US Supreme Court Issues Stay

Supreme Court of the United States
No. 12A310
ED MOLONEY AND ANTHONY MCINTYRE, Applicants
v.
UNITED STATES, ET AL.

O R D E R

UPON FURTHER CONSIDERATION of the application of counsel for the applicants, the response filed thereto, and the reply,
IT IS ORDERED that the mandate of the United States Court of Appeals for the First Circuit, case Nos. 11-2511 and 12-1159, is hereby stayed until November 16, 2012. If the applicants file a petition for a writ of certiorari on or before that date, then the mandate of the First Circuit is further stayed until the petition is resolved by this Court. Should the petition be denied, this stay shall terminate automatically. In the event the
petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. If the applicants do not file a petition for certiorari on or before November 16, then the stay shall expire at 5 p.m. that day.

/s/ Stephen G. Breyer
Associate Justice of the Supreme Court of the United States
Dated this 17th day of October, 2012.

Stay granted on North interviews

Stay granted on North interviews
CONOR LALLY
The Irish Times
Tuesday, October 2, 2012

THE UNITED States Supreme Court has granted a temporary stay on the handover of taped interviews conducted by author and journalist Ed Moloney and writer and former IRA prisoner Anthony McIntyre with combatants in the Troubles in the North.

Supreme Court Justice Stephen Breyer yesterday granted the stay on the handover of interviews from the Belfast Project at Boston College to the Police Service of Northern Ireland. The stay will be in place until at least October 11th.

On that date the US government is due to formally respond to an application from the attorneys for Mr Moloney and Mr McIntyre seeking the handover be stayed until the court decides whether to hold a full hearing on the case.

The men are involved in legal actions in the US and Northern Ireland with a view to blocking the handing over of the interviews to the PSNI. The recordings include one Mr McIntyre carried out with Dolours Price. The PSNI want that interview to aid its investigation into the 1972 murder of Jean McConville, one of the so-called “disappeared”. Mr McIntyre has said the PSNI obtaining the recordings would place his life in danger. He and Mr Moloney promised the interviewees confidentiality until the interviewees had either consented to publication or died.

Mr Moloney, who lives in New York, has amassed a strong lobby to oppose the release of the material, saying it could harm the peace process.

Appeal launched against IRA tapes being handed over to police

Appeal launched against IRA tapes being handed over to police
Journalists and academics say if tapes from Old Bailey bomber Dolours Price are surrendered it will put their lives at risk
Henry McDonald, Ireland correspondent
The Guardian
Friday 7 September 2012

An appeal will be launched in the US on Friday to prevent secret tapes by a former IRA bomber being handed over to the Police Service of Northern Ireland.

The family of one of the most famous victims of the IRA – Jean McConville, a widow with 10 children – are backing PSNI attempts to seize the recorded testimony. Her daughter Helen McKendry believes the tapes contain information about decision by the IRA leadership in Belfast to order McConville’s murder and secret burial.

But journalists and academics argue that if Boston College surrenders the tapes from IRA Old Bailey bomber Dolours Price it will destroy any chance of an honest, historical inquiry into the Troubles as well as putting their lives at risk.

Lawyers for those who set up and worked for Boston College’s Belfast Project are appealing against the decision in both the US and Northern Ireland to hand over the tapes to the PSNI.

Like every other participant in the project, which included both former IRA and loyalist terrorists, Price agreed to give the interview on the condition that her account would remain confidential until after her death.

The appeals are being made by lawyers acting on behalf of writer Ed Moloney and researcher Anthony McIntyre.

The PSNI is seeking Price’s transcripts as part of their investigation into the IRA murder of McConville in 1972.

Boston College will also appeal later today to limit the handover of interviews from its Belfast Project.

In July, a US appeal court ruled that Boston College interviews should be handed over to the PSNI.

Moloney, a journalist, and McIntyre who is a former IRA member, had applied to the first circuit court of appeal for a re-hearing of the case, but this was rejected last month.

The men said they were “disappointed” but would apply for a hearing at the US supreme court because the case “addresses issues of major constitutional importance for Americans”.

They said the PSNI had applied for access to the interview transcripts under the terms of a Mutual Legal Assistance Treaty (MLAT) between the US and the UK.

In a joint statement, the men said their lawyers would argue that “the MLAT bestows upon the PSNI greater powers in relation to the serving of subpoenas in the US than could be exercised by, for instance, the FBI.

McConville’s family have urged the US authorities to ignore the appeals and press ahead with transferring the tapes to the PSNI. They
allege that the Sinn Fein president, Gerry Adams, gave the order that she be “disappeared” or buried in secret to avoid the political embarrassment of the IRA being responsible for killing a widow with 10 children.

Adams has denied any involvement and has also rejected repeated claims – including by former comrades – that he was in the IRA.

Secret ‘IRA tapes’ appeal to begin

Secret ‘IRA tapes’ appeal to begin
Published Friday, 07 September 2012
UTV News

Legal appeals launched by Boston College and two of its researchers, in relation to the handing over of interviews with a former IRA activist, are set to begin in the USA and Belfast on Friday.

Journalist Ed Moloney and former IRA member-turned-writer Anthony McIntyre interviewed Republicans and Loyalists for as part of the American college’s ‘the Belfast Project’ – a recorded oral history project on the Troubles.

The project, which began in 2001, collected recordings on the understanding they would not be made public until the death of the interviewee.

Former IRA prisoner Dolours Price was one of those who took part. She was jailed for her part in the March 1973 car bombing of the Old Bailey in London, which injured more than 200 people.

The legal challenges centre on tape recordings in which it is believed she may have mentioned the disappearance and murder of a Belfast mother of ten.

Jean McConville went missing in 1972, but her body lay undiscovered for nearly 30 years and was eventually found buried near a Co Louth beach in 2003.

In July, an appeal court in America ordered that a transcript of an interview with Price should be handed over to PSNI officers investigating the historic murder.

On Friday, in Belfast, solicitor Kevin Winters will be seeking a High Court injunction preventing the PSNI from accessing any interviews that may be handed over by the US authorities prior to a hearing for a Judicial Review of the PSNI subpoenas.

They were served on Boston College via the United States Department of Justice.

The application for a Judicial Review is scheduled to be heard on 14 September.

In Boston, attorneys have filed a petition to the First Circuit Court of Appeals seeking a stay on the handover of the Price interviews, until the Supreme Court considers a bid to hear the case.

In a separate appeal with the court, Boston College are trying to limit the number of Belfast Project tapes to be handed over.

Former Belfast Project Director Ed Moloney said that both sets of legal authorities are complaining about the delay caused by the legal challenge.

“Since Mrs McConville was killed in 1972 and it was not until the mid-1990’s that her disappearance was even classified as a murder by the police in Northern Ireland, it ill behooves anyone in legal authority to complain about delays.”

Appeals over Dolours Price interviews to start

Appeals over Dolours Price interviews to start
BBC News
7 September 2012

Legal appeals to prevent interviews with a former IRA bomber from being handed over to the PSNI will begin in Belfast and Boston on Friday.

The interviews with Dolours Price were part of a history project for Boston College.

Lawyers are appealing the decision in both countries to hand over the tapes to the PSNI.

Price agreed to give the interview on the condition that her account would be confidential until after her death.

The appeals are being made by lawyers acting on behalf of researched Ed Moloney and Anthony McIntyre.

The PSNI is seeking her transcripts as part of their investigation into the IRA murder of Jean McConville in 1972.

Also on Friday, Boston College will appeal to limit the handover of interviews from its Belfast Project.

Loyalist and republican paramilitaries gave interviews to the university as part of the project.

In July, a US appeal court ruled that Boston College interviews should be handed over to the PSNI.

Mr Moloney, a journalist, and Mr McIntyre who is a former IRA member, had applied to the First Circuit Court of Appeal for a rehearing of the case, but this was rejected last month.

The men said they were “disappointed” but would now apply for a hearing at the US Supreme Court because the case “addresses issues of major constitutional importance for Americans”.

They said the PSNI had applied for access to the interview transcripts under the terms of a Mutual Legal Assistance Treaty (MLAT) between the US and the UK.

In a joint statement, the men said their lawyers would argue that “the MLAT bestows upon the PSNI greater powers in relation to the serving of subpoenas in the US than could be exercised by, for instance, the FBI.

Price was convicted of her part in the car bombing of the Old Bailey courthouse in London on 8 March 1973. The explosion injured more than 200 people.

Boston and Belfast Appeals Made

BOSTON COLLEGE SUBPOENAS
MOLONEY & MCINTYRE PRESS RELEASE, Sept 6th 2012

As Boston College’s appeal to limit the handover of interviews from its Belfast Project IRA archive begins in front of the First Circuit Court of Appeals in Boston tomorrow (Fri, EST), lawyers for researchers Ed Moloney and Anthony McIntyre will be separately applying to courts in Belfast and Boston to stay the handover of interviews given by the former IRA activist, Dolours Price.

In Belfast, solicitor Kevin Winters will be seeking a High Court injunction tomorrow morning (Fri, 10:00 a.m. GMT) preventing the PSNI from accessing any interviews that may be handed over by the US authorities prior to a hearing for a Judicial Review of the PSNI subpoenas which were served on Boston College via the United States Department of Justice. The application for a Judicial Review is scheduled to be heard on September 14th.

In Boston, attorneys Eamonn Dornan and JJ Cotter have filed a petition to the First Circuit Court of Appeals seeking a stay on the handover of the Price interviews as well as those that are the subject of Friday’s appeal by Boston College, until the Supreme Court considers a bid to hear the case, which has huge constitutional, legal and political consequences, in front of America’s highest court.

The Crown Solicitor’s Office in Belfast rejected a request by Mr Winters to impose a voluntary stay on the interviews saying: “The challenges to the Mutual Legal Assistance Treaty in the United States have currently delayed this investigation by almost 2 years.” The US Attorney’s Office in Boston has similarly rejected any idea of extending the stay and may file its own motion seeking the immediate handover of the materials.

Commenting on this, former Belfast Project Director Ed Moloney said: “Both sets of legal authorities are complaining about the delay caused by our legal challenge. Since Mrs McConville was killed in 1972 and it was not until the mid-1990’s that her disappearance was even classified as a murder by the police in Northern Ireland, it ill behooves anyone in legal authority to complain about delays”.

Belfast Project Case May Go To Supreme Court

Belfast Project Case May Go To Supreme Court
Arguments For BC’s Appeal Begin Sept. 6
By David Cote
News Editor
Boston College Heights
Published: Wednesday, September 5, 2012

Editor’s Note: This story is part of an ongoing series about the subpoenas of the Belfast Project.

Irish journalist and Belfast Project researcher Ed Moloney, together with Belfast Project researcher and former IRA member Anthony McIntyre, recently announced their intention to bring the case of the Belfast Project to the United States Supreme Court. The pair, appealing a decision by the United States First Circuit Court of Appeal that rejected their right to intervene in the Boston College archive case, have repeatedly emphasized the case’s vast constitutional importance and potentially harmful ramifications on the fragile peace process in Northern Ireland and the enterprise of oral history.

“We wish to make it clear that we now intend to apply to the Supreme Court of the United States for a hearing on a case which we believe addresses issues of major constitutional importance for Americans,” Moloney and McIntyre said in a statement.

The Belfast Project legal drama began in May 2011, when interviews conducted with former IRA members Dolours Price and Brendan Hughes were subpoenaed by the United States federal government, on behalf of the United Kingdom, as part of an ongoing investigation by the Police Service of Northern Ireland (PSNI) into the death of Jean McConville, an Irish widow and mother of 10 who was murdered in 1972.

Participants in interviews believed that they had been promised confidentiality until their death, but the subpoenas brought legal pressure on the University to assist the United Kingdom according to a Mutual Legal Assistance Treaty (MLAT), which assures cooperation between the two countries in various legal investigations.

Though BC initially filed motions to quash the subpoenas on the Price tapes, they were denied by the courts and did not appeal, citing Price’s participation in an interview with Irish media in which she mentioned the Belfast Project as a violation of the agreement to confidentiality she signed before her interviews commenced. Brendan Hughes died in 2008 and his interviews were used as the subject of a book written by Moloney, Voices from the Grave, and thus the release of his interviews was not in dispute.

In a Letter to the Editor published in The Heights on Jan. 18, 2012, Thomas Hachey, professor of history and executive director of Irish programs, wrote, “Interviewees in [the Belfast Project] understood that divulging their participation could potentially compromise the underlying premise that such testimony remain undisclosed until the time of their demise.

“That important need for discretion was honored by all surviving participants, with the notable exception of one, Dolours Price, who chose to publicly volunteer her involvement while making some provocative statements.”

“It is a struggle between obligations,” University Spokesman Jack Dunn said in an interview with PBS NewsHour. “We have an obligation as a University to uphold the enterprise of oral history and academic research, which we value greatly, and yet we understand the government’s obligation to comply with the treaty with Great Britain, and I also feel an obligation to the McConville kids, who are looking for answers to the 40-year-old question regarding their mother’s horrific murder.”

Moloney and McIntyre criticized BC for failing to continue the fight against the release of Price’s tapes after the court’s initial ruling, and appealed the decision on the Price tapes independently from the University.

On July 6, Moloney and McIntyre were denied the right to intervene in the case. On July 8, the two announced their intention to file an appeal for a rehearing of the case en banc, which would require that the case be heard in front of the entire appeals court.

On Aug. 20, attorneys Eamonn Dornan and James J. Cotter filed an appeal for a rehearing of the case en banc on behalf of Moloney and McIntyre. In a statement dated Aug. 20, the argument for the rehearing was laid out.

“The First Circuit decision effectively precludes the assertion of U.S. constitutional rights guaranteed in the First and Fifth Amendments to the Constitution,” the two wrote. In addition, they argued that the decision by the First Circuit “bestows upon the PSNI greater powers in relation to the serving of subpoenas in the United States than could be exercised by, for instance, the FBI.”

In addition, the American Civil Liberties Union (ACLU) of Massachusetts announced their intention to file an amicus brief in support of Moloney and McIntyre’s appeal.

Despite their arguments, on Aug. 31 Moloney and McIntyre were denied the right to a rehearing by the First Circuit Court of Appeal, as was the ACLU’s motion.

That same day, Moloney and McIntyre announced their intention for the case to be heard in front of the United States Supreme Court.

“In this case the plaintiffs, Ed Moloney and Anthony McIntyre have been prevented by the First Circuit decision from arguing that the PSNI action is politically motivated and that the material requested by the PSNI was available in Northern Ireland,” the two wrote in a statement dated Aug. 31. “Their lawyers argue that Moloney and McIntyre have been denied their constitutional and statutory rights and protections and suffer violations of constitutional rights if the subpoenas are enforced by the Attorney-General.”

In addition to their appeals of the case in the U.S., Moloney and McIntyre opened a second front in July by filing a review for an injunction of the subpoenas in the Belfast courts.

“The Judicial Review asks that the British Home Office’s request of assistance from the United States be quashed, the subpoenas be declared unlawful, a discontinuation of the PSNI’s application for the material, and for an injunction stopping any material from Boston College being received by the PSNI,” the two wrote in a statement dated July 5.

However, the case did not gain traction and an injunction on the materials was not filed.

While the case of the first set of subpoenas unfolded, BC was involved in a separate case involving a second set of subpoenas.

In August 2011, a separate set of subpoenas had been filed, calling for the release of any material in the Belfast Project archives relating to the disappearance of Jean McConville. Again BC filed a motion to quash the subpoenas, arguing that the subpoena was too broad and threatened oral history as a whole. However, on Dec. 27, 2011, BC was ordered to hand over the tapes by Judge William Young.

Young reviewed the tapes and selected those that he believed fit the description of the subpoena as relating to McConville’s death. Young eventually held that parts of seven different interviews held by BC were relevant to the investigation and should be handed over to the British authorities, a decision which BC appealed, again arguing that the tapes had limited value and the subpoenas were too broad.

Oral arguments for BC’s appeal will begin today, Sept. 6, at the U.S. Court of Appeals in Boston.

“We will argue that the [seven] tapes have limited probative value, and, for the sake of academic research, they should not be turned over to British authorities,” Dunn said. “Our hope is that we will prevail in our case and the only tape which will be subject to transfer to British authorities will be the Dolours Price tape, which was already made public in her interviews with Irish media.”

Boston College Researchers Appeal to U.S. Supreme Court…As Deadline for IRA Tapes Handover Nears

Boston College Researchers Appeal to U.S. Supreme Court…As Deadline for IRA Tapes Handover Nears
Sabina Clarke
PR Newswire
Yahoo News

PHILADELPHIA, Sept. 4, 2012 /PRNewswire-USNewswire/ — On the heels of being denied an ‘en banc’ hearing before a full panel of First Circuit judges, Boston College researchers Ed Moloney and Anthony McIntyre, the central figures in Boston College’s oral history project documenting ‘The Troubles’ in Northern Ireland, have announced their intention to take their case to the United States Supreme Court.

In a joint statement, Moloney and McIntyre said, “The Mutual Legal Assistance Treaty, MLAT, denies American citizens the right to seek redress for grievances as guaranteed by the First Amendment in the U.S. Constitution’s Bill of Rights.”

This case arises from subpoenas issued by the British Government on behalf of the Police Service of Northern Ireland, PSNI, seeking interviews with former IRA activists lodged in the Boston College archive for the purpose of investigating the murder of Jean McConville, a suspected informant on the IRA, in an investigation that has lain dormant for years.

The subpoenas, based on the Mutual Legal Assistance Treaty, MLAT, between the U.S. and the U.K. have never before been used in this type of investigation– in circumstances suggesting a politically motivated propaganda campaign.

In its judgment, the First Circuit ruled that Moloney and McIntyre do not have the right to challenge an MLAT subpoena even when it infringes on their constitutional First and Fifth Amendment rights. This judgement means that American citizens have fewer rights when served with a subpoena from a foreign government than when served with a subpoena from a U.S. law enforcement agency.

This judgement also sharply conflicts with a separate and earlier ruling from the Ninth Circuit which stipulates that individuals do, in fact, have the right to challenge an MLAT in court on several grounds, including violation of constitutional guarantees. In that event, a district court “may not enforce” the MLAT subpoena or a proceeding which “departs from our concepts of due process or fairness.”

With the Ninth Circuit and the First Circuit in conflict over this basic and important issue, their attorneys Eamonn Dornan and JJ Cotter will ask the Supreme Court to exercise its powers to decide an important question of federal law or to resolve a conflict between two U.S. Courts of Appeal.

If the IRA tapes are handed over, the consensus is that it could wreak havoc on the already fragile Northern Ireland Peace Process and have grave implications for future academic research and the integrity of all future oral history projects. If confidentiality cannot be guaranteed, participants in similar historical research projects will be less likely to engage.

The researchers’ attorneys and the American Civil Liberties Union, ACLU, of Massachusetts asserted that British law enforcement could not demonstrate that the subpoenaed materials were essential to a good faith criminal investigation or that information could not be obtained from less sensitive sources by means which would not infringe on First Amendment rights.

The U.S. sponsored Good Friday Agreement was designed to end the days when a police force could arbitrarily engage in politically motivated prosecutions of participants in the combat. However, this case has reached the point where its effects will be felt not exclusively in Northern Ireland but will have a direct impact on the fundamental constitutional rights of all Americans.

 

 

US Supreme Court to hear IRA tapes case

US Supreme Court to hear IRA tapes case
Emily Payne
Sunday Times

TWO Boston College researchers who interviewed IRA members for an oral history project have announced their intention to ask the United States Supreme Court to prevent the tapes from being handed over to the British authorities.

On Friday, the First US Circuit Court of Appeals in Boston, who had previously rejected their case in July 2012, made the decision not to rehear their case.

In a joint statement, Ed Moloney and Anthony McIntyre said their lawyers would argue that “the MLAT [Mutual legal assistance treaty] bestows upon the PSNI [Police Service of Northern Ireland] greater powers in relation to the serving of subpoenas in the US than could be exercised by, for instance, the FBI.

The BBC reported that US citizens could challenge a subpoena served by the FBI on First and Fifth Amendment grounds but are precluded from doing so in the case of subpoenas served by foreign powers under an MLAT.

Prosecutors representing the British authorities in the UK have issued subpoenas seeking information on the murder of Jean McConville in 1972, at the hand of the IRA. They have admitted involvement.

The Belfast Project tapes include interviews with convicted bomber Delores Price. In a separate interview with a newspaper Price claimed that she drove McConville, a mother of ten, to her death.

These subpoenas were issued under a Mutual Legal Assistance treaty between the United States and Britain.

The Belfast Project’s aim was to document “The Troubles”. The researchers had promised their sources that the information from interviews recorded between 2001 and 2006 would not be released until their death.

Moloney, the director of the project, and McIntyre, a former IRA member, believe they could be in danger if the interviews are released. They also say that the release of these interviews would have a negative effect on the future of academic research.

A spokesperson for Boston College, Jack Dunn, had no comment.

Separately, the Boston College is the midst of a legal battle over a second subpoena. They will argue their appeal in court next Friday.

Boston College researchers pledge to turn to Supreme Court to protect IRA interview from British

Boston College researchers pledge to turn to Supreme Court to protect IRA interview from British
Interviewers plan to argue that handing over information gives PSNI more power than the FBI
By CATHY HAYES, IrishCentral.com Staff Writer
Irish Central
Published Sunday, September 2, 2012

Ed Moloney and Anthony McIntyre, researchers who interviewed for IRA members for a Boston College oral history project, have announced their intention to ask the United States Supreme Court to rule that the tapes should not be handed over to the British authorities.

On Friday, the First US Circuit Court of Appeals in Boston made the decision not to rehear their case. The three-judge panel of the appeals court had previously rejected their case in July 2012.

In a joint statement, the men said their lawyers would argue that “the MLAT [Mutual legal assistance treaty] bestows upon the PSNI [Police Service of Northern Ireland ] greater powers in relation to the serving of subpoenas in the US than could be exercised by, for instance, the FBI.

“US citizens could challenge a subpoena served by the FBI on First and Fifth Amendment grounds but are precluded from doing so in the case of subpoenas served by foreign powers under an MLAT,” the BBC reports.

Prosecutors, acting on behalf of the British authorities in the UK, have issued subpoenas seeking information on the murder of Jean McConville in 1972, at the hand of the Irish Republican Army (IRA). They have admitted involvement.

The Belfast Project tapes include interviews with convicted bomber Delores Price. In a separate interview with a newspaper Price claimed that she drove McConville, a mother of ten, to her death.

These subpoenas were issued under a Mutual Legal Assistance treaty between the United States and Britain.

The Belfast Project’s aim was to document “The Troubles”. The researchers had promised their sources that the information would not be released until their death. The interviews were recorded between 2001 and 2006.

Moloney, the director of the project, and McIntyre, a former IRA member, believe they could be in danger if the interviews are released. They also say that the release of these interviews would have a chilling effect on the future of academic research.

A spokesperson for Boston College, Jack Dunn, had no comment when approached by Boston.com.

Separately the Boston College is the midst of a legal battle of separate over a second subpoena. They will argue their appeal in court next Friday.