Hillary and Holder Now Free to Stop Boston College Subpoenas

Hillary and Holder Now Free to Stop Boston College Subpoenas
Ed Moloney
The Broken Elbow 
8 July 2012

In the wake of what was otherwise a disappointing and intellectually unimpressive judgement from the First Circuit Appeal Court on the PSNI subpoenas for the Boston College oral history archive, it is now clear that any obstacles in the way of Hillary Clinton and Eric Holder stopping this foolish and counterproductive move by the PSNI have been removed.

First of all, the First Circuit has delivered its verdict. No matter that it was not the verdict we wanted to read, nonetheless the Obama White House can no longer say that their hands are tied because the matter is still being considered by the courts.

The second reason comes at the end of this distinctly unimpressive and unconvincing verdict. The last four pages are taken up by what might be called a semi-dissent from the first Hispanic to sit on the the First Circuit bench, Judge Juan Torruella whose view was that while he disagreed with the other two judges’ reasoning, he reluctantly went along with the judgement, if only because of Supreme Court precedent.

In the midst of his commentary one or two diamonds sparkle and catch the eye. And one lustrous gem makes it very clear that a) the alleged offences that are the subject of the subpoenas are undeniably political in nature and b) while we as the individual appellants are unable to make that objection in court because the legislation that enabled these subpoenas, the Mutual Legal Assistance Treaty between the US and UK, renders that impossible the US government could and if they did, the subpoenas would be dead in the water. In other words Eric Holder, either by himself or because of pressure from Secretary of State Hillary Clinton could stop these subpoenas in their tracks.

There are two things to say about this. The first is that this determination by such a senior American judge that the conflict in Northern Ireland was essentially political in nature is of enormous significance and a real slap in the face to all those, from Roy Mason to Margaret Thatcher and beyond who insisted it was never anything but a criminal conflict. Judge Torruella is, in essence, saying that Bobby Sands was justified to demand political status, as were all those other IRA prisoners who either died on hunger strikes or endured years of prison protest because the British had declared them criminals.

The seoond point is that the judge has now given perfect cover to Hillary Clinton and Eric Holder to dump these subpoenas. If they want to and, presumably, if enough pressure is applied to them from Irish-America.

Here is what Judge Torruella had to say. It comes as footnote number 28 on page 45:

Appellants also claim that the Attorney General’s actions are not in compliance with the US-UK-MLAT, among other reasons, because “the crimes under investigation by the United Kingdom were of ‘a political nature.’” Pursuant to Article 3, ¶ 1(c)(i) of the treaty the United States may refuse assistance to the United Kingdom’s request if it relates to “an offense of a political nature.” Ignoring the underlying and pervasive political nature of the “Troubles,” as the Irish-British controversy has come to be known in Northern Ireland, is simply ignoring one hundred years of a well-documented history of political turmoil. These came into focus when Ireland was partitioned, and six of its Ulster counties were constituted into Northern Ireland as an integral part of the United Kingdom by virtue of the Government of Ireland Act of 1920. See generally Northern Ireland Politics (Arthur Aughley & Duncan Morrow eds.) (1996). That the academic investigations carried out by Appellants in this case, and the evidence sought by the United Kingdom involve “offenses of a political nature” irrespective of how heinous we may consider them, is borne out by the terms of the Belfast Agreement (also known as the “Good Friday Agreement”) entered into by the Government of the United Kingdom and the Irish Republican Army, whereby almost all prisoners were released by the British government, including many who had been convicted of murder. See Karl S. Bottigheirmer & Arthur H. Aughley, Northern Ireland, Encyclopaedia Britannica (2007). Unfortunately for Appellants, they are foreclosed from pursuing their claim by virtue of Article 1, ¶ 3 of the treaty, which prohibits private parties from enforcing any rights thereunder.