Amicus Curiae Brief of ACLU in Support of Appellants Moloney & McIntyre


ACLU joins fight to prevent disclosure of BC Belfast Project documents on conflict in Northern Ireland
Academic freedom at stake.
Wednesday, February 29, 2012

BOSTON — The American Civil Liberties Union of Massachusetts has submitted a friend of the court brief in support of two Boston College researchers who are challenging a court order that the college turn over confidential material obtained as part of the researchers’ work for BC’s Belfast Project oral history of the “Troubles” in Northern Ireland in the 1960s through 1990s. The British government is demanding the documents through the offices of the US government. The two researchers, Anthony McIntyre and Ed Moloney, have asked the US Court of Appeals for the First Circuit to block the release. Their appeal will be heard in Boston on April 4.

The US District Court refused to permit the two researchers to join the case, saying that BC officials would adequately defend their rights. The college subsequently failed to appeal the initial ruling ordering disclosure, although it recently filed a notice of a partial appeal involving another subpoena for records that the US District Court also ordered to be handed over to the government.

At issue is whether researchers have a right to defend in court pledges of confidentiality made to their sources on matters of legitimate public concern, particularly where, as here, the safety of the researchers and those they interviewed is at risk from such disclosure.

“It is essential that those who assume confidentiality obligations in exchange for obtaining information have the right to oppose attempts by public or private parties to compel disclosure,” said ACLU of Massachusetts cooperating attorney Jonathan Albano, deputy managing partner for the Boston office of Bingham McCutchen LLP. “Prohibiting academic researchers from defending their pledges of confidentiality–even when their own personal safety is at risk–would be an alarming and unprecedented infringement on First Amendment interests.”

On December 27, 2011, US District Court Judge William G. Young ordered Boston College to turn over all the interviews requested by the British government in the first subpoena relating to interviews with Dolours Price. This and an earlier order denying Moloney and McIntyre the right to intervene are the subject of the appeal and the ACLU of Massachusetts friend of the court brief. The Court of Appeals granted a stay of the lower court’s order.

A related issue raised in the ACLU brief is whether the Mutual Legal Assistance Treaty between the US and the United Kingdom should be allowed to authorize a foreign power, armed with an unreviewable stamp of approval from the Executive Branch, to compel a US citizen to produce confidential information for prosecutions abroad.

“It is alarming that the trial court opinion suggests that the Constitution surrenders US citizens to foreign powers with fewer safeguards than are afforded to citizens subpoenaed by domestic law enforcement agencies,” said Carol Rose, executive director of the ACLU of Massachusetts. “If the government has its way, it would straightjacket judicial review of investigations and prosecutions by any foreign country party to this treaty, including Russia and China.”

The brief also takes issue with the government’s argument that the personal safety of the researchers is their own fault, since they publicized the issuance of the subpoenas.

“This is reminiscent of an argument that might have been made by Joseph K.’s accusers in Kafka’s The Trial,” states the ACLU brief. “A witness’s decision to fight the government’s behind-closed-doors decisions affecting the witness’s welfare is not grounds, in this country at least, to impeach the witness’s motives for applying to the court for relief.”

“If this ruling stands, it will have a chilling effect on academic research for years to come,” said Rose.

In addition to Albano, attorneys in the case are Robert McDonell, also of Bingham McCutchen, Peter Krupp of Lurie & Krupp, LLP, and ACLU of Massachusetts staff attorney Sarah Wunsch.

For a copy of the brief, click here or see above.

See also
ACLU plans to support BC Archivists in Brief
Boston Globe: ACLU Joins in Appeal