Supreme Court Update: Radio Free Éireann interviews Belfast Project Director Ed Moloney

Supreme Court Update: Belfast Project Director Ed Moloney
Radio Free Éireann
WBAI 99.5 FM Pacifica Radio
New York City
Saturday 22 December 2012

Sandy Boyer (SB) and John McDonagh (JM) interview Ed Moloney (EM) about the updates in the legal case involving the UK government subpoenas issued to Boston College for the oral history archive known as The Belfast Project.

(begins 1:37 PM EST)

Sandy Boyer (SB): We’re talking to Ed Moloney, who among other things was the director of an oral history project that tried to get a history of The Troubles in a different way: talking to the members of the IRA and the Ulster Volunteer Force who had actually been doing the fighting.

The British government is trying to get its hands on those interviews and the American government is doing everything they can to help them. And now that case has gone all the way up to the Supreme Court. Ed, thanks very much for being with us.

Ed Moloney (EM): No problem, Sandy.

SB: And there’s at least some encouraging news this week.

EM: Yes, our application or brief or whatever you want to call it is in front of the Supreme Court right now and they have to make a decision about whether they will hold a hearing into the case. That would obviously be a very major development if that happened.

Well, this week we launched a number of what are called amici brief (friend of the court briefs).

These are from people who are not directly involved in the case themselves but have a point of view that they would like the court to read.

And they were all in our favour and two of them came from very prestigious lobbying groups on behalf of media rights.

One, an American one which is the major group that represents working journalists in relation to legal challenges called the Reporters Committee for Freedom of the Press, which has been going since about 1970 when the federal government tried to force a reporter from The New York Times to surrender all his sources in the Black Panther movement and this group was put together by various members of the press to resist that.

And then another one is called Article 19 and that’s an international body that gets its name from Article 19 of the Universal Declaration of Human Rights which calls for the free-flow of information, etc.

They’re based in London but they represent media outlets and journalists throughout the entire world. And have fought cases like…they spearheaded for example the campaign to protect Salman Rushdie from the Iranian fatwa.

Then we had an amicus brief from about fourteen senior academics from Indiana.

And then lastly, the three Irish-American groups who have been to the fore of this campaign: The AOH, the Irish American Unity Conference and The Brehon Law Society put in an amicus brief.

That happened on Thursday and the very next day the US government reacted. It had responded to our original petition to the Supreme Court by I think trying to play it down and ignoring it. The Solicitor General let it be known that he wasn’t even going to file a response to our petition.

Well, once these amicus briefs appeared he did an abrupt change of mind and announced or let us know that he’s now going to file a response. And he asked the court for another lengthy delay until January the 31st before he files which means that we’re probably into maybe March before we get a decision on this.

So it delays it nonetheless so I think is it’s quite good news. It’s getting quite alot of publicity and these are good developments.

The briefs, the amicus briefs, were all very good – very well-argued – very encouraging.

SB: Now Ed, just to clarify: these are briefs telling the Supreme Court that it should take your case, your appeal, from the court decision that said the interviews should be handed over. But you also got a very good article from a very intellectual law review which apparently has alot of influence with the Supreme Court.

EM: Well I hope so. Stanford Law Review, which is a very prestigious publication, had an article more or less calling on the Supreme Court to take on the case and hopefully that call will be heeded. But we’ll see…

You know, I mean there are sort of positive signs but you’ve got to be very careful as well because the Supreme Court makes its own mind up and they take a very, very small percentage of the cases that are put in front of it. So we’ll just wait and see and hope for the best but not expect too much.

SB: This allows more time for individuals to intercede with their own elected officials.

EM: Well, you see the other development that’s happened of course is that John Kerry has been nominated as Secretary of State – replacing Hillary Clinton and he is very much on record as wanting to stop the hand-over of these interviews.

Now we’ll wait and see what transpires when he actually does take office. But you know, that’s another positive sign and in fact, this delay gives him time to settle into office and various other things can happen in conjunction with that. And we’ll see how it goes.

SB: Again, with the previous Attorney General we were urging people to get their elected officials to write and with a new Attorney General it will be a fresh opportunity.

EM: I don’t think it’s a new Attorney General — it’s a new Secretary of State.

SB: You’re quite right. Unfortunately…

EM: Holder is staying there unfortunately for reasons not just confined to our own…I don’t think he’s been the greatest individual in that office. But John Kerry getting into the State Department is good for us…we hope.

John McDonagh (JM): And Ed, we’ve been covering a couple of cases over there between Martin Corey and Gerry McGeough and the way they don’t give out information…you can only imagine what they might do with these tapes…the manipulation of them and who they could arrest on behalf of the tapes.

I mean, people are being held on just about no evidence and they can’t even see it. So I mean the way they’re pursuing these tapes God knows who they want to put in gaol or what they want to use them for.

EM: It does raise all sorts of very important questions about the motivation of the people who are behind this in the first instance.

I think….there’s no doubt in my mind that there are elements within the PSNI associated with the old RUC/Special Branch who saw an opportunity here to cause mayhem and decided to grab it.

There’s a new leadership in the PSNI, the Chief Constable etc, who I think were taken for a ride, (at least that’s my impression), by these people — probably in their naivety and not knowing the reality of the policing system and not knowing the character and colour of some of these RUC, former RUC/Special Branch types – and they took the initiative and they started this ball rolling.

Hopefully, we will stop them. I will certainly do everything in my power to stop them – that’s for sure.

SB: Ed, how could these interviews conceivably be used? It would be very hard for the PSNI to use them in a court of law, presumably…

EM: Yes, they would want to…yes. And the problem for us in that regard is that the laws of evidence now in the UK system have been relaxed so much that this type of evidence which is normally regarded as hearsay evidence can now be admitted to court.

So they could bring all sorts of people up on charges, conspiracy charges, and not just the individuals who were let’s say interviewed or whose interviews are handed over but because they could bring conspiracy charges against people who are mentioned in the tapes.

SB: And a lot of their interest seems to center on Jean McConville, who was abducted and killed by the IRA, and people have gone on record saying Gerry Adams was centrally involved in that.

EM: Yes, yes, right – there’s no doubt. And that’s why I think the RUC/Special Branch went for this – I think they had Adams in their sites and they want to do this…to wreak revenge on him.

You can imagine from their point-of-view: there they are, RUC/Special Branch no longer exists, the RUC, in the old terms, doesn’t exist anymore.

You’ve got this new PSNI and there’s Gerry Adams waltzing around the world stage – he’s a member of the Irish Parliament and McGuinness is Deputy Minister of Northern Ireland government – they must be fuming.

And this is their opportunity to have revenge.

And I think what’s in their minds as well is that if let’s say the legal authorities in charge of this come to their senses and say: Listen, we can’t go down this road because the damage to the peace process will be so great that in the public interest we recommend no prosecution – which is what can happen and I think probably will happen.

Nonetheless, their plan all along has been, and they’ve made this clear in public statements, to use the evidence that is handed over to bring civil cases against the various people who would be named in the tapes.

And so you would end up with an O.J. Simpson-type situation for people like Gerry Adams. A danger which I don’t think the Sinn Féin leadership is particularly aware of or at least if they are they’re not taking it terribly seriously because it is I think what the name of this game is really about at the end of the day – it’s about bringing this case into a civil court where the rules of evidence are even more relaxed and where the standard of proof necessary for a verdict is much less than in the criminal process. So, that’s what I think they’re up to.

JM: You’re listening to Radio Free Éireann and we had Ed Moloney on. Ed, thanks for coming on.

EM: No problem.

JM: If you want to read more of Ed Moloney go to The Broken Elbow.

Just type that into any search engine and you’ll get to go right to Ed and read some of the things he’s been writing about lately.

He also has one of the best books about The Troubles – it’s called The Secret History of the IRA.

And if you’ve been listening to this show it looks like we’re going into 2013 not on a very happy note with the way the prisoners are going and with the way…hopefully…we’ll get better news with the prisoners and with the case of Ed Moloney and the tapes up at Boston College that they’re fighting to get these tapes that were not be to released until the person that made the tape, whether it was an IRA man or a Loyalist paramilitary, until they were dead. And then tapes were released, and Ed has a book already on some of the people that died and he wrote a book called Voices From the Grave – that there was also a documentary also made about.

(ends 1:48 PM EST)

US Government Does U-Turn After Amicus Briefs Lodged In Boston College Case

US Government Does U-Turn After Amicus Briefs Lodged In Boston College Case
Press Release
December 21, 2012

Less than 24 hours after amicus curiae (friend of the court) briefs were lodged with the US Supreme Court in the Boston College archives case, the Department of Justice performed a volte-face and announced that they would now lodge a brief with the court answering arguments in favor of the petitioners, former Boston College researchers, Ed Moloney and Anthony McIntyre.

When lawyers for Moloney and McIntyre filed their petition with the Supreme Court in November, US Solicitor-General Donald Verrilli told the court that he did not intend to answer the petition but this morning he abruptly changed his mind, asking the court for a delay until January 31st to prepare a reply. Four amicus briefs were lodged with the Supreme Court on Thursday. Moloney & McIntyre’s lawyers will have an opportunity to answer his arguments and so it may not be until February or March before the Supreme Court decides whether to take the case on.

Moloney & McIntyre are asking the Supreme Court to reverse a decision by the First Court of Appeals in Boston denying the men the right to resist subpoenas seeking IRA interviews from Boston College’s archives, also known as the Belfast Project. The subpoenas were served by the US Department of Justice on behalf of the UK government which in turn is believed to be acting for the Police Service of Northern Ireland in an alleged investigation into the murder and disappearance of accused British Army informer Jean McConville in 1972.

Amicus briefs were lodged with the Supreme Court on behalf of the Reporters Committee for Freedom of the Press and ARTICLE 19, two of the world’s leading lobbyists for media rights, as well as by fourteen senior academics from Indiana universities and the Irish-American Coalition of the Ancient Order of Hibernians, the Irish American Unity Conference, and the Brehon Law Society.

Scholars Urge Supreme Court to Protect Researchers’ Pledges

Scholars Urge Supreme Court to Take Up Case Involving Researchers’ Pledges of Confidentiality
By Peter Schmidt
Washington
The Chronicle of Higher Education

More than a dozen social scientists have joined media advocacy organizations in urging the U.S. Supreme Court to take up a case involving government efforts to force Boston College to hand over confidential interviews with former members of the Irish Republican Army.

In an amicus curiae, or “friend of the court,” brief filed Wednesday, 14 social-science scholars, all from universities in Indiana, argue that their ability to carry out sensitive research has been undermined by a federal appeals court ruling requiring Boston College to hand over to British authorities records of confidential IRA interviews that are housed at an archive there.

The researchers who had conducted the interviews as part of an oral-history project had given their subjects assurances that their identities would be shielded and access to the interview records restricted until the interview subjects’ deaths, unless the subjects requested otherwise. In a ruling handed down in July, however, a three-judge panel of the U.S. Court of Appeals for the First Circuit held that Boston College could not refuse U.S. Justice Department subpoenas seeking the records on behalf of the British government, which wants them as part of its investigations of past IRA activity. The case has triggered alarm among oral historians and other researchers over the possibility that their pledges of confidentiality to subjects might carry little weight in court.

The 14 social scientists argue in their brief that the First Circuit’s decision affects research well beyond that at issue in the case, in that it “jeopardizes the long-term ability of scholars to gain information regarding profoundly sensitive and controversial subjects.”

In a separate amicus brief urging the Supreme Court to take up the case, the Reporters Committee for Freedom of the Press, a media advocacy group based in Arlington, Va., argues that the First Circuit erred in denying the academic researchers a chance to defend their interests solely because the records at issue were held by a third party,Boston College. The Reporters Committee also argues that the Supreme Court needs to resolve discrepancies among the federal circuits on the question of whether courts need to decide, on a case-by-case basis, whether the government’s interest in obtaining confidential records outweighs First Amendment concerns.

A brief filed by an international organization of journalists, Article 19: Global Campaign for Free Expression, argues that the First Circuit’s decision conflicts with the legal protections of journalists’ sources enshrined in the laws of other nations and most states in the United States.

Three prominent organizations of Irish Americans—the Ancient Order of Hibernians, the Brehon Law Society, and the Irish American Unity Conference—submitted a brief arguing that the First Circuit’s decision creates the possibility that the interview subjects will suffer reprisals, and potentially threatens the accord that has brought Ireland peace.

Social Science Scholars Support Supreme Court Petition

Fourteen ranking academics from Indiana University-Purdue University Indianapolis, Indiana University, Bloomington, and Butler University, Indiana, including Deans, Professors, Assistant & Associate Professors, and Lecturers in Sociology and Law have filed an Amicus Brief in support of Belfast Project Researchers’ Supreme Court Petition.

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The Social Scientists’ brief addresses the continuum of First Amendment interests that flow between journalists and researchers, which are undermined by the confusion of Branzburg. Their brief highlights additional important policies that favor protection of academic research into conflict areas, and the nebulous state of First Amendment law as regards academic freedom.

QUOTES:

“Any social science or oral history research is threatened by the potential subpoena of confidential materials, including sensitive or personal information that may or may not involve illegal activity. The threat of unlimited subpoena power undermines the ability of any researcher to promise confidentiality and thus to obtain honest and reliable answers to the most pressing issues of our time………The court of appeals’ decision thus jeopardizes the long-term ability of scholars to gain information regarding profoundly sensitive and controversial subjects, including information that can help society avoid violent conflicts in the future.”

“The result in the case creates potentially crippling uncertainty for those who gather information from confidential sources, including academic researchers like amici. Such researchers need to be able to assure their sources that their confidentiality will be respected and their interests considered by a court of law before the court grants a subpoena and publicizes their private information or personal identity. Without such assurances, many persons will be unwilling to speak with researchers, limiting the scope of social science research and leaving irreparable lacunae in human knowledge.”

Boston College Case Press Release On Amici Curiae Brief To The United States Supreme Court

Boston College Case Press Release On Amici Curiae Brief To The United States Supreme Court
December 20th 2012

Two of the world’s most respected pressure groups for journalistic freedom and media rights, The Reporters Committee for Freedom of the Press and Article 19, have joined with a group of distinguished American social scientists and the three most influential Irish-American groups in the US, to submit amici (‘friend of the court’) briefs to the United States Supreme Court in the Boston College archives case.

The Supreme Court is considering a petition from Ed Moloney and Anthony McIntyre, researchers for the Boston College-based Belfast Project on the oral history of paramilitary groups in Northern Ireland, to overturn a decision by the First Circuit of Appeals denying their effort to challenge subpoenas demanding that interviews be handed over to the police in Northern Ireland. The subpoenas were issued by the US Department of Justice on behalf of the government of the United Kingdom.

The Reporters Committee was formed in 1970 to assist a New York Times reporter who had been ordered by a Federal Grand Jury to reveal his sources in the Black Panther organization. Its mission statement reads:

“To protect the right to gather and distribute news; to keep government accountable by ensuring access to public records, meetings and courtrooms; and to preserve the principles of free speech and unfettered press, as guaranteed by the First Amendment of the U.S. Constitution.”

The steering committee of the group contains some of America’s best known and respected reporters including Tony Mauro, Wolf Blitzer, Michael Duffy, Nat Hentoff, Dahlia Lithwick, Jane Mayer, Doyle McManus, Andrea Mitchell, Bob Schieffer, Pierre Thomas and Judy Woodruff.

Article 19, a London-based human rights group, was established in 1987 by the heirs of the American businessman and philanthropist J Roderick McArthur to defend the right to freedom of expression. The group’s name is derived from Article 19 of the Universal Declaration of Human Rights which reads:

“Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.”

Among the cases taken up by Article 19 have been the imprisonment by the apartheid regime of South African editor, Zwelakhe Sisulu who was eventually released after an Article 19 campaign; the publication of a critique of Israel’s regulation of the Palestinian press and a worldwide campaign, spearheaded by Article 19, to protect the writer Salman Rushdie from an Iranian-issued fatwa which threatened his life.

The three Irish-American groups include the Ancient Order of Hibernians which is the oldest and largest Irish group in America. It was founded in 1836 and has long been involved in charitable and community activities. The AOH supports the reunification of Ireland and encourages initiatives to protect civil rights in Northern Ireland. The Irish American Unity Conference (IAUC) is a non-party political group that advocates for civil rights and justice in Northern Ireland and for the peaceful reunification of Ireland through peaceful activity in America. The Brehon Law Society is a professional association that fosters the legal profession amongst those of Irish ancestry. Taking its name and inspiration from the body of ancient Celtic law, the Brehon Law Society fosters respect and support for civil rights, both in Northern Ireland and elsewhere in the world where there is such a need.

The social scientists are fourteen ranking academics from Indiana University-Purdue University Indianapolis; Indiana University, Bloomington, and Butler University, Indiana including Deans, Professors, Assistant & Associate Professors and Lecturers in Sociology and Law.

SUMMARY OF AMICI BRIEFS

REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS

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The REPORTERS COMMITTEE brief hits the core confusion over Branzburg, the hard-fought but landmark 1972 Supreme Court decision on reporters rights. While the 5-4 verdict ruled that reporters could not refuse to give evidence to a grand jury, the opinion of one concurring justice, Justice Lewis Powell suggested that reporters’ privilege can be considered on a case by case basis. The REPORTERS COMMITTEE brief is notable for the doubling down on the petition argument for case-specific analysis and noting the conspicuous failure of the Supreme Court to offer needed guidance on the reporter’s privilege. The proliferation of privilege approaches calls for clarification, while at the same time showing that a meaningful privilege can be developed and applied. The first section also shores up the important point that third-party possession of material does not destroy confidentiality.

QUOTES:

“The inability of journalists and academics to have their objections heard before a court regarding government-issued subpoenas seeking the compelled release of confidential information will certainly have a detrimental effect on their protected First Amendment interests. Regardless of whether they recognize a privilege preventing the compelled disclosure of such information, courts should have an obligation to review such claims of infringements on First Amendment rights on a case-by-case basis.”

“The First Circuit decision goes against a significant body of precedent that interprets this Court’s decision in Branzburg as providing the basis for a qualified privilege for not only journalists, but also academic researchers and anyone engaged in the process of gathering information for dissemination to the public.”

ARTICLE 19

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The ARTICLE 19 brief paints the Supreme Court as a national and international outlier in its failure to establish a clear standard of source protection as an incident of free expression. The First Circuit adds insult to injury by dispensing with universal tenets of due process in an international context. International tribunals recognize that the lack of source protection poses a special threat to reporters and researchers in conflict and post-conflict zones. The need for a factual record becomes clear in light of paramilitary activity at the time of the Belfast Project interviews and in the present day.

QUOTES:

“…… we explain why review is necessary to clarify the constitutional right to the protection of sources, particularly for journalists and researchers working internationally and in conflict and post- conflict societies. Case-specific evaluation of source protection claims is the norm, rather than the exception, among both individual states and the international community. The special concerns of journalists and researchers working internationally, particularly those working in conflict and post- conflict areas, demonstrate the need for First Amendment jurisprudence that respects and protects confidential sources and information, even where government officials proceed under an MLAT. To dismiss such a First Amendment challenge before it can be meaningfully asserted and examined unnecessarily exposes U.S. writers and researchers who carry on vital news-gathering activities, as well as the sources themselves, to violence and retaliation from abroad.”

IRISH-AMERICAN GROUPS

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The IA GROUPS brief includes some background on the conflict and the threat that the subpoenas pose to the peace process, calling the Court’s attention to the history of collusion and sectarianism among the police. It then digs into the First Circuit’s attempt to interpret the MLAT and section 3512, artfully challenging the unattractive conclusion that the new statute and MLAT combine to eliminate judicial review. Finally, it rebuts the separation of powers concern that treaty interpretation belongs to the executive, pointing out that “political crimes” are a justiciable issue in the extradition setting.

QUOTES:

“This Court’s review is imperative given the potential negative repercussions from the enforcement of the subpoenas at issue to the fragile peace process in Northern Ireland. The success of the 1998 Belfast Agreement remains uncertain, and its implementation is imperiled by the continuing atmosphere of mistrust and, specifically, the history of past collusion with loyalist paramilitary forces on the part of the Northern Ireland police. Given the recent history of the conflict, the enforcement of the subpoenas poses not only a risk of violent reprisals to the former participants in the Belfast Project, but also potentially undesirable consequences to the continuing process of reconciliation in Northern Ireland.”

SOCIAL SCIENTISTS

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The SOCIAL SCIENTISTS brief addresses the continuum of First Amendment interests that flow between journalists and researchers, which are undermined by the confusion of Branzburg. It goes on to highlight the additional important policies that favor the protection of academic research into conflict areas, and the nebulous state of First Amendment law as regards academic freedom.

QUOTES:

“Any social science or oral history research is threatened by the potential subpoena of confidential materials, including sensitive or personal information that may or may not involve illegal activity. The threat of unlimited subpoena power undermines the ability of any researcher to promise confidentiality and thus to obtain honest and reliable answers to the most pressing issues of our time………The court of appeals’ decision thus jeopardizes the long-term ability of scholars to gain information regarding profoundly sensitive and controversial subjects, including information that can help society avoid violent conflicts in the future.”

“The result in the case creates potentially crippling uncertainty for those who gather information from confidential sources, including academic researchers like amici. Such researchers need to be able to assure their sources that their confidentiality will be respected and their interests considered by a court of law before the court grants a subpoena and publicizes their private information or personal identity. Without such assurances, many persons will be unwilling to speak with researchers, limiting the scope of social science research and leaving irreparable lacunae in human knowledge.”

Brief Amicus Curiae of ARTICLE 19: Global Campaign for Free Expression in Support of Petitioners

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ABOUT ARTICLE 19

ARTICLE 19 envisages a world where people are free to speak their opinions, to participate in decision-making and to make informed choices about their lives

For this to be possible, people everywhere must be able to exercise their rights to freedom of expression and freedom of information. Without these rights, democracy, good governance and development cannot happen.

We take our name from Article 19 of the UDHR:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.”

HISTORY

ARTICLE 19 was founded in 1987.  We are registered and regulated in the UK (charity number 327421), Bangladesh, Brazil, Kenya, Mexico, Senegal, Tunisia and the USA.

American businessman and philanthropist J. Roderick MacArthur originally envisaged the founding of an organisation which would defend the right to freedom of expression. After MacArthur’s death in 1984, his children contacted New York civil liberties lawyer and former director of ACLU, Aryeh Neier: he commissioned Martin Ennals, a former director of Amnesty International to develop a proposal for a new organisation to be called ARTICLE 19. Kevin Boyle was appointed the first ARTICLE 19 executive director in 1987.

 

 

Reporters Committee asks U.S. Supreme Court to uphold the right to challenge subpoenas seeking confidential source information

Reporters Committee asks U.S. Supreme Court to uphold the right to challenge subpoenas seeking confidential source information
Press Release | December 20, 2012
WWW.RCFP.ORG

The Reporters Committee for Freedom of the Press has filed a friend-of-the-court brief with the U.S. Supreme court arguing that two Boston College researchers should be allowed to challenge federal government subpoenas seeking confidential information gleaned from interviews with members of the Irish Republican Army and others involved in the Northern Ireland “Troubles.”

The Court of Appeals for the First Circuit found that there is no privilege under the First Amendment that would allow the researchers to keep the interviews confidential when they are subpoenaed as part of a criminal investigation. The researchers had brought their own case against the government after their attempt to intervene in the subpoena action against Boston College had been denied, and the court found that they did not have a sufficient claim.

“The First Amendment interests at stake — the freedom to gather information for later dissemination to the public from confidential sources without government interference — is the same whether the government compels from petitioners the production of their confidential information or instead compels production of that information from third parties entrusted with its safe keeping,” the brief argues. “Those constitutionally protected speech interests are not diminished because the confidential information is entrusted to an outside party and deserve the same level of judicial review through the balancing of competing interests.”

The Reporters Committee brief argued that any challenge touching on First Amendment interests necessitates judicial review.

“There is significant precedent in the courts upholding journalists’ ability to protect their confidential sources, even if the information is housed by a third party,” said Reporters Committee Executive Director Bruce D. Brown. “What’s particularly troubling here is that the lower court simply shut down the opportunity to challenge the government subpoenas.”

The Reporters Committee brief in Moloney v. Holder is online.

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About the Reporters Committee for Freedom of the Press
Founded in 1970, the Reporters Committee for Freedom of the Press offers free legal support to thousands of working journalists and media lawyers each year. It is a leader in the fight against persistent efforts by government officials to impede the release of public information, whether by withholding documents or threatening reporters with jail. In addition to its 24/7 Legal Defense Hotline, the Reporters Committee conducts cutting-edge legal research, publishes handbooks and guides on media law issues, files frequent friend-of-the-court legal briefs and offers challenging fellowships and internships for young lawyers and journalists. For more information, go to www.rcfp.org, or follow us on Twitter @rcfp.

Related Reporters Committee resources:

· News: First Circuit hears oral argument in Boston College subpoenas case

“Friends” Join Supreme Court Appeal in British Subpoena Case: 1st Ever for Irish American Coalition

ANCIENT ORDER OF HIBERNIANS • BREHON LAW SOCIETY • IRISH AMERICAN UNITY CONFERENCE
New York City & Washington, D. C. December 20th

“FRIENDS” JOIN SUPREME COURT APPEAL IN BRITISH SUBPOENA CASE; 1ST EVER FOR COALITION
This relates to the opposition of Irish-American groups opposing the subpoenas of Attorney General Holder served on Boston College to obtain records from their Irish archives. We are supporting the petition for a Writ of Certiorari in the Supreme Court.

The major Irish-American organizations (‘the Coalition’) have formally joined the litigation battle to block Attorney General Holder’s subpoena of records sought by the British government in the Irish archives of Boston College. The coalition joins the Reporters Committee for Freedom of the Press, Article 19, a global campaign group to promote free expression, and 14 social scientist scholars filing as Amicus Curiae in support of the appeal to the U. S. Supreme Court.

Brendan Moore, National President of the Ancient Order of Hibernians, the nation’s oldest and largest Irish-Catholic organization, stated: “There is a case to answer as to why Attorney General Holder should honor any request from any government with a history of lawless killing and corruption by its police force. I hope the Supreme Court will take special note that it was an officer of the court in Northern Ireland, attorney Patrick Finucane, who was assassinated by security forces colluding with loyalist thugs.”

“It is important that the use of these Mutual Legal Assistance Treatys (MLATs),” noted National President of the IAUC Thomas Burke, “remain subject to judicial review.” He indicated the brief rebuts the idea that treaty interpretation is exclusively an executive prerogative, pointing out that under U. S. extradition treaties, cases involving political crimes are re-viewable by courts.

“We are grateful for the dedication and wisdom of Igor Timofeyev and his colleagues at Paul Hastings LLP in Washington,” stated Robert Dunne, President of the Brehon Law Society, “as well as the support of colleagues in the Snell & Wilmer (Phoenix, AZ), Bingham, McCutcheon (Boston, MA) law firms who have unselfishly collaborated to raise important constitutional issues posed by the UK’s misuse of the MLAT.”

The government chose not to respond to the Writ of Certiorari and whether the Supreme Court decides to accept the case could be decided any time.

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SAA Issues and Advocacy Roundtable: The Belfast Project

Society of American Archivists – Issues and Advocacy Roundtable: The Belfast Project
Christine Anne George
Blog Entry 5: The Belfast Project

Issues and Advocacy Roundtable

The Issues & Advocacy Roundtable tracks issues of importance to archivists and the archival community. The I&A Roundtable has a global mission and works with individuals at the local, national, and international level. The issues of importance include: tracking laws and legislation affecting archives, increasing diversity, increasing access for disabled researchers and archivists, advocacy for improving working conditions, maintaining wages and institutional budgets.

*** Items for Immediate Advocacy Action ***

Recent News & Announcements
Blog Entry 5: The Belfast Project

Greetings and Salutations. My name is Christine Anne George and I would like to bring an issue to your attention that I have been following as an information school student (who happened to have a legal background and interest in archives) and now as a fellow professional. Have you heard about the Belfast Project and the litigation surrounding it? The Belfast Project is an oral history collection stored at Boston College that contains interviews with paramilitaries involved in the Troubles in Northern Ireland. Participants were promised their interviews would remain sealed until either they gave permission or they died. Unfortunately, that promise of confidentiality could not hold up against a federal subpoena. Since May of 2011, the Police Service of Northern Ireland (PSNI) has been trying to obtain several interviews from the collection. Both Boston College and two of the men involved in gathering the interviews, Ed Moloney and Anthony McIntyre, have challenged the subpoenas. They went to the district court and then appealed to the First Circuit, but to no avail. Now, Moloney and McIntyre have a chance to appeal to the Supreme Court.

Throughout these litigation proceedings, archivists have been silent. This silence is a problem. The situation surrounding the Belfast Project is politically charged. There is no arguing that. Undoubtedly archivists have their own opinions as to how the situation should have been handled from the beginning. Whether or not you believe the interviews should be handed over to the PSNI is no longer the issue. There are far bigger problems to address involving education, both within and outside the profession. The first problem is current practice. Are you able to fully articulate to donors the risks of donating a collection and the extent to which access can be limited? Do you know how far your institution is willing to go in a legal battle over your collections? Certain aspects of the situation surrounding the Belfast Project are unique, but tweak the details a bit, and we could be talking about one of your collections. We need to be fully informed in order to offer the best protection to our institutions and our donors.

The second—and far more dangerous problem if we don’t get involved—involves educating those outside the profession. There is the chance that a judicial body that has no expertise in archival principles could be making law that will affect archives and archivists long into the future. If archivists aren’t speaking up, discussing what is going on with the Belfast Project, and considering how this collection is different from other collections, the results will be disastrous. This is our area of expertise. No one else will be able to talk about archival principles better than archivists.

Unfortunately the situation has progressed beyond a letter writing campaign. If the Supreme Court decides to hear the case, there are procedures for filing a brief. But the formalities should not limit the discussion. Just because you cannot address the Supreme Court directly doesn’t mean you can’t blog or tweet about this. Do you think there should be some form of archival privilege? Do you think that there’s a best way to explain an institution’s legal limitations to a donor who wants limited access? Speak up. Please. Because so far, the silence has been deafening.

Privilege and the Belfast Project

Privilege and the Belfast Project
by Will Havemann
J.D. Candidate 2013, Stanford Law School
Stanford Law Review
65 Stan. L. Rev. Online 79
December 5, 2012

PDF

In 2001, two Irish scholars living in the United States set out to compile the recollections of men and women involved in the decades-long conflict in Northern Ireland. The result was the Belfast Project, an oral history project housed at Boston College that collected interviews from many who were personally involved in the violent Northern Irish “Troubles.” To induce participants to document their memories for posterity, Belfast Project historians promised all those interviewed that the contents of their testimonials would remain confidential until they died.[1]

More than a decade later, this promise of confidentiality is at the heart of a legal dispute implicating the United States’ bilateral legal assistance treaty with the United Kingdom, the so-called academic’s privilege, and the First Amendment. In the summer of 2011, the U.S. Department of Justice (DOJ) issued subpoenas demanding that certain confidential interviews collected by the Belfast Project be turned over to federal prosecutors. The DOJ is pursuing these interviews in response to a request by the United Kingdom, which intends to use the subpoenaed material as evidence in a prosecution for murder. In July 2012, after an extraordinary legal battle, the First Circuit ordered Boston College to comply with the DOJ subpoenas. But on October 17, Justice Breyer stayed the First Circuit’s order pending the Supreme Court’s ruling on a petition for certiorari.[2]

The First Circuit’s judgment and the Supreme Court’s stay follow decades of uncertainty regarding the scope of the academic’s privilege—the disputed right of academics to protect information that was provided to them on the condition of confidentiality. If allowed to stand, the First Circuit’s decision threatens to confirm the worst fears of those who contend that the privilege is needed to preserve the Constitution’s guarantee of free speech in the American academy.

Jurisprudential Background

The academic’s privilege is one variant of the reporter’s privilege,[3] which has long been advanced to excuse journalists from disclosing the identities of their confidential sources. Proponents of the privilege argue that many potential sources will refuse to speak to reporters absent a guarantee of anonymity—either because they worry that speaking to the press will subject them to retaliation, or will implicate them in illegal acts. These proponents further contend that uninhibited communication between journalists and their sources benefits the democratic process by ensuring that the news is robustly reported. And so they conclude that a reporter’s privilege should be adopted to ensure that socially valuable communication between reporters and their sources won’t be deterred by the threat of compelled disclosure.[4]

American journalists have asserted the right to keep their sources privileged since the colonial period, and courts have rebuffed these assertions for just as long. Indeed, the reporter’s privilege has a distinguished legacy of rejection. No reporter’s privilege was recognized at common law or in the early United States.[5] In the mid-twentieth century, arguments regarding the privilege assumed constitutional dimensions. Advocates of the privilege contended that the First Amendment’s protection of freedom of the press should prevent the government from forcing journalists to disclose their confidential sources. The freedom to report the news, it was argued, must necessarily entail freedom to gather the news. The First Amendment must consequently prevent the government from interfering with journalists’ ability to communicate with sources who would refuse to speak to the press absent a guarantee of confidentiality.[6]

The Supreme Court squarely addressed this argument in Branzburg v. Hayes.[7] Branzburg was a consolidation of four cases involving reporters who refused to identify their confidential sources in response to grand jury subpoenas. Writing for a five-Justice majority, Justice White concluded that the government’s interest in law enforcement categorically outweighed any First Amendment interest in protecting journalists’ confidential sources.  Justice White rejected the argument that forcing journalists to testify about their sources would drive “‘a wedge of distrust and silence’” between the news media and its sources.[8] Noting that the press is routinely excluded from sensitive events such as Supreme Court conferences and grand jury proceedings, Justice White maintained that freedom of the press does not include the unrestrained right to gather information. According to Justice White, therefore, the press possesses no constitutional right to protect its sources from government subpoenas.

Justice Powell supplied the crucial fifth vote mandating compliance with the subpoenas, but he wrote separately to underscore what he understood to be the “limited nature” of the Court’s holding.[9] Justice Powell recognized that the First Amendment provides some protection for journalists’ confidential relationships. But he believed that in each case courts should balance the freedom of the press against the citizens’ obligation to testify about criminal conduct. Because Justice Powell would address each claim on a case-by-case basis, he rejected the dissent’s warning that the Court’s decision would permit the state to annex the news media as an “investigative arm of government.”[10]

Justice Powell’s quixotic concurrence in Branzburg left litigants unclear about whether a reporter’s confidential relationships are constitutionally protected, and, if so, how far this protection extends. After Branzburg, many states sought to clarify reporters’ rights by enacting shield laws expressly excusing reporters from complying with subpoenas to protect confidential sources.[11] But no such federal law exists, and in recent years the number of subpoenas issued to reporters by the DOJ has skyrocketed.[12] The vulnerability of reporters’ confidential relationships became front-page news in 2005, when Judith Miller, a reporter for the New York Times, spent eighty-five days in jail before finally revealing to a federal prosecutor the identity of the confidential source who outed Valerie Plame as a CIA operative (her source turned out to be Vice President Cheney’s Chief of Staff, Scooter Libby).[13] Today, seven years after the Plame scandal and forty years after Branzburg, the scope of the reporter’s privilege remains uncertain.

The Belfast Project Litigation

Soon after the Belfast Project was established at Boston College in 2001, British authorities learned that the Project had conducted interviews with two former IRA members, Brendan Hughes and Dolours Price, who were implicated in the 1972 abduction and execution of Jean McConville, a suspected British informant.[14] Pursuant to the Mutual Legal Assistance Treaty (MLAT) between the United States and the United Kingdom, British authorities sought to obtain these interviews. The United Kingdom asked the DOJ to subpoena Boston College for all materials relating to the Hughes and Price interviews in order to assist British officials in a prosecution for McConville’s murder.

The MLAT provides, among other things, that the United States and the United Kingdom will assist one another in “serving documents; locating or identifying persons; . . . [and] executing requests for searches and seizures.”[15] The United States is a party to a number of such treaties, which facilitate criminal investigations by permitting one country to request that another country issue subpoenas or locate suspects within its territory. But the treaty does not require compliance with MLAT requests in all circumstances. The MLAT excuses signatories from providing the requested assistance if doing so “would be contrary to important public policy” or if the request relates to an “offence of political character.”[16]

The DOJ chose not to decline Britain’s request on either ground. Instead, the DOJ issued subpoenas in May and August 2011 demanding all materials related to the Hughes and Price interviews. Because Brendan Hughes had died by the time the subpoenas were issued, Boston College turned over the Hughes interviews. But it refused to release the interviews of Dolours Price. In a motion to quash the subpoenas, Boston College insisted that its guarantee of confidentiality was protected under the First Amendment, and that the interviews were therefore privileged from disclosure.

In July 2012, the First Circuit rejected the motion to quash. Writing for the court, Chief Judge Lynch concluded that, under Justice White’s Branzburg opinion, the fact that compliance with subpoenas “would result in the breaking of a promise of confidentiality by reporters is not by itself a legally cognizable First Amendment” injury.[17] Disregarding Justice Powell’s approach, Judge Lynch declined to balance the government’s interest in the subpoenas with Boston College’s interest in confidentiality. Instead, she suggested that the law enforcement interest at issue here might be stronger than the government’s interest in Branzburg itself, and that Boston College only had itself to blame for promising its interviewees confidentiality that was not supported by United States law.

The subpoenas and the subsequent litigation prompted broad news coverage and a minor international scandal. Senator John Kerry penned a letter urging Secretary of State Clinton to encourage British authorities to revoke their request due to the “impact that it may have on the continued success of the Northern Ireland peace process.”[18] Free speech groups and oral historians argued that the subpoenas would “have an incredible chilling effect” on endeavors to document modern conflicts.[19] And, after Boston College chose not to appeal the trial judge’s initial denial of the motion to quash, the ACLU of Massachusetts filed an amicus brief strenuously defending the Belfast Project from compelled disclosure.

On October 17, Justice Breyer issued an order staying the First Circuit’s decision until the Supreme Court rules on the Belfast Project’s petition for certiorari. The stay order excuses Boston College from turning over the disputed interviews until the Supreme Court decides the case or denies the certiorari petition later this Term.

A Balanced Approach

The First Circuit may have ultimately reached the correct result, but it unquestionably took the wrong approach to get there. The First Amendment must afford some protection against attempts by the state to advance criminal prosecutions by commandeering reporters’ promises of confidentiality. Holding otherwise would disavow the principle that freedom of the press depends upon some heightened protection for seeking out the news.

Applying Justice Powell’s balancing approach in this case yields no obvious answer, but reasonable judges could certainly conclude that the costs of complying with the subpoena outweigh the government’s interest in enforcing it. Of course, the United States has an uncontestable interest in complying with MLAT requests. This interest arises not just from the desire to maintain comity with the United Kingdom, but also the need to safeguard the valuable reciprocal rights conferred by the MLAT to the United States. Further, the Belfast Project interviews may be the only source of information about McConville’s murder. But the United States’ interest is double-edged. The government also has an interest in protecting political dissidents from prosecution by the nation they fled. And, as Senator Kerry’s letter articulates, the United States has an enduring interest in ensuring the success of the Northern Irish reconciliation process. The MLAT itself recognizes that signatories may deny requests that relate to a crime of a political nature or that would undermine public policy. And because American law has long subjected treaty obligations to constitutional safeguards, an MLAT request must be denied if compliance would be unconstitutional.[20]

On the other hand, the Belfast Project’s countervailing interests are compelling. Boston College has warned that releasing the tapes could threaten the safety of the participants. Moreover, the subpoenas could seriously undermine the enterprises of journalism and oral history. Indeed, if the government may subpoena confidential information subject to virtually no judicial scrutiny, the likely result will not be that the criminal justice system benefits, but that fewer people involved in potentially illegal conduct opt to speak to the press in the first place. That result would be unfortunate. Many events of profound historical importance—not just violent conflicts like the Northern Irish Troubles, but nonviolent movements such as the Civil Rights movement—could have exposed participants to criminal liability. If participants keep silent about their experiences, the historical record and public dialogue will suffer, with no commensurate benefit to law enforcement.

Mutual legal assistance treaties render this problem international in scope. If any country with whom the United States has an MLAT agreement may require the DOJ to subpoena confidential information on its behalf, endeavors like the Belfast Project could be annexed by foreign governments whose criminal justice interests differ substantially from our own.

Conclusion

Given the confusion sown by Branzburg’s fractured opinion, the First Circuit’s hardnosed decision is unsurprising. But by disavowing the balancing approach recommended in Justice Powell’s concurring Branzburg opinion, and by overlooking the considerable interests supporting the Belfast Project’s confidentiality guarantee, the First Circuit erred both as a matter of precedent and of policy. At least one Supreme Court Justice has signaled a willingness to correct the mischief done by the First Circuit, and to clarify an area of First Amendment law where the Court’s guidance is sorely needed. The rest of the Court should take note.

1. Jim Dwyer, Secret Archive of Ulster Troubles Faces Subpoena, N.Y. Times (May 13, 2011), http://www.nytimes.com/2011/05/13/world/europe/13ireland.html.
2. See Robert M. O’Neil, A Researcher’s Privilege: Does Any Hope Remain?, 59 Law & Contemp. Probs. 35, 37, 44 (1996).
3. Moloney v. United States, 133 S.Ct. 9, staying In re Request from U.K. Pursuant to Treaty Between Gov’t of U.S. & Gov’t of U.K. on Mutual Assistance in Criminal Matters, 685 F.3d 1 (1st Cir. 2012); see also Lyle Denniston, British Subpoenas Blocked, ScotusBlog (Oct. 17, 2012, 1:26 PM), >a href=”http://www.scotusblog.com/2012/10/british-subpoenas-blocked/”>http://www.scotusblog.com/2012/10/british-subpoenas-blocked/.
4. See Geoffrey R. Stone, Why We Need a Federal Reporter’s Privilege, 34 Hofstra L. Rev. 39, 39 (2005) (“A strong and effective journalist-source privilege is essential to a robust and independent press and to a well-functioning democratic society.”).
5. See Branzburg v. Hayes, 408 U.S. 665, 685 (1972); Mary-Rose Papandrea, Citizen Journalism and the Reporter’s Privilege, 91 Minn. L. Rev. 515, 533 (2007) (summarizing the history of the reporter’s privilege in the United States).
6. See Garland v. Torre, 259 F.2d 545, 548 (2d Cir. 1958) (accepting the argument that “compulsory disclosure of a journalist’s confidential sources of information may entail an abridgment of press freedom by imposing some limitation upon the availability of news”).
7. 408 U.S. 665, 666-67 (1972).
8. Id. at 676 (quoting the respondent’s argument in favor of a reporter’s privilege); see also id. at 698-99 (concluding that the public’s interest in protecting confidential sources does not outweigh its interest in prosecuting criminal activity, particularly given that the absence of a reporter’s privilege had not proven to be a “serious obstacle to either the development or retention of confidential news sources by the press”).
9. Id. at 709 (Powell, J., concurring).
10. Id. at 725 (Stewart, J., dissenting).
11. See, e.g., Cal. Evid. Code § 1070(a) (West 2012); Colo. Rev. Stat. § 13-90-119 (2012).
12. Papandrea, supra note 5, at 516 (“Over the last few years, the number of subpoenas issued to journalists has risen dramatically.”).
13. Don Van Natta Jr. et al., The Miller Case: A Notebook, a Cause, a Jail Cell, and a Deal, N.Y. Times, Oct. 16 2005, at 1, available at http://www.nytimes.com/2005/10/16/national/16leak.html.
14. Travis Andersen, BC Is Ordered to Turn Over IRA Materials, Bos. Globe (Dec. 29, 2011), available at http://www.bostonglobe.com/metro/2011/12/29/judge-orders-turn-over-recordings-ira-member-federal-prosecutors/8V4ZjGgOWV1Dz3000c6VNL/story.html.
15. Mutual Legal Assistance Treaty, U.S.-U.K., art. I, ¶ 2, Jan. 6, 1994, S. Treaty Doc. No. 104-2 (1995), available at http://www.state.gov/documents/organization/176269.pdf [hereinafter MLAT].
16. MLAT, art. III, ¶ 1(a), (c).
17. See In re Request from U.K. Pursuant to Treaty Between the Gov’t of U.S.  &  Gov’t of U.K. on Mutual Assistance in Criminal Matters, 685 F.3d 1, 16 (1st Cir. 2012).
18. Letter from John Kerry, U.S. Senator, to Hillary Clinton, U.S. Sec’y of State (Jan. 23, 2012), available at https://bostoncollegesubpoena.wordpress.com/2012/01/25/senator-john-kerrys-letter-to-secretary-of-state-hillary-clinton/.
19. Katie Zezima, College Fights Subpoena of Interviews Tied to I.R.A., N.Y. Times (June 9, 2011), http://www.nytimes.com/2011/06/10/us/10irish.html.
20. See Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 416 n.9 (2003) (noting that treaty obligations are subject “to the Constitution’s guarantees of individual rights”).