National Law Journal: First Circuit rejects Boston College researchers’ claims of privilege in U.K. probe of IRA

First Circuit rejects Boston College researchers’ claims of privilege in U.K. probe of IRA
By Sheri Qualters
The National Law Journal
July 9, 2012

The U.S. Court of Appeals for the First Circuit has rejected the claims of two researchers seeking to quash subpoenas issued to Boston College by the U.S. government on behalf of British authorities. The United Kingdom wants interview materials of a former Irish Republican Army member as part of its investigation of a kidnapping and murder.

On July 6, a First Circuit panel affirmed district court rulings that rejected the claims of the two researchers: Ed Moloney, who directs the college’s Belfast Project, and Anthony McIntyre, a project researcher and former Irish Republican Army member. The Belfast Project is an oral history project of people involved in political organizations associated with the “Troubles” in Northern Ireland that started in 1969.

The appeals court found that the researchers did not have a private right of action under a mutual legal assistance treaty between the U.S. and U.K. governments. Also, relying on the 1972 Supreme Court case Branzburg v. Hayes, it rejected the researchers’ claim of a First Amendment privilege: “[T]he fact that disclosure of the materials sought by a subpoena in criminal proceedings would result in the breaking of a promise of confidentiality by reporters is not by itself a legally cognizable First Amendment or common law injury.…If the reporters’ interests were insufficient in Branzburg, the academic researchers’ interests necessarily are insufficient here.”

The researchers attempted to quash subpoenas issued to Boston College in May 2011 and August 2011. According to the First Circuit opinion, interviewees entered into donation agreements with the school. They also donated signed agreements stating that the “ultimate power of release” remained with each of them due to the sensitivity of the material. The agreements gave the director of the school’s John J. Burns Library the power over the release of the material after the interviewee’s death.

The U.S. government issued the subpoenas on behalf the United Kingdom under a mutual legal assistance treaty. The United Kingdom is investigating the 1972 abduction and death of Jean McConville, believed to be a British government informant on the actions of republicans in Northern Ireland.

After receiving the United Kingdom’s request in March 2011, the U.S. government submitted a sealed ex parte application to the district court, asking for an assistant U.S. attorney to be appointed as a commissioner to collect evidence. The district court granted the government’s application later that month.

The subpoenas issued in May 2011 sought oral history recordings and related documents from the researchers’ interviews with two former Irish Republican Army (IRA) members: Dolours Price and Brendan Hughes. Boston College turned over the Hughes materials because he had died, but it filed a motion to quash or modify the Price subpoenas in June 2011. That August, Moloney and McIntyre filed a motion to intervene as of right and a motion for permissive intervention.

The subpoenas issued in August 2011 sought any information related to the death or abduction of McConville in any other interview material held by the school. Boston College moved to quash those subpoenas that month.

In December 2011, Judge William Young of the District of Massachusetts denied both Boston College’s motions to quash. He also denied Moloney and McIntyre’s motion to intervene as of right and motion for permissive intervention. Following an in camera review of the subpoenaed materials, Young ordered production of the Price interviews in December 2011 and production of the other interviews in January 2012. Also in January, Young dismissed Moloney and McIntyre’s separate case against the government, which made the same claims as their intervenor motion.

Moloney and McIntyre appealed the denials. Boston College’s appeal of the order regarding the August subpoenas is still pending at the First Circuit.

Chief Judge Sandra Lynch wrote the opinion in the case, captioned 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. She was joined by Judge Michael Boudin. Judge Juan Torruella filed a concurring opinion.

Lynch first found that the researchers’ claims fail because they have no private rights under the treaty, and no federal court has jurisdiction to review the attorney general’s actions in light of the treaty.

Lynch also noted that the researchers’ First Amendment claim had to be dismissed as required under Branzburg v. Hayes. The Branzburg court rejected reporters’ claims that the First Amendment gave them the right to refuse to testify before grand juries. Lynch noted that “sinceBranzburg, the Court has three times affirmed its basic principles in that opinion.”

In addition, Lynch cited a 1990 Supreme Court ruling, University of Pennsylvania v. Equal Employment Opportunity Commission. That ruling held that the First Amendment does not allow a university to avoid disclosing confidential peer review materials that are subpoenaed by the EEOC.

In the current case, Lynch wrote that Branzburg controls even though a U.S. grand jury did not issue the subpoenas: “The law enforcement interest here — a criminal investigation by a foreign sovereign advanced through treaty obligations — is arguably even stronger than the government’s interest in Branzburg itself. Two branches of the federal government, the Executive and the Senate, have expressly decided to assume these treaty obligations. In exchange, this country is provided with valuable reciprocal rights.”

Lynch wrote that the government decides whether to investigate criminal activity, not academic researchers: “We add that this situation was clearly avoidable. It is unfortunate that [Boston College] was inconsistent in its application of its recognition of the limits of its ability to promise confidentiality.”

In addition, Lynch noted in a footnote: “Although the complaint alludes to a Fifth Amendment claim, based on alleged risk to appellants, no such claim is pled or briefed, and it fails.”

In his dissent, Torruella wrote that he reluctantly concurs in the judgment based on Supreme Court case law, particularly Branzburg: “I write separately to emphasize my view that, while the effect of Branzburg and its progeny is to forestall the result that the Appellants wish to see occur, none of those cases supports the very different proposition, apparently espoused by the majority, that the First Amendment does not provide some degree of protection to the fruits of the Appellants’ investigative labors.”

Torruella opined that the appellants’ case failed “not because they lack a cognizable interest under the First Amendment, but because any such interest has been weighed and measured by the Supreme Court and found insufficient to overcome the government’s paramount concerns in the present context.”

Torruella then addressed the district court’s denial of the appellants’ motion to intervene as of right. He said he doubts that Boston College could “adequately represent” the interests of academic researchers who have risked their personal reputations and livelihoods. But he also said the point is moot because he’s “constrained to agree that the appellants are unable to assert a legally-significant protectable interest.”

The plaintiffs’ attorney, Eamonn Dornan of Dornan & Associates in Long Island City, N.Y., said he is disappointed with the ruling because he and his team believe the First Circuit construedBranzburg much more narrowly than the Supreme Court intended.

Dornan also said the First Circuit gave his clients’ Fifth Amendment claims very short shrift, particularly their right-to-life claims. He said his clients have claimed “consistently over the course of the case” that the release of such information could endanger their lives. Fulfilling the terms of the subpoena would mean that IRA intelligence would be given to the police service of Northern Ireland, which is contrary to the IRA’s strict code, he said. “Some may take it upon themselves to consider that my clients have assisted law enforcement in the conduit of IRA intelligence.”

McIntyre, in particular, believes he’s already been the target of veiled threats, Dornan said. He believes that excrement was mistakenly smeared on a neighbor’s house instead of his, for example, Dornan said.

In addition, the ruling’s conclusion that there’s no private right of action leaves his clients with no forum to challenge any bad faith on the part of law enforcement, Dornan said.”What we have to extrapolate is that it doesn’t matter what kind of bad faith activities that law enforcement may engage in; that cannot be challenged. Particularly where constitutional rights are at stake, that ruling is erroneous.”

Assistant U.S. Attorney Barbara Healy Smith in the Boston U.S. Attorney’s office argued for the government. In an e-mailed statement, office spokeswoman Christina DiIorio-Sterling said, “We are pleased that the Court recognized that the treaty between the U.K. and the U.S., as with other such treaties designed to facilitate assistance between sovereign nations in obtaining documents and evidence, as well as taking testimony or seizing proceeds of crimes, creates no private rights for individuals, but is intended solely for mutual legal assistance between countries. The decision of the Court also recognizes the strong public interest in not impeding criminal investigations, and the federal interest in reciprocal cooperation in criminal proceedings between foreign nations.”

Jeffrey Swope, a partner at Boston’s Edwards Wildman Palmer, who represented interested party Boston College, said the college wouldn’t comment because it’s appeal in the other case is pending.