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

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)

Tying up the loose ends of ‘the Troubles’

Tying up the loose ends of ‘the Troubles’
The case of a dead Irish terrorist has legal and political implications on both sides of the Atlantic.
LOS ANGELES TIMES EDITORIAL
Los Angeles Times
February 4, 2013

The recent death of an Irish terrorist has raised the possibility of a resolution of a tangled legal controversy pitting the U.S. Department of Justice against a college that sponsored a research project about the “Troubles” in Northern Ireland. But it will not be simple.

In 1998, the governments of Britain and Ireland and Protestant and Catholic politicians in Northern Ireland signed the Good Friday Agreement. The historic compact was designed to bring a definitive end to sectarian violence that had cost more than 3,000 lives, and to establish a new political order in which pro-British Protestants would share power with Catholic nationalists.

Three years later, Boston College joined with an Irish journalist and a former member of the Irish Republican Army in an oral history project in which members of Protestant and Catholic paramilitary groups were interviewed about their activities, on the understanding that the transcripts wouldn’t be released until they died.

But, in confirmation of William Faulkner’s observation that “the past is never dead; it’s not even past,” the Belfast Project found itself the target of subpoenas by the Justice Department, acting under a law enforcement treaty between the United States and Britain. The first subpoena sought access to interviews with Brendan Hughes, who died in 2008, and Dolours Price, an unrepentant IRA terrorist who had told a reporter that she was involved in the 1972 kidnapping and execution of Jean McConville, a suspected informant for British security services. A second set of subpoenas sought interviews with other living former IRA members, also as part of the McConville investigation.

A federal district judge was willing to balance the importance of academic research against the U.S. government’s interests and treaty obligations, but in the end ruled that both the Price interviews and material from interviews with seven other former IRA members must be turned over. Because of legal appeals, the material hasn’t been given to British authorities.

Meanwhile, the case became a political cause celebre because of speculation that the interviews might implicate Gerry Adams — the leader of Sinn Fein, the IRA’s political wing — in the McConville killing. Adams has denied any role, but Price, who saw him as a turncoat for signing the Good Friday Agreement, told an Irish newspaper in 2011 that she had taken her orders from him. Then, last week, Price died.

It’s a muddle all right. John Kerry, while he was still a U.S. senator from Massachusetts, expressed the hope that the interviews would remain confidential, lest they undermine the effort to establish a “more promising tomorrow” for Northern Ireland.

We don’t agree with Kerry’s implication that crimes such as the killing of McConville shouldn’t be investigated too thoroughly because of potential political repercussions. Whether Boston College must cooperate with that investigation by releasing the Belfast Project interviews is a different question, however.

In 1972, the Supreme Court refused to rule that journalists had a broad 1st Amendment right to protect the identity of confidential sources. But one of the justices in the 5-4 majority, Lewis Powell, insisted that judges could still balance the assertion of a reporter’s privilege against “societal interests” on a case-by-case basis.

In doing so, lower courts may take into account whether the information being sought is relevant and whether prosecutors have exhausted all other sources of information before demanding that reporters violate a pledge of confidentiality. The result is that journalists enjoy a fair measure of protection for confidential sources, a privilege that benefits the public by promoting the free flow of information. Researchers such as those in the Belfast Project should have the same protection. The director of the project was in fact a prominent journalist.

Price’s death may render moot the dispute over her interviews. Boston College’s lawyers also argue that it undercuts the rationale for the second set of subpoenas, which referred to “criminal matters in the matter of Dolours Price.” But if British authorities continue to press for confidential information from the Belfast Project, the Supreme Court should be prepared to engage in the careful scrutiny Justice Powell described in 1972.

International Sharing Of Evidence: A 2-Way Street

International Sharing Of Evidence: A 2-Way Street
Michael M. Rosensaft
Law360, New York
January 08, 2013

As much as United States regulators and prosecutors have expanded their focus to the international sphere in recent years, other countries have intensified their scrutiny of U.S. companies and individuals as well. As the D.C. Circuit explained as far back as 1989, the United States has welcomed those efforts with the “hope … that by making assistance generously available through the good offices of the United States officials and courts, our country would set an example foreign courts and authorities could follow when asked to render aid to United States courts, authorities, and litigators.” In re Letter of Request from Crown Prosecution Serv. Of United Kingdom, 870 F.2d 686, 690 (D.C.Cir. 1989).

That policy has continued to this day with the United States now a signatory to mutual legal assistance treaties (“MLATs”) with 56 other countries, in addition to multilateral treaties and mutual legal assistance agreements. In short, any evidence collected by United States law enforcement that touches on international issues has a very good chance of ending up in the hands of one or more foreign prosecutors.

There are some restrictions on information that is turned over to foreign prosecutors pursuant to an MLAT or, if there is no treaty with the foreign country, a letter rogatory, which is simply a written request from a foreign entity that does not rely on an existing treaty. See 28 U.S.C. § 1782. Each MLAT is separately negotiated and most contain some language restricting certain disclosures of evidence depending on the sensitivities of the respective countries. See, e.g., Supplemental Treaty Between the United States of America and the Federal Republic of Germany on Mutual Legal Assistance in Criminal Matters, Treaty Doc. 109-13, Art. 9 (Oct. 18, 2009)[1] (request for banking information must contain sufficient information to reasonably suspect that the person investigated engaged in a criminal offense); Treaty Between the United States of America and the Government of the Republic of India on Mutual Legal Assistance in Criminal Matters, Treaty Doc. 107-3, Art. 3 (Oct. 3, 2005)[2] (request may be denied if it is a political offense or relates to military law).

There are also restrictions if the sharing of evidence may infringe a constitutionally protected right. For example, in In re Premises Located at 180 140th Ave. NE, 634 F.3d 557 (11th Cir. 2011), the Russian government had issued an MLAT request for records from a fishing company in furtherance of their prosecution of an individual for illegal crabbing. The fishing company objected, arguing generally that the Russian system of justice was corrupt and specifically that the foreign prosecutors had violated statute of limitations restrictions under Russian law. Id. at 573.

The Eleventh Circuit acknowledged that an MLAT request must “not be honored if the sought-after information would be used in a foreign judicial proceeding that departs from our concepts of fundamental due process and fairness,” although they ultimately rejected the complaints as too general and technical to quash the subpoena. Id. at 572. Nevertheless, the court was clear that with the right set of facts, such an objection could succeed.

In one interesting case now percolating before the U.S. Supreme Court, a New York journalist and a researcher who had worked on an oral history project at Boston College moved to quash a subpoena pursuant to the U.S.-U.K. MLAT demanding interviews the research team had done of former members of the Irish Republican Army. See In re Request from the United Kingdom, 685 F.3d 1 (1st Cir. 2012). The British government wanted the taped interviews to aid in their investigation of the 1972 death of a British informant. Id. The interviews were conducted to ensure the anonymity of the interviewees with confidentiality agreements in place, and the researcher and journalist objected on the grounds that turning over the interviews would violate their First Amendment Rights. Id. at 4.

The First Circuit rejected the challenge, weighing their First Amendment rights against what they characterized as an extremely strong public interest where “two branches of the federal Government, the Executive and the Senate, have expressly decided to assume these treaty obligations [in exchange for] valuable reciprocal rights.” Id. at 18. However, that did not end the matter. The litigants are seeking a writ of certiari to the United States Supreme Court, and on Oct. 17, Justice Stephen Breyer issued an order staying the First Circuit’s mandate while the writ is pending.[3]

Whatever small chinks may exist in the MLAT armor, however, the truth of the matter is that foreign prosecutors and foreign regulators obtain evidence from United States law enforcement in a host of other ways that typically escape any kind of judicial review.

When there are parallel criminal prosecutions in the United States and in a foreign country, Federal Rule of Criminal Procedure 6(e)(3)(E) allows a federal prosecutor to share grand jury materials with a foreign court or prosecutor for use in their official criminal investigation through an application to the court. Notably absent from the rule is any standard by which a court is to judge whether disclosure is proper, and thus the requests are routinely granted. Moreover, because there are ongoing criminal investigations, such requests are typically made under seal with no notice to any party that their information is going to be shared with a foreign entity.

Additionally, regulators such as the U.S. Securities and Exchange Commission have signed bilateral cooperative arrangements with a host of foreign governments[4] and are also signatories to broader multilateral agreements — the most prominent being the Multilateral Memorandum of Understanding Concerning the Consultation and Cooperation And The Exchange Of Information sponsored by the International Organization of Securities Commissions, where unsolicited cooperation is encouraged.[5]

Commissioner Elisse B. Walter testified in March of this year that nearly 30 percent of the SEC’s enforcement cases had an international element to them.[6] In 2011, the SEC made a record 772 formal requests to foreign authorities for enforcement assistance and responded to 492 requests from foreign regulators and law enforcement, and already by March the SEC was on track to meet or surpass those numbers.

In sum, anyone giving evidence or testimony to United States prosecutors, law enforcement or regulators must assume that the evidence will be turned over to foreign officials with little fanfare. Increased international cooperation has led not only to more domestic prosecutions, but has strengthened foreign investigations and prosecutions as well. As Commissioner Walter testified, the United States’ cooperation with foreign powers is not “one-way,”[7] and if one is lucky enough to receive notice that evidence is being shared, it is important to act quickly and be ready for a long, uphill battle.

–By Michael M. Rosensaft, Katten Muchin Rosenman LLP

Michael Rosensaft, a former federal prosecutor in the Southern District of New York, is a partner in Katten Muchin’s white collar defense group in New York.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] http://www.state.gov/documents/organization/188786.pdf

[2] http://www.gpo.gov/fdsys/pkg/CDOC-107tdoc3/pdf/CDOC-107tdoc3.pdf

[3] http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12a310.htm

[4] http://www.sec.gov/about/offices/oia/oia_cooparrangements.shtml

[5] http://www.iosco.org/library/pubdocs/pdf/IOSCOPD386.pdf

[6] http://www.sec.gov/news/testimony/2012/ts032212ebw.htm

[7] http://www.sec.gov/news/testimony/2012/ts032212ebw.htm

United States of America: Supreme Court must protect confidentiality of researchers’ sources

United States of America: Supreme Court must protect confidentiality of researchers’ sources
STATEMENT
ARTICLE 19
10 Jan 2013

ARTICLE 19 calls on the US Supreme Court to uphold the constitutional right to protect sources. This right is particularly important for journalists and researchers working internationally, including those working in conflict and post-conflict societies.

In its amicus brief for the ‘Belfast Project’ case, ARTICLE 19 argues that failure to grant such protection would have a dramatic chilling effect on researchers and their sources worldwide. The case concerns information gathering about the conflict in Northern Ireland and ARTICLE 19 argues that without such protection:

  • People’s ability to carry out human rights research would be directly threatened
  • Researchers and human rights defenders would no longer be able to perform their role of neutral observers
  • Researchers and human rights defenders would no longer be able to act as a conduit of important information to the public.

Background

In December 2012, ARTICLE 19 submitted an amicus brief to the U.S. Supreme Court in the case of Moloney v. United States. The case concerns two professional researchers, Ed Moloney and Anthony McIntyre, who worked with Boston College for five years to compile an oral history of the ‘Troubles.’ This is the name commonly given to the 30-year period of conflict in Northern Ireland in the second part of the 20th Century.

This research, known as the ‘Belfast Project’, involved interviews with former members of paramilitary groups carried out between 2001 and 2006. Because of its sensitive nature and the potential risks that it posed to both researchers and participants, all interviews were given following a promise that each interviewee’s statement would remain confidential in an archive at Boston College in the United States until the interviewee died.

Five years after the interviews were completed, Boston College was served with a subpoena by the U.S. Department of Justice to release the confidential interview tapes. This subpoena was the result of a request from the British law enforcement authorities, submitted under a US-UK Mutual Legal Assistance Treaty (‘US-UK MLAT’). The researchers refused to comply because the tapes were of interviewees who were still alive, which meant that the promise of confidentiality still applied. However, the lower federal courts maintained that the researchers had no constitutional right to be heard on their objection to the request under the First Amendment to the U.S. Constitution. The case is currently pending request for a hearing at the U.S. Supreme Court.

Points made by ARTICLE 19

In the amicus brief, ARTICLE 19 explains why the Supreme Court should clarify that journalists and researchers possess a constitutional right to protect the confidentiality of their sources, including a right to be heard on objections to disclosure. The brief shows that:

  • This right is particularly important for researchers working internationally and in conflict and post-conflict societies.
  • There is growing international support for – and a wide acceptance of – the right to keep one’s sources confidential when gathering and disseminating information in the public interest. This right has been recognized in constitutions and legislation of many different countries, such as Angola, Argentina Armenia, Austria, Brazil, Burundi, Croatia, Ecuador France, Germany Georgia, Lithuania, Mexico, Mozambique, the Netherlands, Paraguay, Poland Romania, or Sweden.
  • This right includes a right to present evidence in support of objections, and can only be limited under exceptional circumstances
  • International courts, including the European Court of Human Rights and the International Criminal Tribunal for the Former Yugoslavia, have interpreted the right to protect sources in a broad manner. They have done this with the aim of providing the greatest protection for the free flow of information. They have also done this to ensure the ability of journalists and other communicators, including non-governmental organisations and human rights defenders, to report on matters of public interest.

ARTICLE 19 argues that researchers and human rights defenders who collect information in conflict and post-conflict areas perform a crucial function. When an investigation into a foreign conflict becomes the target of a foreign subpoena, special problems arise for the protection of freedom of expression.  The existence of an MLAT should not undermine such protections for US-based conflict researchers. Reporting on human rights abuses, conflict conditions, and war crimes is often the first step in attracting the world’s attention and international response. Forced disclosure of confidential research materials places these journalists, researchers, and their sources at risk.

ARTICLE 19 also shows that a failure to grant protection in this case could have worldwide repercussions. Too often, foreign governments have their own reasons for singling out journalists and their sources and authoritarian regimes that stifle open dissent commonly harass journalists.  A US-based researcher or human rights defender reporting on a foreign conflict could face further discovery requests from foreign law enforcement agencies. This could, in turn, lead to retribution and threaten future access to sources around the world. This problem could be repeated as the United States concludes MLATs with more and more countries, if there is no opportunity for objection.  Even a call for disclosure from a legitimate foreign investigation could pose a serious threat to researchers, human rights defenders and their sources.

Several killings during the time of the Belfast Project interviews highlight the threat to researchers and informers in this particular case.

  • In 2001, loyalist paramilitaries murdered a journalist, Martin O’Hagan, in County Armagh.
  • Also in 2001, police informer William Stobie was murdered by the Ulster Defence Association (UDA) after providing information about the Troubles-related murder of Pat Finucane over a decade before.
  • In 2005, the year before the Belfast Project interviews were completed, former loyalist leader Jim Gray was murdered by the UDA on suspicion of intending to give information to the police.
  • Also in 2005, a high-ranking member of the Irish Republican Army (IRA), Dennis Donaldson, admitted to having been a spy for British intelligence. The following year he was murdered by republican paramilitaries.

Violence persists to this day. Serious threats against journalists and informants continued in 2012.

  • In August, death threats were made against a Belfast-based reporter, who was accused of being a ‘republican supporter’.
  • In November, Real IRA supporters made death threats against a female journalist who had been reporting about the murdered Real IRA boss, Alan Ryan.
  • In December 2012, a pipe bomb was left at the front door of a Northern Ireland press photographer.

Courts have previously decided that these conditions warrant the protection of sources. In 2009, for example, the Recorder of Belfast halted a police request for a journalist’s sources. The journalist had received information about the shooting of four soldiers (two of whom died) and two pizza delivery men at Massereene Barracks by the Real IRA. Although the Court recognised that the information was of substantial value to the investigation of a heinous and high-profile crime, it nonetheless refused to order disclosure.

ARTICLE 19 therefore believes that researchers in this and other cases, as well as reporters and human rights defenders covering conflict and post-conflict areas, should not have their confidences betrayed in the United States. We call on the Supreme Court to grant a hearing in this case and to rule in favour of protecting their sources.

ARTICLE 19 appreciates the support of Snell and Wilmer LLP, who are acting as counsel for ARTICLE 19 in this case, in the preparation of this amicus brief. 

NOTES:

For more information please contact Barbora Bukovska:

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

Troubles Archive Hearing Causing Political Stirrings

Troubles archive hearing causing political stirrings
Ray O’Hanlon
THE IRISH NEWS
WEDNESDAY JANUARY 2 2013

• BOSTON TAPES: The US Supreme Court is considering a petition from researchers for the Boston College-based Belfast Project Ed Moloney and Anthony McIntyre to overturn a decision by the US First Circuit of Appeals denying their effort to challenge subpoenas demanding that archived interviews be handed over to the PSNI

By a curious end of year legal and political alignment, the highly contentious Boston College Troubles archive case could get a hearing before the United States Supreme Court sometime in the first weeks of 2013. The north and its affairs haven’t had too much of an airing before SCOTUS (Supreme Court of the United States). The Joe Doherty case did make it to the court door, but that was quite a few years ago now.

The legal aspects of the case have been swirling around for some time.

The political aspect now aligning with them concerns Senator John Kerry, who, early in 2012, wrote to Secretary of State Hillary Clinton expressing his concern over Justice Department subpoenas in the case. Mr Kerry is now President Obama’s choice to succeed Mrs Clinton, who is taking her leave of America’s top foreign policy job.

The case in a nutshell: The Supreme Court is considering a petition from Ed Moloney and Anthony McIntyre. researchers for the Boston College-based Belfast Project, to overturn a decision by the US First Circuit of Appeals denying their effort to challenge subpoenas demanding that archived interviews be handed over to the PSNI.

The subpoenas were issued by the US Department of Justice on behalf of the PSNI, but the court issued a stay order on any action based on those subpoenas.

Thus far all eyes have been on the lawyers.

But it is now the prospect of two members of President Obama’s cabinet taking contrary positions on the case that was causing the greatest political stirring in the waning days of the year.

As stated, a little under a year ago, Mr Kerry wrote to Mrs Clinton (at time of writing in hospital being treated for a blood clot) expressing his concern over the releasing of Troubles archival material front the Boston College library.

In his letter, penned as chairman of the Senate Foreign Relations Committee, Mr Kerry said he was writing “with concern about the ongoing court efforts on behalf of the United Kingdom to obtain documents and recordings from Boston College’s Oral History Archive on the Troubles in Northern Ireland.”

Stated Mr Kerry in part: “I know you’ll understand that this matter is of interest to me for a number of reasons. First, it has a profound impact on Boston College, a highly respected university in Massachusetts, as well as implications for the confidentiality of other research projects of this nature.

“More broadly, as chairman of the Senate Foreign Relations Committee, l am obviously concerned about the impact that it may have on the continued success of the Northern Ireland peace process. It is possible that some former parties to the conflict may perceive the effort by the UK authorities to obtain this information as contravening the spirit of the Good Friday Accords. I am proud of the role our government – and the Clinton Administration specifically – played to bring about that fragile peace. It would be a tragedy if this process were to upset the delicate balance that has kept the peace and allowed for so much progress in the past 14 years.”

Mr Kerry. who is a graduate of Boston College Law School and carried the Democratic banner in the 2004 presidential election, wrote that given his “deep concern.” he had spoken with Attorney General Eric Holder about the case.

Mr Kerry, in his letter to Mrs Clinton, concluded: “I fully recognise that the United Kingdom has invoked the provisions of our Mutual Legal Assistance Treaty and that this is clearly a factor which affects our flexibility dealing with such a request. Nonetheless, given the close relationship we have with the United Kingdom and the deep and enduring interest all of us share in seeing a lasting peace in Northern Ireland, I would urge you to work with the British authorities to reconsider the path they have chosen and revoke their request.”

Mr Kerry’s conversation with Mr Holder could soon resume in the White House cabinet room should Kerry, as expected, be named to succeed Mrs Clinton.

Meanwhile, what are the odds of the Supreme Court actually taking up the Boston College case? Well, a degree of interest has clearly been shown by the court and that’s usually a strong pointer. Certainly there are issues concerning academic and press freedom, confidentiality, and the pursuit of justice, wrapped around and woven through the case. And all of these are of concern to the justices all days of every year. So the chances of a hearing? Better than even is a fair bet.

Links:

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

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

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

(begins 1:37 PM EST)

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

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

Ed Moloney (EM): No problem, Sandy.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SB: You’re quite right. Unfortunately…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And this is their opportunity to have revenge.

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

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

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

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

EM: No problem.

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

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

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

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

(ends 1:48 PM EST)

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

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

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

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

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

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

Scholars Urge Supreme Court to Protect Researchers’ Pledges

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

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

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

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

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

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

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

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

Social Science Scholars Support Supreme Court Petition

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

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

QUOTES:

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

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