas issued to Boston College are withdrawn. This action will go a long way towards ensuring our continued good faith commitment to the establishment of a permanent peace in Northern Ireland.

I appreciate your consideration of this request, and I look forward to your reply. Please keep me updated on this situation as it progresses, and feel free to contact me, or Ian McTiernan in my office, if I may be of assistance on this or any other issue.

Sincerely,

Bill Pascrell, Jr.
Member of Congress

Tough questions in UK quest for Irish archive in Boston

Tough questions in UK quest for Irish archive in Boston
By Ross Kerber
Reuters
Thu Apr 5, 2012 4:08am IST

* UK police want answers on 1972 Northern Ireland death

* Researchers seek U.S. Appeals Court help to stop inquiry

* Archive part of oral history project at Boston College

BOSTON, April 4 (Reuters) – Judges grilled a U.S. Justice Department attorney on Wednesday over the agency’s attempts to help United Kingdom police gain access to a closed archive of interviews with fighters from Northern Ireland’s sectarian conflict that is housed at Boston College.

Tough questions from the three-judge Appeals Court panel gave hope to researchers battling to keep the archive mostly sealed since it was originally meant for historians to use years from now. A ruling could be several weeks away.

“We’re still kicking!” journalist Ed Moloney said after the hearing in Boston.

Moloney and a colleague are trying to block subpoenas filed by U.S. officials on behalf of the Police Services of Northern Ireland. Officials want to have access to the archive to help with investigations involving onetime Irish Republican Army members.

The Justice Department has said it is acting under a mutual legal assistance treaty with the United Kingdom.

Critics of the UK effort to gain access to the archives say details from the interviews could undermine a 1998 peace deal that ended decades of fighting in Northern Ireland between Catholics and Protestants.

U.S. lawmakers, including Massachusetts Senator John Kerry, chairman of the Senate Foreign Relations Committee, have called the records quest a threat both to peace and to academic freedom.

Material from the archive has already raised new allegations that Sinn Fein Party leader Gerry Adams played a leading role in the Irish Republican Army, something that Adams has consistently denied.

Court filings say UK police officials are following up new leads that emerged in 2010 in a notorious killing, the 1972 abduction and death of Northern Irish woman Jean McConville.

A widowed mother of 10, McConville was killed by the IRA on suspicion of being a government informer – something her family has denied. Her body was recovered in 2003.

Known as “The Belfast Project,” the archive kept at Boston College includes several dozen interviews conducted since 2000 with figures from both sides of the conflict.

According to Moloney, the interviews were to be kept sealed at least until the subject died or agreed to release the interview. Boston College says the confidentiality agreements are not absolute and are subject to U.S. law, a limitation researchers say was not explained to interviewees.

TOUGH QUESTIONS FROM PANEL

The case got new attention in 2010 following the death of a leading IRA figure, Brendan Hughes. His death freed Moloney to publish “Voices from the Grave,” a book based partly on interviews Hughes had granted for the archive. In the interviews Hughes connected Adams to McConville’s death – a link that Adams has denied.

The interviews were conducted by Anthony McIntyre, a historian and former IRA member who is now Moloney’s partner in the legal effort.

Wednesday’s hearing at Boston’s federal courthouse lasted about a half hour and centered on the research team’s appeal of lower court rulings keeping them from pursuing their own efforts to block release of the material.

In January, a District Court judge ordered Boston College, a private university, to turn over some of the material to the Justice Department in the archive, but stayed the order pending appeals.

At Wednesday’s hearing, the judges focused most of their attention on a U.S. government attorney, Barbara Healy Smith, who at one point noted that arguments in favor of keeping the material sealed had been made by Boston College in earlier proceedings.

That brought a response from Judge Michael Boudin: “It’s odd to hear how well Boston College represents these interests,” he said, since the college has not been as aggressive as the researchers in fighting the government’s demands.

At another point Chief Judge Sandra Lynch told Smith that the U.S. Constitution, not international law-enforcement treaties, should guide arguments.

Eamonn Dornan, representing the researchers, told the panel that government officials have been too quick to attempt to tap the archive, and should properly balance law enforcement issues against the confidentiality promised to interviewees.

With hard feelings still rife in Northern Ireland, Dornan also said McIntyre and interviewees could face attacks or retaliation if the archive material were to be made public. There is a “real risk of physical harm,” he said at one point.

Dornan was optimistic about the case after the hearing, saying the judges “listened attentively to our arguments.” Smith declined to comment.

(Reporting By Ross Kerber in Boston; editing by Ros Krasny and Eric Beech)

Audio of Oral Arguments, First Circuit Court of Appeals

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

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 11-2511
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 DOLOURS PRICE,

UNITED STATES
Petitioner – Appellee,
v.
ED MOLONEY, ANTHONY MCINTYRE,
Movants – Appellant.

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

Download (right click, save as)

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

Transcript: Eamonn Dornan’s Oral Argument

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

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

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

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

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

Judge Lynch: Yes, you may.

ED: I’m obliged to the court.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But of course, no prosecution have even been attempted.

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

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

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

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

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

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

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

Judge Lynch: I see. Alright. Thank you.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Unless the court has any further questions?

Judge Lynch: No, thank you.

Transcript: US Attorney’s Oral Argument

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

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

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

Barbara Healy-Smith (BS): Good Morning.

Judge Lynch: Good Morning.

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

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

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

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

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

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

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

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

(Judge Lynch interrupts)

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

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

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

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

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

What are your arguments under the first amendment here?

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

Judge Lynch: That’s right.

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

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

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

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

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

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

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

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

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

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

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

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

Do I mis-remember?

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

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

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

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

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

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

BS: Well….

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

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

BS: To have them taken into account?

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

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

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

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

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

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

I can’t think of where it would, um….

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

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

The interest here being their safety.

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

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

(Judges speak to each other)

Judge Lynch: Both.

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

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

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

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

Judge Torruella: Right.

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

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

This case is a little bit different.

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

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

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

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

BS: From?

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

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

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

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

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

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

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

BS: I think there isn’t.

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

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

BS: That is correct.

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

BS: Well, I…

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

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

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

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

Judge Lynch: Okay.

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

Judge Lynch: Thank you.

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

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

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

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

Appeals court hears case of secret IRA tapes

Appeals court hears case of secret IRA tapes
By DENISE LAVOIE, AP Legal Affairs Writer
Associated Press

BOSTON (AP) — Former Irish Republican Army members whose interviews were recorded for a Boston College oral history project face grave physical danger if the recordings are turned over to British authorities and used in prosecutions, a lawyer for a former IRA member who conducted the interviews argued Wednesday.

The arguments came during a hearing before the 1st U.S. Circuit Court of Appeals, which is being asked to decide if the secret recordings should be given to police in Northern Ireland.

The recordings 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 for their investigation.

U.S. District Judge William Young ruled that Boston College must turn over interviews with convicted car bomber Dolours Price. The college initially fought subpoenas issued by U.S. prosecutors for the recordings, but did not appeal Young’s ruling on the Price recordings.

Anthony McIntyre, a former IRA member who conducted the interviews, and Ed Moloney, an Irish journalist who directed the project, filed a lawsuit challenging U.S. authorities’ decision to subpoena the records.

In court Wednesday, 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 as an informant by some factions in Northern Ireland and could face an attack if the interviews become public.

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 Young dismissed the lawsuit filed by McIntyre and Moloney, finding that their interests were adequately represented by Boston College.

The 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.

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.

BBC Radio Evening Extra: Andy Martin reporting from Boston

BBC Radio
Evening Extra
Wednesday 4 April 2012

Audio available for 7 days

Seamus McKee (SMc) goes to BBC Reporter Andy Martin (AM) who is reporting live from Boston covering the appeal hearing on the matter of the PSNI subpoenaing records from Boston College’s Oral History known as The Belfast Project. Ed Moloney (Ed) is interviewed both on tape and live.

5:14 PM

Seamus McKee (SMc): Let’s go to Boston. The appeal to block the hand-over of secretly recorded interviews with former IRA members is just finished. The PSNI’s attempting to get an American university to hand-over transcripts of the interviews conducted as part of The Belfast Oral History Project. Andy Martin’s outside that court room in Boston. What happened in court, Andy?

Andy Martin (AM): Well I have to say, Seamus, that the Attorney General’s representative who is trying to obtain the Dolours Price (interview) on behalf of the PSNI got a hard time from three federal court judges. Ed Moloney has just emerged from the court, he was the director of this project; he was the person behind it, the writer and journalist obviously, who dealt with a lot of security issues in Northern Ireland over the years. He’s making a statement to the press at the moment.

I can tell you that Anthony McIntyre, Dr. Anthony McIntyre, who was the lead researcher in terms of those Republicans who were interviewed as part of this project, his wife emerged from the court in tears. She said that she was delighted. She thought the argument had gone exceptionally well.

And I have to say that was reflected in what happened during the proceedings today.

The attorney on behalf of the researchers put forward his case; he was questioned once or twice by the three judges. And then the Attorney General’s representative stood up. She made her case and she was questioned at length by the judges; some of whom didn’t seem to be shy about showing that they didn’t appear to agree with what she was saying. The basis of the case of the researchers is very much that they feel that their lives will be at risk if the tape recorded with Dolours Price is handed over to the British authorities and to the PSNI.

They say they will be branded thereafter as informers as having handed over information relating to the IRA and that their lives and their families’ lives are in severe danger.

SMc: Andy, I believe that you have Ed Moloney with you.

AM: He’s just doing a press conference at the moment. Although, if possible, I would like to play you a clip of what he told me yesterday. Interestingly, throughout this case it has seemed almost inconceivable that this interview could lead to any prosecution. The Dolours Price interview is important because she was a close associate of Gerry Adams, the Sinn Fein president, she was a friend of his. And she spoke apparently to the Boston College about Gerry Adams’ role, that she alleged in the IRA, something that Gerry Adams has refuted strenuously. She said she has taken part, apparently she said to a newspaper, that she had taken part in the disappeared ; that was the abduction, murder and secret burial of nine people by the IRA and she said that Gerry Adams had been her Commanding Officer. That is why the PSNI are so keen to get her recorded interview.

Now I asked Ed Moloney yesterday where this case was going, what the possible outcomes would be and I put it to him that it was virtually inconceivable that there would be any political will to prosecute Gerry Adams and this is what he had to say:

Ed Moloney (EM): (on tape from yesterday) Well, one of the outcomes will be that, one way or another, I think it’s very likely that Gerry Adams will end up in a court, somewhere. Whether this (will) be a criminal court or a civil court….I don’t know. I suspect it would be the latter rather than the former. I don’t think that criminal charges be sustained on the basis of what is know in the public arena about this case. But the civil case is very certainly a possibility.

The family of Jean McConville have already announced, they announced way back in February of 2010, that they would try to sue Gerry Adams in a civil case.

If the police get hold of this material they are morally obliged, as they were in the Omagh case, to hand over this material to a family in that situation so that they could use it in a court case. And PSNI people will have to give evidence in court about it.

The standard of proof in a civil case is much lower than in a criminal case and I think it will be very tempting for people who have no time for Gerry Adams to go down that road.

SMc: That was Ed Moloney speaking yesterday. Thanks, Andy and we hope to hear from live from Ed Moloney a little later.

5:30PM

SMc: And we’ll have more sports very shortly meantime, we’re back in Boston where the appeal to block the hand-over of secretly recorded interviews with former IRA members has just finished. The journalist Ed Moloney is outside the courthouse. Good Evening!

EM: Good Evening Seamus. How are you?

SMc: I’m well. How do you think this went?

Ed: It was a very interesting day. Our attorney, Eamonn Dornan, who’s from Castlewellan incidentally, put in a magnificent performance; asked only one or two questions by the judges. When it came to the US Attorney’s turn to give her presentation to the court she was peppered with questions, sometimes quite skeptical questions, by the judges throughout the entirety of her presentation. In some ways it was quite astonishing to see this happen.

It has raised our hopes but we’re also trying to be very cautious about this because events inside a court room don’t necessarily indicate what their final verdict is going to be.

Put it this way: we came out of that court room, most of us, with smiles on our faces.

SMc: What argument was the Attorney General making?

EM: Basically that it was justified that we, that is myself and researcher Anthony McIntyre, had been turned down by the lower court here in Boston, in our attempt to represent ourselves separately from Boston College, who, if I can remind your listeners, have actually effectively withdrawn from this case and decided not to appeal the substantive judgment against them which was to hand-over the interviews.

We intervened at that point.

And her basic case was just a repetition of what the US Attorney’s office has been saying all along which is that the lower court judge said this therefore it’s okay.

But judging by the questions that were coming from the bench, I don’t think the judges were entirely convinced by that.

SMc: What questions did they have?

EM: They were asking questions like…one of the arguments that’s been put forward by the US Attorney’s office is that Boston College adequately represented our interests. The one question that actually brought a ripple of laughter in the court room came from one judge, one of the appeal judges, who said: Well, in that case, if Boston College adequately represented the interests of Mr. Moloney and Mr McIntyre, why aren’t they in the court room here today in this appeal?

And the government attorney really didn’t have much of an answer for that.

SMc: Ed Moloney, in Boston. Thank you very much

6:33 PM

Federal appeals court hears arguments in case of BC oral history project on ‘Troubles’ in Northern Ireland

Federal appeals court hears arguments in case of BC oral history project on ‘Troubles’ in Northern Ireland
By Martine Powers
Boston Globe
APRIL 04, 2012

Attorneys representing the US government and two researchers debated in federal appeals court today whether the potential danger of releasing confidential interviews with former members of the Provisional Irish Republican Army should trump the need to comply with an international treaty on criminal investigations.

The taped interviews are part of the Belfast Project, a Boston College oral history project to document the period of conflict known as The Troubles in Northern Ireland.

Researchers Anthony McIntyre and Ed Moloney guaranteed interview subjects that the recordings would remain secret until each interviewee had died, but in July, federal prosecutors asked BC to turn over the records to aid in an investigation by the British government into the death of Jean McConville, a Belfast mother of 10 who disappeared in 1972 and whose body was recovered in 2003.

In December, US District Judge William G. Young ordered Boston College to turn over the interviews to the government.

At issue in court today was whether the order for the tapes’ release should stand, and also whether the two researchers have legal standing to argue their case separately from Boston College.

Eamonn Dornan, an Ireland attorney representing the two researchers, contended that his clients and their families would be in great personal danger if the tapes were released to the British government.

Dornan also argued that his clients had the right to defend their research from subpoena in court — a right that has previously been denied to them in lower court.

“Boston College has institutional concerns, but the stakes for my clients are unimaginably higher,” Dornan said.

The future of academic research projects like this one, he said, was also at risk.

“Why should a foreign government have more freedom to access confidential, sensitive information here in the United States more than a US citizen?” Dornan said.

Barbara Healy Smith, the attorney representing the US government, argued that the researchers are not guaranteed the right to keep their research private — just as journalists are not exempt from naming a confidential source if subpoenaed.

Smith’s arguments were frequently interrupted by the three judges, who asked why the need to comply with an international treaty on criminal investigations trumps the US government’s responsibility to protect the safety of the researchers and their families.

After the hearing, McIntyre’s wife, American-born Carrie Twomey, said that she lives in fear that a member of the paramilitary group will take vengeance against herself or her family.

“It’s been a complete nightmare, one that we don’t ever seem to be able to wake up from,” Twomey said.

Senator John Kerry Op-Ed

Senator John Kerry Op-Ed

It’s an overused and oft-quoted phrase that those who fail to study the lessons of history are doomed to repeat them.

But sometimes there are exceptions even to this axiom when people have worked painstakingly to overcome the most painful of history and decided together to leave something in the past in the interests of exploring a better, more peaceful future.

In South Africa, Nelson Mandela spoke poignantly of the responsibility he felt to put the past behind him in order to focus on the future of his country.

In Northern Ireland, as well, leaders have done the hard work of trying to leave some of the past buried so as not to distract or destroy an effort to build a different future for all who want peace and opportunity.

History must not be a weapon against those trying to seize the opportunity of today to build a more promising tomorrow.

In an effort to use history as a learning tool, Boston College undertook a comprehensive oral history project called the Belfast Project. Between 2000 and 2006, the college collected thorough and detailed oral histories of Irish Republican and Loyalist paramilitaries, chronicling The Troubles from from both sides and from many different perspectives. In an effort to secure such a rich collection of histories, all participants in exchange were promised that their interviews would be confidential until their death or until he or she released the College from this confidentiality agreement.

In the spring of 2011, that confidentiality was threatened and with it, the fragility of efforts among so many to overcome a difficult era. The U.K. Government is is now applying pressure on the United States to turn over certain transcripts contained within the Belfast Project, under the U.S.-U.K. Mutual Legal Assistance Treaty (MLAT). Boston College has appealed, and since then there have been a flurry of tactics used to obtain this information, including subpoenas, appeals, court motions and objections.

It is my great hope that the academic integrity of these documents is maintained and that these transcripts remain confidential because for some this has become a matter of life and death. At stake are much more than issues of preserving a history project, rather this investigation could endanger a fragile peace process. It is impossible to know exactly what information might be contained within the Project, but it is safe to say that any of the crimes that have been described would have occurred prior to the Good Friday Agreement and would create an extremely dangerous situation if this information were used to upend the process.

I can still remember with vivid detail April 10, 1998 – the day the Good Friday Agreement was signed, under the enormous leadership of President Clinton, Prime Minister Blair, and so many others who wanted the cycles of violence and retribution to end. It meant so many things to so many people – to the citizens of the North, it meant global legitimacy and to many throughout the rest of Ireland it was a hopeful day that the violence just might be coming to an end. Now almost 14 years later, that Agreement, the spirit in which it was reached, and the United States’ role as a friend to the Irish people, must be protected.

I have been in close touch with our Department of Justice, the Department of State, and officials abroad to emphasize the risks of a political exercise that threaten what so many struggled so long to achieve. Treaties like the MLAT between the United States and the United Kingdom are vital, but they were never meant to be used as a method of reaching far back into a difficult history and perhaps eroding a delicate truce that could lead to more lives being lost.

We must not go backwards and this week with another hearing in the courts and the upcoming anniversary of the Good Friday Accords, we should all redouble our efforts to reach a solution that keeps the people of Northern Ireland, the United States and the United Kingdom focused on a future of peace and prosperity. We have turned a corner and we must continue the hard work of writing a new history for a people who have known so much pain.

John Kerry (D) is the senior senator from Massachusetts and the Chairman of the Foreign Relations Committee

Irish future shouldn’t get lost in violent past

Irish future shouldn’t get lost in violent past
By John Kerry
Boston Herald
Wednesday, April 4, 2012

It’s an overused and oft-quoted phrase that those who fail to study the lessons of history are doomed to repeat them. But sometimes there are exceptions even to this axiom when people have worked painstakingly to overcome the most painful of history and decided together to leave something in the past in the interests of exploring a better, more peaceful future.

In Northern Ireland leaders have done the hard work of trying to leave some of the past buried so as not to distract or destroy an effort to build a different future for all who want peace and opportunity. History must not be a weapon against those trying to seize the opportunity of today to build a more promising tomorrow.

In an effort to use history as a learning tool, Boston College undertook a comprehensive oral history project called the Belfast Project. Between 2000 and 2006, the college collected detailed oral histories of Irish Republican and Loyalist paramilitaries, chronicling The Troubles from different perspectives. Participants were promised their interviews would be confidential until their death or until they released BC from the confidentiality agreement.

Last spring that confidentiality was threatened and with it the fragility of efforts by many to overcome a difficult era. Britain is now applying pressure on the U.S. to turn over certain transcripts contained within the Belfast Project, under the Mutual Legal Assistance Treaty signed by both nations. BC has appealed.

It is my hope that these transcripts remain confidential because for some this has become a matter of life and death. This investigation could endanger a fragile peace process. It is safe to say that any of the crimes that have been described would have occurred prior to the Good Friday Agreement.

The agreement, signed April 10, 1998, meant so many things to so many people. To the North, it meant global legitimacy and to many throughout the rest of Ireland it was a hopeful day that the violence just might be nearing an end. Now that agreement, the spirit in which it was reached, and the U.S. role as a friend to the Irish people, must be protected.

Treaties like the Mutual Legal Assistance are vital, but they were never meant to erode a delicate truce that could lead to more violence.

Today with another hearing in the courts and on this upcoming anniversary of the Good Friday Accords, we should redouble our efforts to reach a solution that keeps the people of Northern Ireland, the United States and Britain focused on a future of peace and prosperity. We must continue the hard work of writing a new history for a people who have known so much pain.

John Kerry (D) is the senior senator from Massachusetts.

Senator Scott P. Brown 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 20530-0001

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 write with deep concern about the ongoing efforts of the United Kingdom to secure documents and recordings from Boston College’s oral history archive on the Troubles in Northern Ireland (the “Belfast Project”).

As you know, the Belfast Project contains personal accounts of individuals involved in The Troubles. The research sought to capture insight into the minds of people who were personally involved in the conflict. The interviewees agreed to participate in the project after signing a confidentiality agreement with Boston College that provided that the interviews would only be released after the death of the interviewee. I fear that the release of these materials may have a serious chilling effect on academic freedom.

Release of interviews may also negatively impact the success of the Northern Ireland peace process. I am concerned that the release of the Belfast Project interviews puts at risk the progress that has been made since the Good Friday Agreement.

In addition, many of my constituents have raised concerns that the release of the interviews may put lives in jeopardy. As I am sure you understand, the interviews conducted are of a very sensitive nature and could lead to retribution.

I understand the United Kingdom has requested the documents and interviews under the Mutual Legal Assistance Treaty (MLAT) between the U.S. and U.K. I encourage you to work closely with British authorities to have the Mutual Legal Assistance Treaty (MLAT) request withdrawn.

Thank you in advance for your attention to this important matter.

Sincerely,

Scott P. Brown
United States Senator