Boston College Researchers Appeal to U.S. Supreme Court…As Deadline for IRA Tapes Handover Nears
PHILADELPHIA, Sept. 4, 2012 /PRNewswire-USNewswire/ — On the heels of being denied an ‘en banc’ hearing before a full panel of First Circuit judges, Boston College researchers Ed Moloney and Anthony McIntyre, the central figures in Boston College’s oral history project documenting ‘The Troubles’ in Northern Ireland, have announced their intention to take their case to the United States Supreme Court.
In a joint statement, Moloney and McIntyre said, “The Mutual Legal Assistance Treaty, MLAT, denies American citizens the right to seek redress for grievances as guaranteed by the First Amendment in the U.S. Constitution’s Bill of Rights.”
This case arises from subpoenas issued by the British Government on behalf of the Police Service of Northern Ireland, PSNI, seeking interviews with former IRA activists lodged in the Boston College archive for the purpose of investigating the murder of Jean McConville, a suspected informant on the IRA, in an investigation that has lain dormant for years.
The subpoenas, based on the Mutual Legal Assistance Treaty, MLAT, between the U.S. and the U.K. have never before been used in this type of investigation– in circumstances suggesting a politically motivated propaganda campaign.
In its judgment, the First Circuit ruled that Moloney and McIntyre do not have the right to challenge an MLAT subpoena even when it infringes on their constitutional First and Fifth Amendment rights. This judgement means that American citizens have fewer rights when served with a subpoena from a foreign government than when served with a subpoena from a U.S. law enforcement agency.
This judgement also sharply conflicts with a separate and earlier ruling from the Ninth Circuit which stipulates that individuals do, in fact, have the right to challenge an MLAT in court on several grounds, including violation of constitutional guarantees. In that event, a district court “may not enforce” the MLAT subpoena or a proceeding which “departs from our concepts of due process or fairness.”
With the Ninth Circuit and the First Circuit in conflict over this basic and important issue, their attorneys Eamonn Dornan and JJ Cotter will ask the Supreme Court to exercise its powers to decide an important question of federal law or to resolve a conflict between two U.S. Courts of Appeal.
If the IRA tapes are handed over, the consensus is that it could wreak havoc on the already fragile Northern Ireland Peace Process and have grave implications for future academic research and the integrity of all future oral history projects. If confidentiality cannot be guaranteed, participants in similar historical research projects will be less likely to engage.
The researchers’ attorneys and the American Civil Liberties Union, ACLU, of Massachusetts asserted that British law enforcement could not demonstrate that the subpoenaed materials were essential to a good faith criminal investigation or that information could not be obtained from less sensitive sources by means which would not infringe on First Amendment rights.
The U.S. sponsored Good Friday Agreement was designed to end the days when a police force could arbitrarily engage in politically motivated prosecutions of participants in the combat. However, this case has reached the point where its effects will be felt not exclusively in Northern Ireland but will have a direct impact on the fundamental constitutional rights of all Americans.