“Do the right thing”, Irish American Coalition asks Secretary of State Kerry

ANCIENT ORDER OF HIBERNIANS • BREHON LAW SOCIETY • IRISH AMERICAN UNITY CONFERENCE

March 20, 2013

Honorable John Kerry
Secretary of State
Office of the Secretary
U. S. State Department
2201 C Street, NW, 7th Floor
Washington, D. C. 20520

Dear Secretary Kerry:

We are following up on our previous letter of February 7th in which we seek an opportunity to meet with you to discuss our concerns with British government misuse of the U.S.-U.K. Mutual Legal Assistance Treaty (MLAT) in the case of the Boston College subpoenas. You will recall that in our conference call in January, 2012, you indicated you spoke with the Attorney General who at the time assured you that no documents secured as a result of the subpoenas would be turned over to England without him first speaking with you. Mr. Holder has chosen not to communicate at all on this matter except to indicate through subordinates that the matter is currently in litigation.

Now as Secretary of State you have the duty, the statutory obligation, to consult with Attorney General Holder if you have concerns about those subpoenas that would compromise American values and undermine those U.S. policies in support of the 1998 Good Friday Agreement. You indicated as much in your letter to former Secretary Clinton. However, you had the additional experience of listening to British representatives assure the U.S. Senate during ratification of the U.S.-U.K. Extradition Treaty that it was not their objective to pursue prosecutions pre-1998. This combined with their failure to comply with the Treaty obligation to provide a public inquiry into their admitted murder of attorney Patrick Finucane renders the credibility of the United Kingdom in this matter untrustworthy.

This is an American issue where our laws are being violated and our policies being undermined. We feel we have time and again identified the specific ways in which this is being done but would be willing to sit down again to make those arguments. The British government has publicly claimed in NYC that it had nothing to do with the subpoenas but the Home Office processed them. Home Secretary May is fully aware that the instigator of the request is a former Royal Ulster Constabulary commander with links to the much discredited Special Branch and to MI-5, the service that admittedly was involved in the conspiracy to murder Patrick Finucane. Isn’t anyone in the Department of State connecting the dots?? Isn’t it enough that the subpoena request has NOTHING to do with the purposes of MLAT as explained by Ms. Warlow of your Department to the Senate during that treaty’s adoption?

We deeply appreciate the principled stand that you took in opposing these subpoenas not alone as a misuse of MLAT but for the threats posed to academic integrity and to constitutional freedoms. Everything that has been learned about these scurrilous subpoenas since has confirmed your worst fears! We ask again that you take the necessary action to affirm America’s support for the Irish peace process, to uphold the MLAT obligations of a Secretary of State and to not compromise our values of justice and respect for the rule of law.

We stand at the ready to meet with you and your staff at any time to insure that the U.S. “does the right thing.”

Sincerely,

Mr. Brendan Moore
National President
Ancient Order of Hibernians

Mr. Robert Dunne, Esq.
President
Brehon Law Society

Mr. Thomas J. Burke Jr. Esq.
National President
Irish American Unity Conference

 

Lawyers Appeal to Attorney General Holder on Boston College subpoena case

LAWYERS MAKE ST. PATRICK’S DAY APPEAL TO ATTORNEY GENERAL HOLDER; FINUCANE STIRS CONSCIENCE OF NATION
ANCIENT ORDER OF HIBERNIANS • BREHON LAW SOCIETY • IRISH AMERICAN UNITY CONFERENCE
March 18th
NYC, Wash, D. C., Denver & Boston

Lawyers long experienced with the Irish conflict made a dramatic St Patrick’s Day appeal to U. S. Attorney General Holder to re-examine Britain’s use of a U.S.-U.K. Mutual Legal Assistance Treaty (MLAT) in light of the its failure to conduct a public inquiry into the murder of civil and human rights attorney Patrick Finucane. The public hearing was a legal obligation stipulated in the 1998 Irish peace pact (the Good Friday Agreement), a Treaty registered with the United Nations.

Mr. Brendan Moore, National President of the Ancient Order of Hibernians explained: “The Attorney General is the chief law enforcement officer of a nation founded on the principle of the rule of law. It cannot be business as usual with the United Kingdom whose public record of lying and lawlessness has left generations of Catholics living in N.I. without truth or justice.”

“American support for the Irish peace process,” stated Thomas J. Burke Jr. Esq., National President of the Irish American Unity Conference, “has been mocked by Britain’s ignoring the justice provisions of the pact which also included obligations on the Dublin-Monaghan bombings by members of the British Army and a re-examination of the murders of 800 Catholics for police and security forces collusion. What kind of message do we send to other nations when we give a pass to England on its Treaty obligations?

Stated Sean Downes, President of the Brehon Law Society: “Attorney General Holder must act as the conscience of the country and weigh the failures of Britain in the Finucane inquiry with their demands in other areas e.g. processing their subpoenas to conduct a political fishing expedition into the Irish archives of Boston College.”


ANCIENT ORDER OF HIBERNIANS
BREHON LAW SOCIETY
IRISH AMERICAN UNITY CONFERENCE

March 17, 2013

Honorable Eric H. Holder Jr.
Attorney General
U. S. Department of Justice
950 Pennsylvania Ave NW, Rm. 5115
Washington, D. C. 20530

Dear Attorney General Holder:

This letter is to call your attention to a matter of deep concern to us as lawyers, which we believe should be considered as the Justice Department processes subpoenas issued to Boston College for records contained in its Irish archives. The subpoenas have been requested by Britain under the terms of the US-UK Mutual Legal Assistance Treaty (“MLAT”). The issue of the validity of the subpoenas is currently in litigation and the subject of a Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit, Sup. Ct. No. No. 12-627.

In particular, in considering its position with respect to the subpoenas, we believe that the Justice Department must take into account that the requesting nation has steadfastly refused to conduct a public inquiry into the murder of civil rights lawyer Patrick Finucane, contrary to the terms of the 1998 Good Friday Agreement between Ireland and the U.K. As you are undoubtedly aware, Mr. Finucane was assassinated in 1989, in front of his family during Sunday dinner, in an attempt to intimidate those who may seek justice from the government of the U.K. Many of us worked with Patrick, and many others were familiar with his exemplary work defending clients in his position as an officer of Her Majesty’s court in Northern Ireland. British Prime Minister David Cameron has admitted that the police, military and intelligence services all conspired to murder Mr. Finucane. Yet, in October 2011, Mr. Cameron inexplicably informed Mr. Finucane’s widow and family that the U.K. government would not conduct a public inquiry into his murder. We believe this refusal was and remains in violation of the Good Friday Agreement and the terms of the Weston Park Agreement.

As you perform your statutory duties and fulfill your obligations under the MLAT, we urge that you weigh carefully the questionable conduct of Great Britain unilaterally deciding to not meet its obligations under the Good Friday Agreement. This raises a serious concern as to whether this was done to insure that those responsible would not be held accountable for Mr. Finucane’s murder.

We appeal to you not only as our country’s chief law enforcement officer but also as a lawyer who shares with us a deep commitment to civil rights, justice, and due process of law. We ask that you ensure that the U.S. judicial process not be used to actively aid a nation which will not hold accountable the murderers of an officer of the court . We hope that you will follow the views of Secretary of State John Kerry on the importance of avoiding the U.K.’s abuse of the MLAT in the Boston College subpoena case.

Respectfully yours,

Thomas J. Burke Jr. Esq. CO
National President
IAUC

Francis Boyle Esq., Professor ILL
School of Law
University of Illinois

James J. Cotter III Esq. MA

James P. Cullen Esq. NY
Brigadier General JAG (Retired)

John Dearie Esq. NY
Former Member
NYS Assembly

Sean J. Downes Esq. President
Brehon Law Society

Albert Doyle Esq. FL
Former Counsel
Texaco

Robert Dunne Esq. NY
Past President
Brehon Law Society

John Philip Foley Esq. MA

Thomas Fox Esq. NY

Martin Galvin Esq. NY
AOH Div. #5 President Bx

Martin Glennon Esq. NY

Peter Kissel Esq. MD
Chair, Human Rights, IAUC

Thomas A. Lambert Esq. NY
President, AOH Div. #1, Erie CO

Richard Lawler Esq. CT
Vice-Chair
Irish Northern Aid Committee

Edmund E. Lynch Esq. MD
Chairman
Lawyers Alliance for Justice

Stephen McCabe NY
Member, Brehon Law Society

Edward G. McCormick Esq. MA

William McNally Esq. MA

L. James Miller Esq. MA

Sean P. Moynihan Esq. MA

Jessica O’Kane Esq., MD
Member, Brehon Law Society

Judge Andrew L. Somers Esq. Retired WI
Past National President, IAUC

Patrick Sturdy Esq. MI
National Counsel, AOH

Boston College Supreme Court case: Brief for the United States in Opposition

No. 12-627
In the Supreme Court of the United States

ED MOLONEY AND ANTHONY MCINTYRE, PETITIONERS
v.
UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DONALD B. VERRILLI, JR.
Solicitor General
Counsel of Record
MYTHILI RAMAN
Acting Assistant Attorney General
DAVID M. LIEBERMAN
Attorney

Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217


QUESTIONS PRESENTED
1. Whether petitioners had an adequate opportunity to be heard on their First Amendment objections to subpoenas issued in support of a criminal investigation in the United Kingdom, when the lower courts considered and dismissed their claims on the merits.
2. Whether a court deciding whether to quash a law-enforcement subpoena issued pursuant to a mutual legal assistance treaty and 18 U.S.C. 3512 (Supp. V 2011)must consider the same specific discretionary factors applicable to a general foreign discovery request under28 U.S.C. 1782(a)

No Sanctuary in the Ivory Tower

No Sanctuary in the Ivory Tower
Why didn’t MIT defend Aaron Swartz?
BY CHRIS LEHMANN
In These Times
FEBRUARY 26, 2013
University administrators, eager to kowtow to their federal paymasters, become surrogate enforcers rather than principled defenders of academic freedom.

When Aaron Swartz took his own life with the approach of trumped up legal proceedings of evidence poised to threaten his freedom, he became a national symbol of two notorious failings of our legal system: federal prosecutors who, with an eye on their conviction scorecard, overcharge cases and bully defendants into submission; and the enforcement of proprietary computer terms-of-service agreements as if they were the republic’s first line of defense against mass sedition.

But the Swartz case brought home a third failing: the abject capitulation of MIT to the dictates of the U.S. attorney’s office. In 2011, Swartz used MIT’s computer system to access the proprietary academic-research site JSTOR, and thereby briefly liberated more than 4 million journal articles from behind the site’s paywall. MIT administrators meekly permitted federal prosecutors access to Swartz and his computer, without benefit of a search warrant. And after JSTOR declined to press charges in Swartz’s low-stakes hacking case, MIT chose to remain a complainant in the take-no-prisoners prosecution mounted by U.S. Attorney Carmen Ortiz, who multiplied the counts against Swartz until he was looking at as many as 50 years in federal prison.

MIT’s role is puzzling given its long history as one of the nation’s chief progenitors of hacker culture. It allowed Richard Stallman, the programmer who essentially founded the free software movement, to use an office on campus as his operating base (and at times, reportedly, as his home). As the Swartz case demonstrates, universities that were once deemed preserves of cultural dissent and nonconformity, these days reflexively knuckle under to the powerful enforcing—and funding arms of the federal government.

“This seems to be another piece of evidence that we in major universities look toward Washington before we make a decision about, say, some young oddball who’s hooked his computer to our wiring,” says Harry Lewis, a Harvard computer science professor who was also Harvard’s undergraduate dean from 1995 to 2003. “We have so many entanglements: Pell grants, research funding, undocumented students we have on our campuses,” says Lewis. “So we’re always looking over our shoulder.”

To see how deep-seated this trend is, one need only look across town, to Boston College, where from 2001 to 2006 Irish historian Ed Moloney directed an oral history project, collecting interviews with former members of the Irish Republican Army about the group’s past terrorism campaigns. Guarantees of confidentiality were central to the project, for obvious reasons. But in 2011, Northern Ireland prosecutors issued subpoenas for Moloney’s interviews—subpoenas that the Department of Justice summarily dropped on BC.

BC did hire lawyers to fight the subpoenas (after Moloney leaked the story to the New York Times), but rather than defend academic freedom, the college pursued a narrower stay on the release of some of the interviews. This left Moloney and his collaborators to file their own broader appeal to the Supreme Court, which will hear arguments later this year.

Says Moloney: “When we sought amici briefs for our SCOTUS case we had no difficulties attracting journalistic and media organizations … but U.S. academe ran screaming for the shadows.” And in late January, the BC case took its own eerie Swartz-like turn: Dolours Price, the former IRA member in Moloney’s project whose participation originally roused the interest of Irish authorities, had died of an apparent drug overdose.

Laid side by side, these two Boston-area cases point to eerily similar trends: Inquisitorial federal prosecutors, operating under loose interpretations of the mandate to combat terrorism, are prepared to run roughshod over protocols that protect the traditions of academic autonomy and free inquiry—while university administrators, eager to kowtow to their federal paymasters, become surrogate enforcers rather than principled defenders of academic freedom.

Aaron Swartz’s legacy might well produce important gains in the struggle to expand the free play of information into a significantly enlarged public sphere. But in institutional terms, the cases of MIT and Boston College suggest the struggle has already been fought—and lost.


ABOUT THIS AUTHOR
Chris Lehmann, a contributing editor of In These Times, is an editor of Book Forum and the Baffler and the author of Rich People Things (Haymarket, 2011). He is now working on a book about American religion and the money culture.

Moloney & McIntyre on US Government’s Decision To Pursue BC Archive Despite Death Of Dolours Price

Press Statement From Ed Moloney & Anthony McIntyre On US Government’s Decision To Pursue BC Archive Despite Death Of Dolours Price:

“We are not parties to the appeal which Boston College has brought to the First Circuit Court of Appeals (Docket number 12-1236), but our case before the Supreme Court of the United States argues that we are entitled to be heard on these matters which involve the First Amendment rights of academics and journalists to the confidentiality of sources and materials in opposition to subpoenas issued on behalf of foreign law enforcement agencies.

The Government yesterday has admitted that Boston College’s appeal “continues to present a live controversy” in spite of the death of Dolours Price, whose public remarks were presented as the excuse by foreign law enforcement agencies to raid a confidential academic archive housed at Boston College.

The irony is not lost on us that the government subpoenas remain under seal, and the basis of its actions shielded from public scrutiny.

We will continue to press ahead with our petition to the Supreme Court for a writ of certiorari, and we will keep a watchful eye on developments in the Boston College appeal as they unfold.”

Government’s Opposition to Boston College’s Motion to Dismiss

GOVERNMENT’S OPPOSITION TO BOSTON COLLEGE’S MOTION TO DISMISS ITS APPEAL AS MOOT

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
Appeal No. 12-1236
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 OF AMERICA,
Petitioner-Appellee
v.
TRUSTEES OF BOSTON COLLEGE, ET AL.,
Movants-Appellants

GOVERNMENT’S OPPOSITION TO BOSTON COLLEGE’S MOTION TO DISMISS ITS APPEAL AS MOOT

“On January 28, 2013, Boston College filed a Notice of Suggestion of Death informing the Court of the death of Dolours Price. In the Notice, Boston College stated, without developed argument, that Price’s death required that the district court order appealed from be vacated and the appeal dismissed as moot. That claim is meritless. Price’s death does not undercut the validity of the district court’s order requiring Boston College to provide certain documents to the government in response to subpoenas issued by the United States pursuant to the Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland on Mutual Legal Assistance in Criminal Matters (“the US-UK MLAT”). As a result, Boston College’s appeal from that order continues to present a live controversy.”

Relevant Background

In moving to dismiss, Boston College does not dispute the facts set forth in prior filings in this appeal and in this Court’s decision affirming other orders granted in the same matter, In re: Request from the United States 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 (“In re: Request”), 685 F.3d 1 (1 Cir. st 2012), petition for cert. filed, 81 USLW 3336 (Nov. 16, 2012) (12-627). As set forth therein,1 the relevant facts are as
follows.

On March 30, 2011, the United States submitted an application, ex parte and under seal, for the appointment of a Commissioner “to collect evidence from witnesses and to take such other action as necessary to effectuate a request from law enforcement authorities in the United Kingdom.” In re: Request, 685 F.3d at 6. “The application resulted from a formal request made by the United Kingdom . . . for assistance in a pending criminal investigation in that country involving the 1972 murder and kidnapping of Jean McConville.” Id. The district court subsequently entered an order granting the appointment. Id.

The Commissioner issued two sets of subpoenas to Boston College and its personnel pursuant to this appointment seeking interviews collected as part of the so called “Belfast Project.” Id. The first subpoenas sought interviews conducted with Brendan Hughes and Dolours Price. Id. Boston College turned over the Hughes materials but not those of Price. Id. The second set of subpoenas, issued in August 2011, more broadly sought recordings of “any and all interviews containing information about the abduction and death of Mrs. Jean McConville.” Id. at 6-7.

Boston College sought to quash both sets of subpoenas, arguing, among other things, that the Belfast Project materials should be protected as confidential academic research materials, that disclosure of the materials would have a chilling effect on future oral history projects, and that it would expose the interviewers involved in the project to possible retaliation. [Add.8, 34; JA:54-57; see also D.5, 12]. Boston College also requested, in the alternative, that the district court (Young, J.) undertake an in camera review of the documents to determine their responsiveness to the subpoenas. [D.5]. On December 16, 2011, the district court issued a memorandum and order denying Boston College’s motions to quash, but granting the request for in camera review. [Add.48]. Boston College did not appeal from the December 16, 2011 memorandum and order. In re: Request, 685 F.3d at 8.

Although Boston College did not appeal from the denial of its motions to quash, it continued to litigate the question of what documents should be produced in response to the subpoenas. In this litigation, Boston College did not argue, based on the caption of the case or any other ground, that the subpoenas were improper to the extent they sought information other than that implicating Price personally. Boston College argued, instead, that, in light of First Amendment concerns, the district court should screen the documents for relevance to the McConville abduction and murder. [JA:192]. The government, in turn, argued that the subpoenas should be construed broadly and submitted ex parte materials in support of that position. [JA:155; S.App.6-14].

On December 27, 2011, the district court issued an order requiring Boston College to turn over the Price materials in their entirety, which Boston College did not appeal. [D.38]. On January 20, 2012, the court issued a Findings and Order addressing the August subpoena, ordering the production of the full sets of interviews from five interviewees and individual interviews from two others. [Add.51-55]. Boston College appealed from this order, arguing generally that the district court abused its discretion in ordering the production of documents without requiring that they be “directly relevant” to the McConville abduction. [See Br.39]. Boston College did not argue that the scope of production should be further limited to those documents implicating Price personally in the abduction.

ARGUMENT

I. THE DEATH OF DOLOURS PRICE DOES NOT INVALIDATE THE DISTRICT COURT’S ORDER AND, THUS, DOES NOT MOOT THIS APPEAL.

“An appeal becomes moot if an intervening event strips the parties of any legally cognizable interest in its outcome.” Connectu LLC v Zuckerberg, 522 F.3d 82, 88 (1 Cir. 2008). Where a party moves st to dismiss an appeal on grounds of mootness, “[t]he burden of establishing mootness rests with the party urging dismissal,” and that burden, the Court has emphasized, “is a heavy one.” Id.

In its Notice, Boston College does not advance any developed argument as to why Price’s death renders this appeal moot. Instead, it merely presents a series of brief factual statements accompanied by the conclusory claim that these statements “mean” that Price’s death deprives the government of any right to obtain the documents that are the subject of this appeal. [Notice ¶¶1-5]. Such a skeletal argument would ordinarily be deemed waived, see United States v. Zannino, 895 F.2d 1, 17 (1990) (noting the “settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by developed argumentation, are deemed waived”), but, because the argument in theory raises a question of this Court’s authority to hear the appeal, a response to the substance of Boston College’s argument is warranted. See Connectu, 522 F.3d at 88 (“Because the inquiry into whether an appeal has become moot implicates a foundational question, sound practice dictates that we give that inquiry priority and conduct it as a threshold matter.”). As explained below, the argument is meritless.

Boston College’s argument for mootness rests on two propositions. First, Boston College contends that the caption assigned to the case in the district court demonstrates that the subpoenas were intended only to obtain information that could be used to prosecute Price herself. [Notice ¶¶1, 5]. Second, Boston College contends that, because Price is dead and cannot be prosecuted, the US-UK MLAT cannot support a request for legal assistance, because it provides that legal assistance is “not . . . available for matters in which the administrative authority anticipates that no
prosecution or referral, as applicable, will take place.” [Notice ¶3]. Both propositions are mistaken.

Boston College’s claim that the case caption shows that the government’s requests only sought evidence against Price personally is at odds with the record and, indeed, with Boston College’s own litigating position in the district court and on appeal. Nothing in the subpoenas themselves supports such a limited reading – the subpoenas that are the subject of this appeal broadly requested materials relating to “any and all interviews containing information about the abduction and death of Mrs. Jean McConville,” which very well might include interviews implicating persons other than Price in McConville’s death. [Add.4]. Nor do the proceedings in the case indicate that the district court or any party believed that the subpoenas or the investigation should be construed so narrowly. To the contrary, statements by the district court and the parties reflect that it was understood that the subpoenas generally sought, at the least, all documents relevant to the investigation of McConville’s death, not merely those that might implicate Price. [See, e.g. JA:143-45 (discussion of process and search terms that could determine what materials related to McConville), 153-55 (same)]. The only area of dispute was to what extent the request extended to materials that did not directly address the McConville murder. [See, e.g., JA:191-92].

This understanding of the scope of information sought is reflected in this Court’s opinion in In re: Request, see 685 F.3d at 3 (noting that the subpoenas were “part of an investigation . . . into the 1972 abduction and death of Jean McConville” and that the second set of subpoenas “sought any information related to the death or abduction of McConville”) (emphasis added), and was not challenged by Boston College in this appeal. [See Br.34 (arguing only that the district court used the “wrong test” in determining what documents should be disclosed in response to subpoenas “seek[ing] information about the abduction or death of Jean McConville”)]. It is also confirmed by the ex parte documents filed by the government in the case, which establish beyond dispute that the request for assistance and the government’s application in the district court were not limited to a search for documents bearing on Price’s personal culpability. [See generally D.2 & Exhibits;
see also S.App.3-4]. Against this backdrop, Boston College’s claim that this Court should infer a narrower scope of the investigation based merely on the district court caption is untenable.

Because the investigation was not limited to seeking materials for the purpose of prosecuting Price, Boston College’s treaty-based argument, which relies on that mistaken premise, cannot succeed. In any event, this argument also fails on the merits, for two reasons. First, the treaty provision on which Boston College relies is not, in fact, implicated in this case. The request in this case was made pursuant to Article 1 of the US-UK MLAT, which, in conjunction with Article 19, provides that “Parties shall provide for mutual legal assistance . . . for the purpose of proceedings”
that include “any measure or step taken in connection with the investigation or prosecution of criminal offenses.” See US-UK MLAT, Arts. 1, 19. Article 1bis expands the obligation to provide assistance under Article 1 to include instances where assistance is requested by a “national administrative authority,” but limits this expanded authority to circumstances where the administrative authority is conducting an investigation “with a view to a criminal prosecution” or a referral to investigation or prosecution authorities. See US-UK MLAT Art.1, §1bis. That provision, and its
limitations, does not apply here. [See D.2, p.1].

Second, as this Court affirmed in In re: Request, the US-UK MLAT by express terms precludes a private party from refusing to comply with a request for production of documents on the ground that the requirements of the treaty have not been followed. See 685 F.3d at 12-13. Thus, even if Price’s death did call into question whether the United States was still required to provide the documents to the UK pursuant to the treaty, which it does not, that would not absolve Boston College of its obligation to provide the documents to the United States and this appeal would remain viable.

In light of the above, Boston College has not met its burden of establishing that the government has no “legally cognizable interest in the outcome” of this appeal. Connectu LLC, 522 F.3d at 88. To the contrary, the government is entitled to enforcement of its subpoenas as provided for in the district court’s order. Thus, unless Boston College wishes to simply comply with that order, the appeal presents a live case or controversy and is not moot.

CONCLUSION

For the foregoing reasons, the government respectfully requests that Boston College’s motion to dismiss its appeal as moot be denied.

Respectfully submitted,
CARMEN M. ORTIZ
United States Attorney
By: /s/ Randall E. Kromm
RANDALL E. KROMM
Assistant U.S. Attorney

1Citations are as follows. The citation “[Notice ¶_]” refers to Boston College’s Notice of Suggestion of Death. The citations “[Br._],” “[Add._],” and “[JA:_]” refer, respectively, to Boston College’s brief, addendum, and joint appendix. The citation “[S.App._]” refers to the ex parte supplemental appendix filed by the government. The citation “[D._]” refers to a docket entry in the district court case.

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.

Boston College Subpoena Case: Request for Senate Hearings Made

ANCIENT ORDER OF HIBERNIANS
BREHON LAW SOCIETY
IRISH AMERICAN UNITY CONFERENCE

AOH, IAUC & BREHONS CALL FOR HALT TO HOLDER SUBPOENAS & BRITISH MEDDLING

SENATE HEARING REQUESTED

The fight to stop the enforcement of the Holder subpoena of tapes from the Irish archives of Boston College has reached a pivotal point. Despite the serious constitutional issues raised in litigation by Moloney & McIntyre and our specific public policy justifications for NOT processing the subpoenas, the Attorney General appears poised to ignore both and fan the flames of dissent to the Irish peace process.

Brendan Moore, National President of the Ancient Order of Hibernians (AOH), stated: “We strongly reject this unprecedented abuse of the Mutual Legal Assistance Treaty (MLAT) to maliciously meddle in the affairs of the U. S. and Ireland.” In 14 months the Attorney General has ignored the failure of the U. K. to justify use of this Treaty and has failed to recognize the real harm done to the Office of Attorney General by colluding with the most discredited police force in Western Europe.

“We have concluded,” stated the National President of the Irish American Unity Conference (IAUC) Thomas J. Burke Jr. Esq., “that Mr. Holder’s view of upholding the rule of law, justice and democracy may not be shared by Members of Congress. If this U. K. request is allowed to proceed, it is likely to unravel one of America’s significant foreign policy successes.”

Mr. Robert Dunne, the President of the Brehon Law Society indicated that after two meetings with the Department of State there has been no response to our substantive arguments or the documents we have submitted. State lamely insists they are monitoring the situation. We are submitting a request as soon as possible to Senator John Kerry (D-MA) Chairman of the Senate Foreign Relations Committee for a hearing on this proposed MLAT request. The coalition leaders indicated a willingness to discuss the matter at any time but with little interest exhibited by the Obama administration they see the letters released today as a final appeal.

Attachments
Letter to Secretary of State Hilary Clinton
Letter to Attorney General Eric Holder

Appeal to Clinton: Stop Subpoenas For Congressional Hearing

ANCIENT ORDER OF HIBERNIANS
BREHON LAW SOCIETY
IRISH AMERICAN UNITY CONFERENCE

September 6, 2012

Ms. Hilary Rodham Clinton
Secretary of State
Department of State
2201 C St. NW, 7th Fl.
Washington, D. C. 20520

Dear Madame Secretary:

Nearly a year ago the Presidents of our constituent organizations wrote to you individually with our concerns about Attorney General Holder’s subpoena of records held in the Irish archives of Boston College. The request was made by Britain pursuant to a U. S.-U. K. Mutual Legal Assistance Treaty (MLAT). We have since joined together to advise you of our concerns not only for the blatant misuse of the MLAT (see attached letter to Attorney General Holder) but for the larger context of the conflict and threats to the Irish peace process.

In response to our letter of April 18th, our organizations, along with others, were invited to an off the record meeting with Deputy Chief of Staff for Policy, Jake Sullivan. Although other issues were raised, it was apparent that all attendees shared our deep concern for the Holder subpoenas. Our letter of May 4th appealed again for your action to oppose his subpoenas. Little follow-up from your staff occurred until a meeting in July with Mr. William Gill and Barbara Cordero. We reiterated our specific reasons and justifications for opposition to Mr. Holder’s subpoenas. We strongly believe Mr. Gill’s current information on events in Ireland and his description of a “robust” peace process are very much at odds with the reality on the ground.

Madame Secretary it is for that reason we ask you to appeal to Attorney General Holder to thoroughly examine the validity of the British request and ask you to share with him the concerns we have for the justice provisions of the Belfast pact.

Our concerns are well documented by the Committee on the Administration of Justice (CAJ), the Relatives for Justice (RFJ), the Pat Finucane Center for Human Rights (PFC), the British-Irish Civil Rights Watch (BICRW) and Professor Patricia Lundy of the University of Ulster. Their testimony and documentation were submitted and can be accessed on the website of the Committee for Security and Cooperation in Europe (Helsinki Commission) co-chaired by Representative Chris Smith (NJ) and Senator Ben Cardin (MD). Assistant Secretary Michael Posner is a member of the Commission and should be familiar with this material.

These ‘justice issues” of the 1998 Agreement are as follows:

  • The work of the Historical Enquiries team has been seriously compromised by bureaucratic and legal manipulation. Of particular concern is the use of retired Royal Ulster Constabulary officers to review murders during the period when they served, which murders were never adequately investigated by any professional standard known to modern police forces. We fear yet another whitewash is at work with many murders in which police collusion is suspected while they focus attention on a 1972 killing that was ignored at that time.
  • Prime Minister Cameron unilaterally dismissed the 1998 accord requirement for a public inquiry into the murder of attorney Patrick Finucane. He did so while casually acknowledging British ‘security’ forces colluded with loyalist vigilantes in Finucane’s murder. Yet another cover-up of the security forces dirty work is in process.
  • The United Kingdom continues to obstruct and delay Ireland’s efforts to obtain British Army records on the no-warning Dublin-Monaghan bombings, still the largest act of carnage in the 40 year conflict. This monstrous act of slaughter was a British Army production and hiding the truth and avoiding accountability is not acceptable. The British government has a moral obligation to cooperate fully in the Irish government’s investigation.

Discontent by dissident republicans and their recent declarations of possible disruptions and the pushback by loyalist paramilitaries are not indicative of a robust peace process but one that is in retreat. To the above we add concerns for the internment of Gerry McGeough, Marian Price and Martin Corey by a British Minister using the much disputed Closed Material or secret procedures in defiance of law and judicial rulings. Their continued imprisonment directly contradicts representations made to U. S. Senator John Kerry, then Senators Biden and Dodd during ratification of the US/UK Extradition and MLAT treaties in 2006 and, more importantly, violates the letter and spirit of the Belfast Agreement.

Madame Secretary, it is clear to us that the question of responding to this British request can not be reasonably considered without reference to these other matters which are at the core of the peace process gradually taking hold in Ireland. We therefore respectfully request the Administration hold off processing these subpoenas so the Senate Foreign Relations Committee may hold hearings into their use and the implications for peace. We believe its members are entitled to discern from the UK the specific justification of the request, the use of MLAT and their commitment to the principles of the so called Good Friday Agreement as an instrument to restore justice, democracy and the rule of law.

Other groups like ourselves and including the American Civil Liberties Union of Massachusetts would also be invited to testify. It is our belief that the concerns of Senator Kerry and the other Members of Congress who have joined our appeal in opposition would be satisfied with such an agreement.

Madame Secretary, Britain’s request is not a legitimate law enforcement inquiry. We do not seek to interfere in the internal affairs of another country as was suggested by Mr. Gill, but we do object to the British government interfering in the internal affairs of American institutions under false pretenses and interfering in a Irish peace process that has rightly become a cornerstone of American foreign policy. We simply ask that in your consultative role spelled out in MLAT you exercise the same discretion that was exercised by President Clinton in stimulating a new direction in the conflict in Ireland.

Mr. Peter Sheridan, the CEO of Co-Operation Ireland recently stated: “The growth in violent extremism has the potential to be a longer term threat to the economy than the current recession. The dissidents are growing in strength and capability.” We renew our request for your help in insuring that the U. S. does all it can to insure that violence does not escalate and that American laws and institutions are not used to destabilize a peace that is finally beginning to take root.

Sincerely,

Mr. Brendan Moore
National President
Ancient Order of Hibernians

Mr. Robert Dunne, Esq.
President
Brehon Law Society

Mr. Thomas J. Burke Jr. Esq.
National President
Irish American Unity Conference

Attachment: Letter to Attorney General Eric Holder

Holder Told: Congressional Hearing Wanted

ANCIENT ORDER OF HIBERNIANS
BREHON LAW SOCIETY
IRISH AMERICAN UNITY CONFERENCE

September 6, 2012

Mr. Eric H. Holder Jr.
Office of the Attorney General
Department of Justice
950 Pennsylvania Ave., NW, Rm. 5115 .
Washington, D. C. 20530

Dear Attorney General Holder:

Nearly a year ago the Presidents of our constituent organizations wrote to you with our concerns about subpoenas of records held in the Irish archives of Boston College. The subpoenas were issued by you for a British request made pursuant to a U. S.-U. K. Mutual Legal Assistance Treaty (MLAT). We have since joined together to advise you of our concerns not only for the serious misuse of the MLAT (see attached letter to Secretary of State Clinton) but, in the larger context, to the threats to the Irish peace process.

We ask you primarily to review the actual purpose of these subpoenas requested by the Northern Ireland police and to weigh their motivation in terms of the stated objectives of the MLAT. Secondly, we ask you to take into account that fulfilling this request would require cooperating with a politicized police force in Northern Ireland with a long and well documented record of human and civil rights violations and a long history of lawlessness, including admitted collusion in the murders of innocent people. Thirdly, we believe Secretary Clinton shares our concern for Britain’s failure to address the key confidence-building justice measures in the series of 1998 Belfast Agreements which ended the armed conflict. America played a substantial role in securing that peace and should not now be used as a tool to undermine the work of Secretary Clinton and so many others… American, Irish and some British.

We contend that:

  • Article I of the U. S.-U. K. MLAT is NOT to be used where a prosecution is unlikely. The Police Ombudsman of Northern Ireland in 2003 concluded in a report that there had been no investigation of the killing that is purportedly at the heart of the U. K. request. In 2006 the former Chief Constable Hugh Orde stated that “no successful prosecution could be mounted for the 1972 killing.”
  • The ratification documents of the MLAT stipulate that the Agreement is not intended to re-open the past and forswore the prosecution of acts preceding the 1998 Belfast Agreement. Senator Kerry and now others believe they were misled by British officials who misrepresented their intended use of the MLAT.
  • Article I of the MLAT indicates that a request for assistance should be denied if it is contrary to important public policy. The negotiations leading up to the Belfast Agreement were led by former Senator George Mitchell with the active participation of President Clinton. The peace process which has been ongoing since 1998 has been supported by two U. S. Presidents and funds from five nations including the U. S. Enforcement of these subpoenas will only benefit those who oppose the peace process.
  • The British request now appears without doubt to have originated with a rogue element of the most discredited police force in Western Europe. Unfortunately there was never any effort to weed out the bad apples of the predecessor Royal Ulster Constabulary who participated in or orchestrated so many horrible crimes before they were re-branded. The Justice Department is being asked to cooperate with Bull Connor’s soul mates all dressed up in new uniforms It ill becomes the United States to make common cause with dangerous elements of the Police Service of Northern Ireland.

You will find the concerns expressed above and others are well documented by the Committee on the Administration of Justice (CAJ), the Relatives for Justice (RFJ), the Pat Finucane Center for Human Rights (PFC), the British-Irish Civil Rights Watch (BICRW) and Professor Patricia Lundy of the University of Ulster. Their submitted testimony and documentation can be found on the website of the Committee for Security and Cooperation in Europe (Helsinki Commission) co-chaired by Representative Chris Smith (NJ) and Senator Ben Cardin (MD). Some highlights, for example:

  • The work of the Historical Enquiries Team (HET) of the PSNI has been seriously compromised by bureaucratic and legal manipulation. They were charged with investigating old killings. The HET was originally staffed solely by policemen from England because it was recognized members of the old RUC could not be trusted to investigate politically related killings in which they or their colleagues might be involved. This policy was conveniently and quietly changed. Thus it was no surprise that the issuance of these subpoenas followed the hiring of retired Royal Ulster Constabulary officers to review murders during the period when they served; murders which were never adequately investigated by any professional standard known to modern police forces. We fear yet another whitewash is at work while they focus attention on a single 1972 killing that the RUC chose to ignore at that time.
  • Prime Minister Cameron has ignored the 1998 accord requirement for a public inquiry into the murder of attorney Patrick Finucane. He did so while casually acknowledging British ‘security’ forces colluded with loyalist vigilantes in Finucane’s murder. Yet another cover-up of the security forces dirty work was admitted in the public press and yet the U. S. is asked now to cooperate with the same police force responsible for Mr. Finucane’s murder.
  • The United Kingdom continues to obstruct and delay Ireland’s efforts to obtain British Army records on the no-warning Dublin-Monaghan bombings of 1974, still the largest act of carnage in the 30 years of conflict. This slaughter used materials, technology and coordination only within the control of the British Army even though Loyalists acting as agents of the Army planted the actual car bombs. The British government has refused to cooperate with the Irish Supreme Court justice appointed by the government to investigate these murders. Hiding the truth and avoiding accountability is unacceptable. The British government has a moral obligation to cooperate fully in the Irish government’s investigation.

To add to the above concerns we must note in particular the internment of Gerry McGeough, Marian Price and Martin Corey by a British Minister using the much disputed Closed Material or secret procedures in defiance of Britain’s own law and judicial rulings. These cases, we believe, violate both the letter and spirit of the Belfast Agreement.

We therefore respectfully request the Administration discontinue processing these subpoenas so the Senate Foreign Relations Committee may hold hearings into their use and their implications for the peace process. We believe the Committee’s members are entitled to discern from the UK the specific justification for the request, the possible misuse of MLAT and their commitment to the principles of the Belfast Agreement as an instrument to restore justice, democracy and the rule of law.

Other groups like us as well as the American Civil Liberties Union of Massachusetts would wish to testify at such a hearing. It is our belief that the concerns of Senator Kerry and others in Congress who have shared these concerns would be satisfied with such a hearing.

Mr. Peter Sheridan, the CEO of Co-Operation Ireland recently stated: “The growth in violent extremism has the potential to be a longer term threat to the economy than the current recession. The dissidents are growing in strength and capability.” We renew our request for your help in insuring that the U. S. does all it can to insure that violence does not escalate and that American laws and institutions are not used to destabilize a peace that is finally beginning to take root.

Sincerely,

Mr. Brendan Moore
National President
Ancient Order of Hibernians

Mr. Robert Dunne, Esq.
President
Brehon Law Society

Mr. Thomas J. Burke Jr. Esq.
National President
Irish American Unity Conference

Attachment: Letter to Secretary of State Hilary Rodham Clinton