Boston College, The AP & James Rosen Cases And The Wikileaks Connection

Boston College, The AP & James Rosen Cases And The Wikileaks Connection
Ed Moloney
The Broken Elbow
May 21, 2013

From the outset of the affair over the Boston College archives one aspect of the business has puzzled me and that was the apparent failure or refusal of the Obama Department of Justice (DoJ) to realise that the PSNI subpoeanas had the potential to cause big problems for one of the US’ few positive foreign policy successes in recent years (as opposed to negative successes like winning a war in Iraq at the cost of alienating and angering half the world).

It is, I would submit, undeniable that the peace process in Ireland and the Good Friday Agreement that it produced were in large measure the result of direct US involvement in Northern Ireland, firstly by the Clinton White House which broke the ice by giving Gerry Adams a visa to visit New York and then by the Bush administration, whose ambassador to the process, Mitchel Reiss arguably forced Adams and the Provos to complete IRA decommissioning, thus paving the way for the power-sharing, DUP-Sinn Fein government that currently sits at Stormont. Without these efforts it is very questionable that the process could have succeeded.

So why was the Obama DoJ, the Attorney-General, Eric Holder and the US Attorney’s office in Massachusetts so uncritically bent on going down a road that a few moments of due diligence would have revealed was littered with political tank traps that could quite readily destroy or seriously harm a project that American diplomats and politician were justifiably proud of, a project that set a positive example elsewhere in the troubled world that America polices?

After all we have all known since at least 2002 that any serious probe of the disappearance of Jean McConville would lead back to Gerry Adams, the principal architect and instigator of the IRA’s journey out of war but also the man, according to Brendan Hughes, who gave the order to disappear the alleged British Army spy. A threat to Adams, the Kim Il Sung of the Provos, is by extension a threat to the process. And to those who would say that the British would never countenance such a move I ask: well then why have they persisted with the subpoenas?

And it has also been evident since 2010 that if the British finally do shrink from prosecuting Adams, which is of course very possible, then there are others in the wings all too ready to take on the task. One of those is ex-Chief Superintendent Norman Baxter, the PSNI’s former liaison with those nice fellows in MI5, who publicly called for Adams’ prosecution for war crimes in 2010 and failing that endorsed Helen McKendry’s threat to sue Adams in a civil court for her mother’s murder and secret burial.

Indeed there are reasons to suspect Baxter’s hidden hand at work somewhere in this whole business and that a civil action was always the real if hidden goal of the action. He was the senior detective in the failed Omagh bomb trials which ended when the families, frustrated at the failure of criminal prosecutions, successfully took a civil case against the chief suspects. Is it beyond the bounds of credence that this subpoena effort had its genesis in his Omagh experience and the knowledge that if criminal proceedings fail or never materialise there is the alternative of a civil action against Adams, a person whom Baxter makes no secret of loathing?

Baxter knows that in a civil case the standard of proof is much less rigorous than for criminal trials: ‘on the balance of probabilities’ as opposed to ‘beyond all reasonable doubt’, a very telling advantage in a case that would be reliant almost entirely on peoples’ ancient recollections. And he knows that in all the important ways, for instance evidence would be presented in court by police witnesses, the proceedings would differ from a criminal prosecution only in the punishment available to the court. And if you don’t believe that, go ask O J Simpson.

Assuming the DoJ did its due diligence – and I am not assuming that it did – all this would have been quickly apparent to Eric Holder’s people but notwithstanding the risk that Obama’s White House could be remembered, at least in Ireland, for undoing all the good that Clinton and Bush did, it perservered. And not just perservered but pursued the case relentlessly even when opportunities to retire gracefully presented themselves (as with the death of Dolours Price).

One possible explanation of why the Obama administration has acted so evidently against US’ foreign policy interests by pursuing the BC tapes has emerged in the last fortnight or so with the chilling stories of the DoJ’s pursuit of the American news media for doing its job, i.e. unearthing government secrets and telling the public.

First there was the revelation that the DoJ had secretly acquired the work, home and cell phone records of some twenty journalists at the Associated Press in an effort to trace the leaker of a story that the government was planning to make public anyway, that it had, with the help of an agent, sabotaged a plot by Al Qaeda in Yemen to bomb a US-bound aircraft.

The government complained that the story endangered the life of its agent but it was going to do that itself by boasting about its achievement, something that automatically would have alerted Al Qaeda to the possible presence of a traitor in its ranks. (Ask the IRA: whenever a plot is interdicted in such a way the automatic assumption is that it was betrayed internally)

Then in the last day or so we have learned that in 2010 the same DoJ used a search warrant to acquire the email and phone records of a Fox News reporter, James Rosen in pursuit of a leaker who told him….now hold your breath….that North Korea might respond to new UN sanctions with more nuclear tests. Now even I, whose knowledge of North Korea is confined to writing stories about some dodgy bank notes that circulated in Ireland a while back by people not a mile away from the current leadership of the Irish Labour Party, could have written that story but nonetheless the brave folk in DoJ pursued Mr Rosen undaunted.

The worst aspect of the story however is that in order, it seems, to avoid a court challenge to the search warrant the DoJ accused Rosen of being a co-conspirator of the leaker and had aided and abetted the alleged breach of security. What Rosen did is what every journalist does, or, if they have any sense of self-worth, what they should do, which is to encourage holders of secrets to let them go.

The Obama DoJ’s action effectively threatens to criminalise the media in an unprecedented way. Obama had already, pre-Rosen, chalked up the worst record since Richard Nixon of pursuing journalists who had gotten hold of government secrets and leakers who provided them. But arguably Obama is worse. With Nixon you got what you expected and at least in his case he was fighting for his own survival. Obama, he of “Change We Can Believe In” and “Yes, We can”, was supposed to be different but now the hypocrisy (or is it cowardice, as in the act of a Black President seeking to assure the White establishment of his trustworthiness?) is breaking through, becoming visible even to his most zealous supporters.

The action against Rosen unquestionably pushes Obama ahead of Nixon in the creepy president stakes but it also sets the stage in a very convenient way for the prosecution of Wikileaks founder Julian Assange, if or when he is extradited from Sweden, via the UK, to the US. Assuming Bradley Manning is convicted of the spying charges he faces then Assange could, like Rosen, be accused of aiding and abetting Manning’s treachery. That compelling case is outlined here.

Which brings me back to the Boston College case. I am not arguing that it is on the same level as Wikileaks or the AP and Rosen cases but it does strike me that a DoJ in hot pursuit of Wikileaks, that is determined to bring Assange to his knees and, with threats and intimidation, to plug for evermore leaks from government – and in the process is ready to alienate what is normally a tame, well-behaved media and outrage both left and right – is more likely than not to take a very uncompromising line in any legal action it is involved in which undermines the ability of non-government agencies, like Boston College, to claim the right of confidentiality. Even more so if the foreign government behind the action is one the US is dependent on to send Assange to Sweden and thus to a federal court.

And if all that implies a willingness to do damage to something like the Irish peace process then so be it. As the man said “Yes, We Can”.

DOJ’s Assault on 1st Amendment and Northern Ireland’s Peace

DOJ’s Assault on 1st Amendment and Northern Ireland’s Peace
Dustin Slaughter
Open Salon
also: Firedoglake
APRIL 29, 2013

Oral histories of political movements give us glimpses of the participants who helped shape the world we know today. They often provide raw, personal first-hand accounts of peoples’ struggles. These projects also help to maintain historical truths that are often tainted by government revisionism and lost to cultural amnesia.

Tacit confidentiality agreements between historians and interviewees are naturally crucial to the birth of these histories.

So what happens when the Department of Justice and the Police Service of Northern Ireland decide to violate the spirit of a treaty between the United States and the United Kingdom by subpoenaing a confidential collection of taped interviews detailing Northern Ireland’s militant past?

The purity of historical record, as well as fundamental First Amendment issues like freedom of the press, and more specifically source confidentiality, are now under attack by none other than US prosecutor Carmen Ortiz – the same district attorney criticized for what many people called overzealous prosecution that likely led to activist Aaron Swartz committing suicide – and the DOJ, at the behest of Northern Ireland’s police forces. These parties apparently see fit to enflame a tenuous peace in Northern Ireland by tearing open historical wounds through their desire to prosecute former Irish Republican and Loyalist paramilitaries for unsolved crimes.

Beginning three years after the 1998 Good Friday Agreement, heralded by some as the beginning of a new – and peaceful – chapter between the United Kingdom and Northern Ireland, journalists Ed Moloney and Anthony McIntyre began tape recording interviews with members of Irish paramilitaries and their Loyalist foes. Their objective was to contribute a better academic understanding of what motivated otherwise ordinary individuals to join the armed conflict, as well as document the turbulent and important history known as The Troubles. They concluded their interviews in 2006 and the Belfast Project is stored today in Boston College’s Burns Library.

The lynchpin of the project was the confidentiality agreement McIntyre and Maloney forged with participants – from both sides of the conflict – some of whom divulged the names of militants. The stories were not to be released without their written consent or until their death.

Fast forward to 2011, when the Department of Justice, by way of a Clinton-era initiative called the US-UK Mutual Legal Assistance Treaty (MLAT), attempted to force Boston College to release the tapes by recklessly (and improperly, as I’ll address below) subpoenaing these confidential interviews at the behest of the Police Service of Northern Ireland (PSNI).

Authorities claim that Belfast Project interviews will assist in investigating the re-opened case of Jean McConville, who was kidnapped and murdered by the Provisional IRA in 1972. Current Sinn Fein leader and Irish president Gerry Adams, among others, have been implicated in the crime. Republican militants admitted their culpability some 20 years later.

Some, like Anthony McIntyre – a writer, historian and former IRA member who was jailed for 18 years in Northern Ireland’s infamous Long Kesh prison and was released in 1996, believe the motivation for the subpoena is more complicated – and sinister – than a mere desire to solve a horrible crime that happened in 1972 however.

“[The justice angle] does not have much traction, given that the PSNI was heavily involved in using law enforcement to break the law and immerse itself as a player in the conflict [during the Troubles],” he tells me through email.

“It is certainly not interested in solving homicides per se. It is interested in the selective solving of some homicides. Hence we have killings involving state agents not being pursued but others involving people opposed to the state pursued.”

The checkered history of Northern Ireland’s security forces supports McIntyre’s suspicion that the subpoena is politically motivated. The former incarnation of the PSNI, from 1922 until 2001, was the Royal Ulster Constabulary (RUC). This law enforcement organization has a storied history of human rights transgressions, as detailed in a number of reports, including one issued in 1991 by Human Rights Watch, which cite a wide range of abuses against Irish nationalists and which also point out numerous instances of RUC collusion with Loyalist paramilitaries.

Most notably, two members of a special anti-terrorist unit within the RUC known as the Special Patrol Group were convicted in 1980 of giving aid to Loyalist forces in the form of transportation, kidnappings, shootings and bombing attacks.

Besides these two Special Patrol Group members, no RUC or PSNI officers have ever been charged with crimes.

But it is what McIntyre calls the “retire and rehire” phenomenon taking place within the RUC-turned-PSNI that gives him the greatest doubt that Good Friday Agreement reforms have changed the police force’s apparent anti-nationalist leanings. A watchdog audit of the PSNI in 2011 found that almost 20% of the over 5,000 RUC officers laid off under reforms were rehired. The report describes the organization’s apparent reversion to its RUC roots as “out of control,” according to the Guardian, which ran the story in October 2011. The push to enter more Irish Catholics into the police force, a key reform from Good Friday, is clearly being rolled back.

And the Boston College subpoena, in light of all this, may very well be a political fishing expedition designed, at least in part, on hunting down old enemies of the British state.

Two plausible scenarios could emerge if the DOJ and PSNI are successful in accessing the Belfast Project interviews: Sinn Fein leader Gerry Adams will face prosecution for his alleged involvement in Jean McConville’s murder. Irish nationalist rage would likely spill out into the streets of Belfast.

Conversely, the PSNI may do nothing with the archive. If that happens, McIntyre tells me, “the British government decides it is too politically sensitive – not least for what may be revealed about their own knowledge and activities – to bring forward any criminal prosecution. Loyalist reaction to this will be, predictably, outrage. They will hardly accept, especially given the lengths that the British are going to obtain this material, that it was worthless.”

Clearly, either outcome could set off the tinderbox – and the two journalists who created the project have, since 2011, been consumed with preventing the potential unraveling of Northern Ireland’s peace process.

They’ve also rushed to protect what they correctly perceive as an erosion of journalistic freedoms enshrined by the First Amendment here in the U.S. More on this latter point shortly.

Anthony McIntyre and Ed Maloney began their protracted legal battle with prosecutor Ortiz after Boston College refused to appeal a lower court’s decision that the DOJ’s grab at the archives was legitimate. The two men found support from the ACLU of Massachusetts, the Reporters Committee for Freedom of the Press, and the Irish American Coalition, all of which added amicus briefs to the case.

After two years of overturned appeals, McIntyre and Maloney finally kicked the case up to the Supreme Court – only to have the High Court refuse to hear it last week.

With that final blow, every legal avenue is now exhausted.

This leaves only a political redress through a newly-minted Secretary of State John Kerry who, before taking the new post this year, served on the Senate Foreign Relations Committee. In a January 2012 letter to former Secretary of State Hillary Clinton, Kerry expressed concern ”about the impact that [the subpoena] may have on the continued success of the Northern Ireland peace process.”

Senator Kerry added: “It is possible that some former parties to the conflict may perceive the effort by the U.K. authorities to obtain this information as contravening the spirit of the Good Friday Accords.”

As noted earlier, the DOJ’s actions most certainly violate the spirit, if not the letter, of the U.S. – U.K. Mutual Legal Assistance Treaty. In a report submitted by Senator Richard Luger in September 2006, Luger states:

“The Senate’s understanding [is] that the purpose of the Treaty is to strengthen law enforcement cooperation between the United States and the United Kingdom by modernizing the extradition process for all serious offenses and that it is not intended to reopen issues addressed in the Belfast Agreement or to impede any further efforts to resolve the conflict in Northern Ireland.”

Kerry and Luger were not alone in their concern.

New York Senator Charles Schumer expressed consternation that the DOJ’s subpoena not only threatened to destroy a fragile peace across the Atlantic, but that it targeted freedom of the press. In a letter sent to both Secretary of State Clinton and Attorney General Eric Holder, Schumer stated:

“There are significant issues of journalistic confidentiality and academic freedom that are called into question as a result of this legal maneuver that make it dubious…I have always been a champion of protecting sensitive source material that is gathered by researchers – journalists and academics alike—and I am concerned that this action presents an infringement on that underpinning of the First Amendment.”

One need only look at the DOJ’s dogged pursuit of activists, such as the late Aaron Swartz, to see how far the Justice Department will go to score wins in court. It is not a stretch to believe they could use subpoenas to violate journalist-source confidentiality in future cases.

With over 100 similar bilateral assistance treaties between the U.S. and other countries in existence today, the threat this subpoena poses may have far-reaching – and unimaginable – consequences for international political movements, freedom of dissent and our own First Amendment.

 

Smoldering Embers in Belfast May Soon Reach US Justices

Smoldering embers in Belfast may soon reach US justices
By M.C. Sungaila and John DeStafano
Los Angeles Daily Journal
Friday, January 25, 2013
PERSPECTIVE

By day protestors turn out by the hundreds, waving flags and blocking traffic across the region. By night, bands of rioters take their place, wielding hatchets, bricks, and petrol bombs against the police assembled to meet them. These riots, spurred by a decision to reduce the number of days the Union Jack flies at Belfast City Hall have rattled the delicate peace process in Northern Ireland since early December. It has been 15 years since the Good Friday peace accord spelled the official end to the 30-year period of conflict known as the Troubles. Yet this is still a population divided along ethnic, political, and religious lines, and the overarching question of whether to remain part of the U.K.

The U.S. Supreme Court will soon decide whether to hear a different controversy arising from the Troubles, Moloney V. United States, a case which pits First Amendment rights against the investigative powers of foreign law enforcement. At issue is the ability of journalists and researchers whose materials are located in the U.S. to object both as a matter of First Amendment law and international discovery procedure to the enforcement of a foreign subpoena for confidential source material. The Supreme Court stands as the arbiter between the U.S. and British law enforcement on the one hand and, on the other, two researchers, Ed Moloney and Anthony McIntyre, who seek to protect their U.S.-based research into the history of the Troubles.

Moloney and McIntyre worked in conjunction with Boston College over a period of five years to compile an oral history of the Troubles. This research effort, known as the Belfast Project, involved interviews conducted between 2001 and 2006 with former members of paramilitary groups from both republican and loyalist factions, including the Provisional Irish Republican Army (IRA) and the Ulster Volunteer Force (UVF). Although conducted after the official end of the Troubles, the research posed risks to the safety of both the researchers and their participants. Paramilitarism had survived the signing of the 1998 Good Friday Agreement. Those perceived as informers (or ‘touts’) — a label that could apply to the researchers and their sources — had long been targets of paramilitary violence in Ireland. Because of the sensitive nature of this research and the potential risks that it posed to the researchers and participants, the interviews were given based on a promise that each interviewee’s statement would remain confidential in an archive at Boston College until the interviewee died. The statements remained in the archive. undisclosed, for several years.

Near the end of the decade, two of the project participants died, and their interviews were released. In 2010, a book was published, and another project participant spoke to a newspaper about her involvement with the Belfast Project. These events caught the attention of the Police Service of Northern Ireland, which initiated two requests for discovery under a U.S.-U.K. Mutual Legal Assistance Treaty (“U.S.-U.K. MLAT”). Pursuant to that request, the U.S. Department of Justice served two subpoenas upon Boston College for the confidential materials.

The first of these requests sought the undisclosed interview described in the newspaper. The second request sought all remaining interviews concerning an unsolved Troubles-related murder-disappearance that took place in Northern Ireland in 1972. Boston College moved to quash these requests in part.

Researchers Moloney and McIntyre moved to intervene, objecting under the First Amendment. They argued that the subpoenas were not issued in good faith and posed a threat to the lives of the Belfast Project researchers and participants. The researchers also argued that the subpoenas violated the terms of the MLAT because they related to the investigation of pre-Good Friday offenses of a political character.

The district court in Boston refused to permit intervention and dismissed a separate complaint which the researchers filed. On appeal, the 1st Circuit affirmed both rulings, holding that the researchers had no First Amendment right to object and no right to object under the terms of the MLAT itself. In a separate concurrence, Judge Juan R Torruella expressed regret that First Amendment doctrine was not more responsive to the researchers’ dilemma.

Moloney and McIntyre petitioned for a writ of certiorari, seeking to clarify the right of journalists and researchers to protect the confidentiality of their sources and materials. The decision in Branzburg v Hayes 408 U.S. 665 (1972), which governs the ability of reporters (and, by extension, academics) to resist discovery of confidential source material by law enforcement, has driven continual debate and split the circuits. Moloney and McIntyre’s objections raise an additional First Amendment and due process issue: should their assertions of privilege and safety concerns have been rejected out of hand, before al-lowing them to fully establish the evidentiary basis for their claims? The researchers also argue that the 1st Circuit misread the MLAT to grant the executive carte blanche to prosecute subpoenas on behalf of foreign governments, free of judicial scrutiny.

Four amicus briefs submitted in support of the petition further but-tress the researchers’ positions. The Reporters Committee for Freedom of the Press filed a brief which highlights the confusion over Branzburg under U.S. law, noting the conspicuous failure of the Supreme Court to offer needed guidance in this area.

A second brief filed by a group of social science scholars addresses the common First Amendment interests that journalists and researchers both en-joy, as well as the additional policies that favor the protection of academic research into conflict areas.

Several Irish-American advocacy groups submitted briefing on the history of the conflict in Northern Ireland and the threat that the subpoenas pose to the peace process. Their brief discusses the workings of the MLAT and related statutes, challenging the conclusion that the legislature intended to eliminate judicial review of international discovery requests.

Finally, the brief of ARTICLE 19: Global Campaign for Free Expression paints the Supreme Court as a national and international outlier in its failure to establish a clear standard of source protection. including a right to be heard on objections to disclosure. The special concerns of journalists and researchers working internationally, particularly those working in conflict and post-conflict areas, demonstrate the need to respect and protect confidential sources and information so that U.S.-based researchers and their sources are not exposed to violence and retaliation from abroad.

The 1st Circuit’s decision may present challenges for other interest groups to the extent it grants foreign governments a subpoena power that appears to be immune from third-party challenge. For instance, individual Internet users may be unable to challenge MLAT requests for confidential or private information held by a web provider or cloud service. In turn, U.S.-based web businesses may find that consumers’ privacy concerns about using such services will increase, forcing these businesses to challenge discovery requests that their customers are unable to challenge.

The government’s response to the Petition is due at the end of this month, and the Supreme Court will determine whether to grant certiorari this spring. Meanwhile, protests over the removal of the union flag continue. For all the good that has come from the 1998 Good Friday Agreement, many unresolved issues remain. The number of “peace walls” separating Protestant and Catholic neighborhoods has multiplied to almost 90. New paramilitary groups have coalesced. Flames of sectarian violence have died down, but the embers still smolder.

M.C. Sungaila is an appellate partner in the Orange County office of Snell & Wilmer LLP; John DeStafano is an associate in the firm’s Phoenix office. Ms. Sungaila and Mr. DeStafano are counsel for ARTICLE 19, one of the amicus curiae in support of the petitioners in Moloney v United States

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.

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

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

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

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

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

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.

 

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

Will CBS and Sunday Telegraph Defy PSNI Demands For Dolours Price Material?

Will CBS and Sunday Telegraph Defy PSNI Demands For Dolours Price Material?
Ed Moloney
The Broken Elbow
October 8, 2012

This weekend a number of news reports claimed that the PSNI has requested that journalistic material from the US broadcaster CBS and the British newspaper, The Sunday Telegraph concerning Dolours Price and the abduction and ‘disappearance’ of Jean McConville be handed over to detectives investigating her death.

The Telegraph interviewed Dolours Price about her alleged role, inter alia, in the disappearance of Jean McConville by the IRA in 1972. It is believed that the paper’s reporters tape-recorded their interviews with her. She said Sinn Fein leader Gerry Adams had given her the order for these operations which included the 1973 bombing of London, for which she was arrested and imprisoned. CBS News’ London bureau also interviewed Dolours Price and an item based on the interview was broadcast on national US television and radio. It is likely that the PSNI are seeking film that was not broadcast.

If past practice is a reliable guide, it is likely that the PSNI have requested that this material be handed over voluntarily by these two organisations and if they refuse will then serve them with subpoenas. It remains to be seen what the response is from The Sunday Telegraph and CBS but hopefully a voluntary handover is not on the menu at either organization!. More crucially, what will they do if, having refused to hand over the material voluntarily they then are served with subpoenas? Will they move in the courts to quash them? Not to do so will set an alarming and dangerous precedent because this will entail two of the foremost media concerns in the Western world accepting the unbridled, unchallenged right of the police to use journalistic material in criminal investigations while implicitly accepting that journalists can and even should work alongside police detectives to supplement their work. Where CBS and The Sunday Telegraph go today, others will follow tomorrow.

It is the thin end of a very dangerous wedge. It would end by cementing the police and the Fourth Estate together as partners, the latter collecting information for the former to use, degrading the supposed independence of the media in a most disconcerting way and undermining its ability to hold society and its institutions, including the police, to account and under scrutiny. With the Leveson inquiry due to recommend tighter state oversight of the media, this move by the PSNI holds great destructive potential for a free society in Britain. In the US, CBS’ capitulation would mark another depressing waypoint on a post-911 journey that has seen civil liberties erased and media independence eroded. These are bad days for this to happen.

The nature of the crime under investigation, the “disappearance” of alleged British Army informer, Jean McConville by the IRA some forty years ago may tempt CBS and the Sunday Telegraph to hand over the material, on the grounds that the crime was so monstrous that nobody could stand in the way of bringing the matter to a just end. While not wishing to minimise the sheer wrongness and wickedness of what happened to Jean McConville, it would be unfortunate if that did happen and both institutions should reflect on a number of realities before contemplating that path.

They should remember that there were many, many monstrous crimes committed during the Troubles in Northern Ireland, and quite a few of them were carried out by the state. Those crimes however remain uninvestigated and untouched by the same police force that now seeks to discover what happened to Jean McConville. They were carried out by the PSNI’s predecessors, the RUC, by British Military intelligence and by the Security Service, MI5 – the gory details are well known in Northern Ireland – yet no subpoenas are ever slapped on their desks. And we all know they won’t be. There are double standards at work here.

Secondly, for the most part of the last forty years neither the police nor any other security force agency cared a damn about Jean McConville, to the extent that only recently did they even classify her death as a murder, even though their intelligence files must have been bursting with information about her fate .

If the IRA is telling the truth and she was an informer who was caught but then let go with a warning before resuming her work for the British military, then the Army has some hard questions to answer, not least why they continued to use an agent whose life they must have known was in danger. And is it only coincidence that the state’s new found concern for Jean McConville comes when the Provo leadership has no more peace process cards to play, has disarmed and defanged the IRA and presents a great electoral threat to the Southern establishment parties? When the PSNI embarked on this investigation, with subpoenas served only when Gerry Adams was no longer a member of the British parliament and a potential source of embarrassment for that institution, they knew full well that all paths in their investigation would lead to his door. In these circumstances we are entitled to ask whether the opportunity to wreak revenge against a long-time foe rivals any concern for the death of Jean McConville.

Finally, CBS and The Sunday Telegraph should bear in mind that no matter the distressing circumstances of Jean McConville’s abduction and death, it is the principle that matters above all, that the media should be and must stay independent. It is this that is at stake in this matter. Today it is Jean McConville but tomorrow it may be opponents of war or people protesting the power of Wall Street or the City of London. The day the media accepts without protest or effort to deny in the courts, a role as an active partner with the police, no matter the justness of the cause, is the day they cease to matter and the rest of us lose a crucial if erratic bulwark of freedom. We are too close to that as it is. If, finally, both outlets must hand over the material it can only be after a fierce fight to protect their independence and to reassure their readers and viewers.


The following is a statement I issued in the wake of the weekend reports:

“I view with great concern and no little alarm this effort by the PSNI to further intrude upon media rights by seeking interview material from CBS News and the Sunday Telegraph. It is clear that in the light of recent court decisions in the United States and Belfast, the police feel encouraged to raid for journalistic material rather than conduct investigations under their own steam, as they had many opportunities to do in this case.

“I sincerely hope and trust that neither CBS nor the Sunday Telegraph will voluntarily hand over material to the PSNI and in the event of a subpoena being served on either organisation they will have my complete and unqualified support in resisting it. It is vital to remember that Article 10 of the European Convention on Human Rights provides a robust bulwark against incursions into freedom of speech and I trust both organisations will seek its protection against this effort by the PSNI.

“Clearly this case is developing into a major assault on privacy. Not content with assailing academic rights, the PSNI are now set to lay siege to the media as well. Where will this stop? The right and duty of the media to report fully and freely without having to look over their shoulders for prying policemen has to be protected if the media is to perform its role of holding society to account.

“There are a number of points I wish to make about this issue:

“It is clear that the PSNI is substituting the efforts of journalists for basic detective work. I cite one glaring example. In August 2010, Dolours Price, who lives in Dublin, appeared in a Northern Ireland court on a minor charge. The court was full of policemen at the time and the authorities were well aware in advance of her appearance. The PSNI had a perfect opportunity to question her about the allegations in the Irish News and Sunday Life but did not do so. The questions must be asked, why not? And why should media and academic organisations now be asked to pay the price for police incompetence?

“I also wish to point out that notwithstanding a recent decision in the Belfast High Court I am firmly and unalterably of the view that if these interviews from Boston College are handed over, the risk to the life of BC researcher, Anthony McIntyre will be very great indeed. The IRA will view him as someone who encouraged living, fellow former members of the IRA to break their rule of silence in circumstances that could lead to criminal charges against living IRA leaders and members. As someone who has covered IRA matters as a journalist for many years, I know what the penalty for that is. Thankfully, none of the journalists from CBS or the Sunday Telegraph are likely to face the same consequences.

“The speed with which the PSNI have acted against CBS and the Sunday Telegraph is in sharp contrast to its complete inactivity when similar reports surfaced in the Irish News and Sunday Life newspapers in February 2010. One of those reports wrongly claimed that Anthony McIntyre’s interview with Dolours Price contained details about the disappearance of Jean McConville. It did not but that did not stop the PSNI from issuing subpoenas more than a year later against Boston College. Had the PSNI conducted basic due diligence in 2010 those subpoenas would never have been issued.

“In this regard it is worth noting that this move against CBS and the Sunday Telegraph is the first time since this case began that the PSNI has sought to obtain allegedly similar materials through domestic channels.”

– Ed Moloney

Boston College Subpoenas Caused By Journalist’s Lies and PSNI Failings

Boston College Subpoenas Caused By Journalist’s Lies and PSNI Failings
Statement by Ed Moloney, former Director, The Belfast Project, Boston College
Press Statement For Belfast Court Hearing
September 14th 2012

PREAMBLE

When the US government served subpoenas on Boston College’s Belfast Project archive in May 2011 on behalf of the PSNI, the subsequent legal challenge was led by Boston College and the strategy was decided by the College’s leaders in consultation with their lawyers. These were not our lawyers, nor our strategy.

Eventually, dissatisfaction with the Boston College strategy persuaded us to break from them and to hire our own attorneys, Eamonn Dornan and Jim Cotter and to devise our own strategy in consultation with them. We had important, perhaps decisive things to say but we needed to say them in a court of law where we had a chance of overturning the subpoenas.

We had been trying to get the go-ahead from a US court to intervene at which point we could make these arguments public during a decisive hearing in an American court. So far we have not succeeded. Now that there is a possibility of a Judicial Review being held in Belfast we believe that this moment has come. Accordingly, I have sworn an affidavit for the Belfast court this morning summarizing the essential facts and my statement below goes into far more detail.

BOSTON COLLEGE SUBPOENA WAS BASED ON A JOURNALIST’S LIE & PSNI FAILINGS

When this research project at Boston College (BC) began we gave interviewees a pledge that nothing of what they said would be revealed until their deaths. I intend to keep that promise.

But the pledge did not cover what the interviewees did not say.

I now wish to make the following facts public: in her interviews with BC researcher, Anthony McIntyre, Dolours Price did not once mention the name Jean McConville. The subject of that unfortunate woman’s disappearance is not even mentioned. Not once. Neither are the allegations that Dolours Price was involved in any other disappearance carried out by the IRA in Belfast, nor that she received orders to disappear people from Gerry Adams or any other IRA figure. None of this is in her interviews with Anthony McIntyre.

The subpoena served in May 2011 by the US government on behalf of the Police Service of Northern Ireland (PSNI) seeking her interviews, which was followed in August by other subpoenas seeking more interviews from the BC archive, was based upon a false newspaper report in Northern Ireland published in February 2010 alleging that she had talked about the disappearance of Jean McConville to Anthony McIntyre for the BC project.

The McIntyre-Price-BC interviews are the wellspring for this extensive legal action carried out by the British and American governments, a legal action that could do irreparable harm to the peace process in Northern Ireland, irretrievably reduce academic and media freedoms in the United States and imperil the lives of researchers and interviewees alike.

In this document I will provide evidence to show that the PSNI failed in its basic duty of establishing the reliability and credibility of the false newspaper report until fifteen months after the article had appeared and after the subpoenas had been served on BC. There is a responsibility on a police force in such circumstances to seek evidence firstly from the sources that are nearest to hand, what the American legal system calls “the least sensitive source”. This the PSNI did not do.

I will show that the PSNI moved to check the newspaper material or gather evidence only after I had placed on legal record with the District Court in Boston my belief that the basis for the subpoena was flawed and that the taped interview referred to was not from BC but was made by the Belfast daily newspaper, The Irish News. The evidence I now present establishes beyond any doubt that the first subpoena was deeply flawed.

The United States Department of Justice presumably believed that the PSNI had carried out due diligence before embarking on the subpoena route but in that respect it was either mistaken or misled. This was an egregious abuse by the PSNI of the Mutual Legal Assistance Treaty (MLAT) between the US and the UK which facilitated these subpoenas. Under the terms of the MLAT, myself and Anthony McIntyre were barred from opposing the action in court. This abuse of the MLAT by the PSNI demonstrates beyond peradventure the need for Congress to urgently rewrite these treaties to prevent a future similar injustice.

I will now describe the background to the false newspaper article that began this legal nightmare.

THE IRISH NEWS – THE SUNDAY LIFE

The newspaper report that began the saga of the BC subpoenas appeared in The Sunday Life, a popular tabloid circulated in Northern Ireland, on February 21st, 2010 under the by-line of Ciaran Barnes. The report, splashed on the front page and continued inside, alleged that Dolours Price had been involved in the McConville disappearance and several other similar events and had admitted all this in a tape recorded interview.

The article went on to claim that Dolours Price had given taped interviews to what Barnes called “Boston University” and he told his readers that he had heard tape recordings in which Dolours Price confessed her role. The piece was written in such a way as to lead the average reader to conclude that she had made these admissions on tape to BC and that Ciaran Barnes had listened to them; this assumption was subsequently shared by the PSNI and the US Department of Justice.

To quote Ciaran Barnes’ report: “Price recently gave a series of interviews to academics from Boston University (sic) about her role in the IRA. These include admissions about her role in transporting some of the disappeared to their deaths. The interviews were given on the basis that they will not be published until after her death”, and “Price, who has made taped confessions of her role in the abductions to academics at Boston University, will relay this information to Independent Commission for Location of Victims’ Remains (ICLVR) investigators later this week”. And also: “Sunday Life has heard tape recordings made by Price in which she details the allegations against Adams and confesses her own involvement in a series of murders and secret burials”.

Ciaran Barnes’ report featured centrally in the US government’s defence of the subpoenas when the action was challenged in the Federal District Court by BC. Here is what the US Attorney for Massachusetts, Carmen Ortiz had to say in her July 2011 submission:

“Ms Price’s interviews by BC were the subjects of news reports published in Northern Ireland in 2010, in which Ms Price admitted her involvement in the murder and “disappearances” of at least four persons which the IRA targeted: Jean McConville, Joe Lynskey, Seamus Wright and Kevin McKee. See Exhibits 1 and 2. Moreover, according to one news report, the reporter was permitted to listen to portions of Ms Price’s BC interviews.”

In other words the official US Government stance was that The Sunday Life reporter, Ciaran Barnes had listened to Dolours Price’s interview with BC and had heard her confessing to the disappearance of Jean McConville and others. Presumably this is what the PSNI told the US government and presumably the US government believed it. The subpoenas served against BC were therefore justified, the US government argued.

The truth is that the interviews that Anthony McIntyre conducted with Dolours Price are notable for the absence of any material that could ever have justified the subpoenas. In this respect it is worth remembering that when she was interviewed by McIntyre, Dolours Price was given the same confidentiality assurances as other interviewees, which was that whatever she said would not be revealed until her death. As the interviews with Brendan Hughes, later published in the book Voices From The Grave, graphically demonstrate this enabled interviewees to speak freely, fully and candidly and to talk honestly about their lives in the IRA.

(Incidentally all this nails the lie that the Belfast Project was established to “Get Gerry Adams” as people like Niall O’Dowd and Danny Morrison have alleged. As this episode demonstrates, no interviewees were ever put under pressure to implicate him or anyone else in IRA activity.)

So what was the genesis of Ciaran Barnes’ shocking misreporting?

Three days before his report appeared, on February 18th 2010, The Irish News, Northern Ireland’s daily Nationalist newspaper, published a lengthy series of articles based on an interview with Dolours Price conducted in Dublin earlier that week by one of the paper’s senior reporters, Allison Morris. The front page lead carried the headline: “Dolours Price’s trauma over IRA disappeared”. The interview was tape recorded and it has been my consistent belief throughout this affair that the tape recording that Ciaran Barnes listened to and upon which he based his Sunday Life article was Allison Morris’ tape. It certainly could not have been BC’s.

Some background is needed here. When Dolours Price’s family heard that she had given an interview to Allison Morris they were alarmed. She had a history of psychiatric problems and substance abuse. She has been diagnosed with PTSD, had been hospitalized repeatedly and was taking strong psychotropic drugs. Indeed on the day she spoke to Morris she was on day leave from St Patrick’s Psychiatric Hospital in Dublin. Her family believed that in her mental state, and because of her anger over Gerry Adams’ disavowal of the IRA, she was capable of saying literally anything and getting herself into undeserved trouble.

To cut a long story short the family intervened with the editor of The Irish News, Noel Doran and as a consequence the resulting story published by Doran was very restrained. There were no direct quotes from her and in relation to Jean McConville, the Irish News had just this to say: “Ms Price is also said to have been privy to details of the final days of mother-of-ten Jean McConville, whose remains have already been recovered”, and “She is believed to possess previously undisclosed information about at least four Disappeared victims.”

Most crucially of all, the Irish News couched its report in the context of Dolours Price taking the story of what she allegedly knew about the “disappeared” to the Independent Commission for the Location of Victims’ Remains (ICLVR), a body set up under the aegis of the peace process to deal with the vexed and troubling issue of victims ‘disappeared’ by the IRA. That was crucial because the ICLVR bestows immunity from prosecution and so Dolours Price would not be subjected to criminal prosecution as a result of anything she told the Commission. And The Irish News was careful not to implicate her directly in any criminal offence.

I would like to place on record my belief is that the editor of The Irish News, Noel Doran behaved properly in all this. But sadly, the same cannot be said for his reporter Allison Morris.

All would have been fine and I would not now be writing this statement and the courts in two jurisdictions would not have had their time taken up with the case of the BC subpoenas but for the fact that three days later, The Sunday Life took the story a stage further, adding garish and gruesome detail to The Irish News story and seemingly citing the BC interviews as the source for the story.

The immediate effect of Ciaran Barnes’ reportage was to make the immunity deal arranged by Noel Doran and the ICLVR redundant. Dolours Price could not be prosecuted for what she told the commission but she could face charges over what Ciaran Barnes’ claimed she had told BC.

So why do I believe that Ciaran Barnes got his story from Allison Morris?

Well, first of all it could not have come from Anthony McIntyre’s interview with Dolours Price because it does not mention Jean McConville at all nor any of the other people disappeared by the IRA at the same time. So the idea that Barnes listened to the BC tape and used it as a source for his story is a sheer impossibility.

Barnes does however say very distinctly that he did listen to “tape recordings made by Price” admitting to the Jean McConville and other disappearances. So a tape did exist. So whose tape was it? I believe it was Allison Morris’ tape not least because Irish News editor Noel Doran admitted that Morris had taped Dolours Price in the course of a lengthy debate with myself carried out in the columns of the Irish-American website, TheWildGeese.com during 2011. (Source: http://thewildgeeseblog.blogspot.com/2011/11/moloney-vs-irish-news-final-word.html )

He wrote: “As I have pointed out, Moloney himself could have solved this ‘mystery’ through one simple telephone call. We would have been happy to tell him that PSNI detectives did attempt to obtain the Irish News tape but were informed that we were no longer in possession of any such material.” (More about this further down)

So there was a tape of the Dolours Price interview. Given that we don’t know of any other interview that Dolours Price gave and that her interview with Anthony McIntyre made no mention of the material that made up the bulk of Ciaran Barnes’ report, suspicion must inevitably fall on Allison Morris as being the source. Barnes had to be quoting from Allison Morris’ tape because there was no other tape.

There were no quotes from Dolours Price in the Irish News report of her interview with Allison Morris and that was understandable, given the deal that had been struck between her family and the paper’s editor. But why no quotes in the Ciaran Barnes’ article? After all he had seemingly gotten access to a sensational exclusive, a tape recorded interview made by a respectable and credible American college revealing the background to one of the Troubles’ most notorious killings, so why not use direct quotes from the interview to substantiate and add credibility to his story. It is what nearly every journalist I know would do, and certainly what a reputable reporter would do. Nor was he restrained by any deal made by his source or the source’s family with his editor. But he didn’t. So why not?

Well put yourself in Ciaran Barnes’ shoes. He thinks he knows Dolours Price has given interviews to BC and he guesses that she must have covered the same ground as Allison Morris did, although he can’t know that for certain. But if he uses quotes from the Morris interview and pretends they came from BC then it will be a simple matter to prove he is lying by comparing the Boston interview with the quotes he publishes. If they don’t match then he is caught with his pants down. And once found out he and his paper could face legal retribution from one of America’s wealthiest colleges. Not a nice prospect; so far better to use no quotes.

The effect of The Sunday Life story was to add lustre and credibility to Allison Morris’ scoop and not long after the two stories appeared, Allison Morris won two prestigious journalistic prizes, the National Union of Journalists’ Regional Journalist of the Year and a similar award from the Society of British Regional Editors. For each prize she submitted a three-article portfolio, one of which was her interview with Dolours Price. Now regarded as one of The Irish News’ star reporters, Allison Morris and Ciaran Barnes have come a long way since they both worked together and became friends in the west Belfast weekly, The Andersonstown News.

THE PSNI AND THE DUE DILIGENCE FAILURE

As I was putting the pieces of this story together the Leveson Inquiry had begun hearing evidence about the hacking scandal involving Rupert Murdoch’s News International and I wrote a detailed email to Lord Leveson’s team asking that this episode be included in his investigation. I did so after taking legal advice and because his inquiry encompassed both the questionable practices of some journalists and the relationship between the media and the police.

Unfortunately, this was not possible; the Leveson team told me that the appropriate place for hearings into “who did what to whom” would be in Part Two of his Inquiry which will happen if and when police investigations and criminal prosecutions have taken place. So maybe on another day the behaviour of Ciaran Barnes and Allison Morris will come under proper scrutiny.

Aside from being an egregious case of media misbehavior, the reason I wanted Leveson to have a look at the Sunday Life-Irish News case was that the PSNI had seemingly made no effort to locate relevant material right on their doorstep – that is the Irish News interview with Dolours Price and the “tape” that Ciaran Barnes had claimed to have listened to. Instead they had ignored these local sources and opted instead to seek their evidence 3,000 miles away in Boston. Why?

In my June 2011 affidavit I made it clear that I believed that Dolours Price’s interview with Allison Morris had been taped and that the tape had been passed on to Ciaran Barnes in The Sunday Life. And I added that there was no way that Ciaran Barnes could have heard her BC interview. Without spelling out the reality that Dolours Price had not talked about Jean McConville in her interviews with Anthony McIntyre, my affidavit clearly said that the basis of the subpoenas was flawed.

When The Boston Globe published an editorial urging the college to hand over the tapes I emailed Tom Hachey, the head of the Irish Studies Center and the man in charge of the archive, asking if he or someone else from the college would respond. He did not reply, so myself and Anthony McIntyre asked The Boston Globe for the right to reply which they granted.

Our article, published on August 23rd, 2011 had this to say, inter alia:

“The subpoenas that have been served are based on an unproven assertion: that an interview given to the college by a former Irish Republican Army activist, Dolours Price, could shed light on a 40-year-old murder and should be surrendered.

“The truth, however, is that the Police Service of Northern Ireland (PSNI), on whose behalf US Attorney Carmen M. Ortiz is acting, does not know what Dolours Price told BC’s interviewers. Neither does Ortiz.

“They do not know because the legal basis for the subpoenas is deeply flawed, the result of either rank incompetence or sleight of hand. The authorities have justified the action by claiming that an interview with Price published in a Belfast newspaper in February 2010 about the murder was derived from her BC interview, when in fact it was based on a separate taped interview given directly to the newspaper. Price’s interviews have never been released by BC and never would be – because a guarantee of confidentiality was given to every interviewee.

“What is happening is essentially an unwarranted fishing expedition into the college archives.”

It must be clear to the reader now why we wrote those words.

But the question remains, why had the PSNI not gone straight away to the source of those two stories in the Irish News and Sunday Life as soon as they were published? When I was subpoenaed in 1999 by Scotland Yard over the Billy Stobie case because of an article I wrote, the subpoena was served within days of publication. When Suzanne Breen was subpoenaed following an interview she had with the Real IRA, again it was served within days. But after the Irish News and Sunday Life articles appeared nothing happened and the PSNI sat on their hands.

Let me be clear about one thing. While I utterly abhor the behavior of Allison Morris and Ciaran Barnes, I am not for one moment suggesting that The Irish News or Sunday Life should take our place in this awful legal ordeal. I would not wish that on anyone. I do not believe the police should have the right to demand any media material and I have long advocated for a shield law to protect the media. And had those two newspapers found themselves in our place I am sure they would have resisted and fought for confidentiality. In those circumstances I would have volunteered my support for them.

What concerns me here is the behavior of the PSNI and the question of why they did not seek material nearer at hand than Boston College?

It has been suggested that one reason is that the PSNI, battling for support from a suspicious Catholic community in the troubled wake of the peace process, is unwilling to confront and embarrass Northern Ireland’s largest Nationalist daily newspaper. Some have argued that this explains why the PSNI served subpoenas on Suzanne Breen when she wrote about dissident IRA matters but ignored Allison Morris when she wrote in a similar vein. I do not know if this explains why the PSNI went to BC rather than to The Irish News but it is an intriguing question.

So what did the PSNI ever do about checking the veracity of the Irish News and Sunday Life articles and tracing their sources? Well, we know from Irish News editor Noel Doran’s article in TheWildGeese.com that, as he put it: “….. PSNI detectives did attempt to obtain the Irish News tape but were informed that we were no longer in possession of any such material”.

But the crucial question is when did that happen? Surely, if the PSNI was up to scratch, it had to be not long after the articles appeared? The answer was provided by none other than Allison Morris who wrote in the Irish News on October 19th, 2011 the following: “Moloney has suggested there is some sort of mystery as to whether the PSNI has attempted to obtain material from the Irish News. In fact the Irish News was approached by the PSNI in June this year. The police were informed I had not retained any material in relation to my discussion with Ms Price and had nothing further to add to what had appeared in the Irish News in February 2010.”

Two things jump out from Morris’ article and both raise serious questions about the PSNI’s Crime Branch, currently led by Assistant Chief Constable Drew Harris, which is in charge of the Dolours Price investigation. The first is that the PSNI waited until June 2011, before it got round to checking with the Irish News about the paper’s interview with a person who is allegedly at the centre of one of Northern Ireland’s most notorious killings and the subject of an unprecedented transatlantic legal action. The Irish News interview appeared in February 2010, PSNI detectives eventually tracked down the newspaper in June 2011. That is a gap of fifteen months. Fifteen months!

The other is the date, June 2011. What else happened in June 2011? Well one thing that did happen that month was that my affidavit, setting out the claim that the Sunday Life article was based on the Irish News’ taped interview with Dolours Price was lodged with the District Court in Boston and made available to the PSNI’s ally in this affair, the US Attorney’s office. Now it may be that a little bird landed on Drew Harris’ shoulder and whispered into his ear that he better send some of his guys round to the Irish News but I’d bet the mortgage that it was my affidavit landing on his desk c/o the US Attorney that sent detectives scurrying to Allison Morris’ desk. In impolite circles this is called ‘Covering Your Arse’.

While we do not yet know whether the PSNI ever got round to talking to Ciaran Barnes about his sources there are really only two conclusions possible about the PSNI’s handling of this matter. One is that its Crime Branch is seriously incompetent. The other is that something more sinister is going on. I could speculate about what this could be but I won’t. But it ought to be investigated by someone. This was the reason I tried to refer all this to the Leveson inquiry. Either way the PSNI’s handling of the matter suggests that something is very seriously amiss in its Crime Branch.

BOSTON COLLEGE REDUX

Throughout the last year or so of legal struggle myself and Anthony McIntyre knew full well that in her interviews as part of the Belfast Project, Dolours Price had made no mention of Jean McConville or her disappearance. But we were not alone. BC also knew this. The academics and administrators there knew that when Ciaran Barnes suggested that she had implicated herself in the McConville disappearance in her interviews with McIntyre that this was complete rubbish and possibly deliberate lies.

In such disgraceful circumstances the claim that she had also admitted giving interviews to BC ought to have been treated with skepticism and at the very least Dolours Price should have been given the benefit of the doubt. But BC chose to believe Ciaran Barnes in this matter despite the fact that his central charge against her was invented, that he had not produced one quote from her in his report to substantiate the claim that she had talked about her BC interviews, and that he even got the name of the college wrong, calling it “Boston University”.

Having invented the contents of her interviews with BC, Ciaran Barnes could just as easily have made up the claim that she had admitted giving the interviews, especially if the goal was to hide the real source for his article, Allison Morris’ taped interview.

The existence of the BC archive was well known by that time and Morris herself had phoned me more than once in early 2010 in an effort to learn what Brendan Hughes had said in his interviews, then about to be published in Voices From The Grave. It would have been natural to link Dolours Price with BC, or have guessed that she might be an interviewee, without having definite knowledge.

Despite all this, BC decided to throw Dolours Price to the wolves. When the college eventually decided to launch a limited appeal to protect the content of other interviews subpoenaed by the PSNI, she was deliberately excluded on the grounds that she had compromised her confidentiality. Not one scintilla of evidence was provided, other than Ciaran Barnes’ yellow journalism, to back up this claim.

Amidst the failure to stand by its own research project by fighting this case to the highest court in the land, the abandonment and disparagement of its researchers and research subjects and the failure to fight for academic freedom on behalf of all America’s scholars, this moment was surely the lowest in BC’s ignoble odyssey through the PSNI subpoenas.