Boston College terror tapes case may go to US Supreme Court

Boston College terror tapes case may go to US Supreme Court
News Letter
Published on Sunday 2 September 2012

THE US Supreme Court is to be asked to hear what will be the last legal attempt to block the PSNI’s request for access to an archive of taped interviews with Troubles era terrorists.

The latest legal bid to stop the Boston College recordings being handed over to the police failed at the end of last week.

The two men who were behind the project — journalist Ed Moloney and former IRA man Anthony McIntyre, who is now an academic — had applied for an ‘en banc’ appeal court hearing after a series of other legal challenges had failed.

An en banc hearing which would have allowed them to have the case heard before the entire bench of the First Circuit Court of Appeal after a panel of judges rejected their appeal.

However, that application was dismissed on Friday. Mr Moloney and Mr McIntyre immediately made clear that they intended to appeal to the US Supreme Court in a final attempt to stop the tapes being released.

There is no guarantee that the Supreme Court will even agree to hear the case, as each year it receives thousands of requests for hearings.

In a statement, Mr Moloney and Mr McIntyre said that they intended to apply to the Supreme Court as they believed that the case raised “issues of major constitutional importance for Americans”.

They said: “The First Circuit’s decision means that the IRA interviews lodged at Boston College could theoretically be handed over to the PSNI next Friday, September 7, on the same day as Boston College’s own appeal comes before the First Circuit Court of Appeal in Boston.

“The application is based on a number of issues of great public interest and constitutional importance, not least that one effect of the First Circuit decision is to give foreign law enforcement agencies greater power over US citizens in respect of subpoenas than could ever be exercised by domestic agencies.”

The PSNI initially requested access to the Boston College vault last March and since then has faced a series of legal challenges to its request, initially from Boston College and then from Mr Moloney and Mr McIntyre.

Detectives believe that the interviews contain details of how mother-of-10 Jean McConville was murdered and came under pressure to reinvestigate the atrocity when it emerged in 2010 that former IRA commander Brendan Hughes had told researchers that Gerry Adams personally ordered Mrs McConville’s murder.

The Sinn Fein president, who denies ever being a member of the IRA, has denied Hughes’ claim.

Irish Troubles researchers vow to go to US Supreme Court to protect B.C. interviews

Irish Troubles researchers vow to go to US Supreme Court to protect B.C. interviews
By Martin Finucane | GLOBE STAFF
Boston Globe
AUGUST 31, 2012

Two researchers who were involved in interviewing former combatants in the Irish Troubles for a Boston College oral history project say they’ll ask the US Supreme Court to rule that interviews should not be turned over to the British government.

Ed Moloney and Anthony McIntyre announced their intentions after a decision Friday by the First US Circuit Court of Appeals in Boston not to rehear — or have the full court hear — the case. A three-judge panel of the appeals court had previously rejected their appeal in July.

“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,” the men said in a statement.

On behalf of unidentified law enforcement officials in the United Kingdom, federal prosecutors have issued subpoenas seeking information related to a 1972 slaying that the Irish Republican Army has admitted its involvement in.

The subpoenas were issued under a Mutual Legal Assistance Treaty between the United States and Britain.

But the Belfast Project, whose goal was to document the Troubles, a decades-long period of violence, promised both Irish republican and British loyalist former combatants that their statements would not be released until their deaths. The project began in 2001 and interviews were recorded between 2001 and 2006.

Moloney, the director of the project, and McIntyre, a former IRA member, could be in danger if the interviews are released to the British government, the researchers’ lawyers have said. They have also argued that the release of the interviews would have a chilling effect on academic research in the future.

Jack Dunn, a Boston College spokesman, had no comment on the two men’s case, which they hope would block a subpoena for an interview with former IRA member Dolours Price.

Boston College, meanwhile, continues a separate legal battle over a second subpoena seeking other materials. The college will argue its case in the appeals court in Boston next Friday.

Christina DiIorio Sterling, a spokeswoman for the US attorney’s office, didn’t returm a message seeking comment.

Boston College IRA tapes case to go to US Supreme Court

Boston College IRA tapes case to go to US Supreme Court
BBC News
31 August 2012

A legal battle to prevent interviews with an IRA bomber from being handed over to police in Northern Ireland is to be taken to the US Supreme Court.

Ed Moloney and Anthony McIntyre conducted the interviews during a history project for Boston College.

They claimed the move would give foreign police agencies greater power over US citizens than the FBI.

The Police Service of Nothern Ireland (PSNI) is seeking the transcripts as part of an IRA murder investigation.

The taped interviews, with convicted bomber Delores Price, were conducted as part of the Boston College Belfast Project which began in 2001.

Ms Price was among a number of former republican and loyalist paramilitaries who were interviewed about their activities during the Troubles in Northern Ireland, on the condition that their accounts would remain confidential until after their deaths.

The PSNI is seeking access to her transcripts as part of their investigation in the the IRA murder of Jean McConville in 1972, after Ms Price gave an another interview to a newspaper in which she allegedly claimed to have driven the Belfast mother of ten to her death.

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

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

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.

“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.”

They added that 62 countries have signed MLATs with the US, and said some of them had “poor human rights records”.

Boston College is also appealing against the decision to hand over the tapes, but separately from the two men.

Its appeal will be heard in Boston on Friday 7 September, and Mr Moloney and Mr McIntyre said tapes could “theoretically be handed over to the PSNI” on that date.

The Belfast Project lasted five years and involved academics, historians and journalists.

The researchers have consistantly argued that releasing the documents could risk the lives of people who gave testimonies and damage the peace process in Northern Ireland.

Ms 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.

Moloney & McIntyre Announce Their Intention to Take Case to Supreme Court

Moloney & McIntyre Announce Their Intention to Take Case to Supreme Court
Press Statement
From Ed Moloney & Anthony McIntyre
Friday August 31st 2012

WITH SEVEN DAYS TO GO BEFORE BOSTON COLLEGE INTERVIEWS MUST BE HANDED TO PSNI, MOLONEY & McINTYRE ANNOUNCE THEIR INTENTION TO TAKE CASE TO SUPREME COURT

We are disappointed that the First Circuit Court of Appeal has today rejected our petition for an en banc rehearing of our appeal against that court’s decision denying us the right to intervene in the Boston College archive case. However 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.

The First Circuit’s decision means that the IRA interviews lodged at Boston College could theoretically be handed over to the PSNI next Friday, September 7th on the same day as Boston College’s own appeal comes before the First Circuit Court of Appeal in Boston.

The application is based on a number of issues of great public interest and constitutional importance, not least that one effect of the First Circuit decision is to give foreign law enforcement agencies greater power over US citizens in respect of subpoenas than could ever be exercised by domestic agencies.

The subpoenas were issues under the terms of a Mutual Legal Assistance Treaty (MLAT) between the US and the UK and originated from the Police Service of Northern Ireland (PSNI). Messrs Moloney & McIntyre had appealed a lower court’s ruling denying them the right to intervene in the case and the First Circuit upheld that decision.

The First Circuit decision effectively precludes the assertion of U.S. constitutional rights guaranteed in the First and Fifth Amendments to the Constitution. In the case of the Boston College archives the Constitution guarantees, prior to the enforcement of the subpoena, the consideration of the free flow of historical documents to the American public and the protection of Ed Moloney and Anthony McIntyre – and their interviewees – against the deprivation of life, liberty or property without due process of law.

Ed Moloney and Anthony McIntyre’s lawyers will argue at the Supreme Court that the MLAT 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. U.S. 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. Sixty-two countries have signed MLAT’s with the U.S., some of which have poor human rights records.**

Their lawyers will also argue, inter alia, that the First Circuit panel conflicts with Supreme Court rulings in the landmark judgement, Branzburg v. Hayes in as much as that case permitted journalists to seek First Amendment protection against subpoena powers in order to demonstrate bad faith on the part of the requesting authority.

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. 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.

Eamonn Dornan and James J Cotter also argue that because this is a case of first impression, as the First Circuit panel recognized, a re-hearing is warranted.

Here is the full list of countries which have signed MLAT’s with the U.S.: http://acfcs.org/sites/default/files/United%20States%20Mutual%20Legal%20Assistance%20Treaties.pdf

NOTE ON MLATS:

The US enacted MLATs with 62 countries during the years 1981 to 2010. The US State Department has also noted human rights problems in many of these same countries. The US Bureau of Democracy Reports on Human Rights Practices for 2011 notes a range of problems such as impairing freedom of the press (Argentina), violence against women and children (Bulgaria), violence against religious minorities (Egypt), government interference in elections (Russia), government harassment of the media and journalists (Venezuela).
Source: http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper

Countries that the US has MLATs with and reports of human rights problems from the US Bureau of Democracy, Country Reports on Human Rights Practices for 2011

Argentina 2004 (date treaty went into effect)
The principal human rights problems included use of excessive force by police, sometimes resulting in deaths; actions that risk impairing freedom of the press; and continuing infringements on the rights of indigenous people.
Other human rights problems included poor prison conditions, including mistreatment of some prisoners; occasional arbitrary arrest and detention; prolonged pretrial detention; continued concerns about judicial efficiency and independence; official corruption; domestic violence against women; child abuse; sex trafficking and forced labor, primarily within the country; and child labor.
Judicial authorities prosecuted a number of officials who committed abuses during the reporting period; however, some officials engaged in corruption or other abuses with impunity.

Bulgaria 2010
The marginalization of the Romani minority remained Bulgaria’s most pressing human rights problem. Also of note was right-wing extremist violence against Roma, Muslims, and other religious minorities. Corruption continued to be a drag on the government’s capabilities and public confidence in the judiciary and other state institutions.
Other human rights problems included harsh conditions in prisons and detention facilities, including overcrowding. Mistreatment of prisoners and detainees, especially members of minorities, was also alleged. There were also long delays in the judicial system; apparent abuse of wiretapping; violence and discrimination against women; violence against children; discrimination against members of the Romani and Turkish ethnic minorities; anti-Semitic vandalism; trafficking in persons; and discrimination against persons with disabilities, against lesbian, gay, bisexual, and transgender persons, and persons with HIV/AIDS.

Egypt 2001
The most significant human rights problems during the year were attacks on demonstrators, violence against religious minorities, the use of military courts in civilian cases, and arbitrary arrest, especially as permitted under the Emergency Law. Authorities harassed and pursued a broad-based investigation of nongovernmental organizations (NGOs) and their staff; state media and government figures branded many civil society activists “traitors” in a campaign against foreign funding of civil society groups. Security forces and civilian thugs attacked demonstrators during the year; these attacks, along with clashes among opposing groups of demonstrators, killed at least 930 persons. Beginning on January 28, authorities arrested and tried approximately 12,000 civilians in military courts that lacked fundamental due process procedures for offenses ranging from “thuggery” to “insulting the military.” The SCAF expanded the Emergency Law, in place almost continuously since 1967, to include broad offenses such as “causing internal tensions.” Under the Emergency Law, citizens were subject to arbitrary arrest and detention and unfair judicial procedures, although the transitional authorities primarily applied the code of military justice, rather than the Emergency Law, against demonstrators during the year.
Other human rights problems included physical abuse and torture by security forces, poor prison conditions, and governmental restrictions on freedom of expression, assembly, and association. Authorities detained journalists and bloggers for criticizing the military. The previous government severely restricted Internet freedom when it cut connections to telecommunication networks during the peak of antigovernment demonstrations. After the revolution security forces, including military police, used excessive force to disperse protesters and specifically harassed female protesters. Authorities continued to enforce onerous restrictions on non-Muslims establishing and repairing places of worship, and non-Muslims were targets of government and societal violence. The government continued to shoot African migrants attempting to cross the Sinai Desert en route to Israel. Domestic violence and societal discrimination against women was widespread.

Russia
The most significant human rights problems during the year involved:
1. Violations of Democratic Processes: Parliamentary elections were held in December; domestic and international observers described these elections as marked by government interference, manipulation, electoral irregularities, and restrictions on the ability of opposition parties to organize, register candidates for public office, access the media, or conduct political campaigns.
2. Administration of Justice and Rule of Law: Individuals who threatened powerful state or business interests were subjected to political prosecution, as well as to harsh conditions of detention. The conditions of prisons constituted a major violation of the human rights of many prisoners, who were subjected to poor medical care, lack of basic human needs, and abuse by prison officials. These conditions at times resulted in death. The government did not take adequate steps to prosecute or punish most officials who committed abuses, resulting in a climate of impunity. Rule of law was particularly deficient in the North Caucasus, where the conflict between the government and insurgents, Islamist militants, and criminal forces led to numerous human rights abuses by security forces and insurgents, who reportedly engaged in killing, torture, physical abuse, and politically motivated abductions. In addition the government of Ramzan Kadyrov in Chechnya continued to violate fundamental freedoms, engage in collective retribution against families of suspected militants, and foster an overall atmosphere of fear and intimidation.
3. Freedom of Expression: While there was free expression on the Internet and in some print and electronic media, self-censorship and the government’s ownership of and pressure on some print and most broadcast media outlets limited political discourse. Some journalists and activists who publicly criticized or challenged the government or well-connected business interests were subject to physical attack, harassment, increased scrutiny from government regulatory agencies, politically motivated prosecutions, and other forms of pressure. Attacks on and killings of journalists and activists occurred, and a number of high-profile cases from previous years remained unsolved. During the December Duma elections, Web sites that published reports of electoral fraud were disabled by distributed denial of service (DDoS) attacks.
Other problems observed during the year included physical abuse of conscripts by military officers; restrictions on the right to free assembly; widespread corruption at all levels of government and law enforcement; violence against women and children; trafficking in persons; xenophobic attacks and hate crimes; societal discrimination, harassment, and attacks on religious and ethnic minorities and immigrants; societal and official intimidation of civil society and labor activists; discrimination against lesbian, gay, bisexual, and transgender (LGBT) persons; limitations on the rights of workers..

Venezuela 2004
The principal human rights abuses reported during the year included government actions to impede freedom of expression and criminalize dissent. The government harassed and intimidated privately owned television stations, other media outlets, and journalists throughout the year, using threats, fines, property seizures, targeted regulations, and criminal investigations and prosecutions. The government did not respect judicial independence or permit judges to act according to the law without fear of retaliation. The government used the judiciary to intimidate and selectively prosecute political, union, business, and civil society leaders who were critical of government policies or actions. Failure to provide for the due process rights, physical safety, and humane conditions for inmates contributed to widespread violence, riots, injuries, and deaths in the country’s prisons.
In addition, the following human rights problems were reported by nongovernmental organizations (NGOs), the media, and in some cases the government itself: unlawful killings, including summary executions of criminal suspects; torture and other cruel, inhuman, or degrading treatment; prison violence and harsh prison conditions; inadequate juvenile detention centers; arbitrary arrests and detentions; corruption and impunity in police forces; corruption, inefficiency, and politicization in a judicial system characterized by trial delays and violations of due process; political prisoners; interference with privacy rights; restrictions on freedom of expression; corruption at all levels of government; threats against domestic NGOs; violence against women; anti-Semitism in the official media; trafficking in persons; violence based on sexual orientation and gender identity; and restrictions on workers’ right of association.