First Circuit hears oral argument in Boston College subpoenas case

Chris Healy | Reporter's Privilege | News | April 5, 2012

Promises of confidentiality made to compile an oral history of "The Troubles" in Northern Ireland must be upheld by the court to protect the participants, even though the British government says the records contain information about the murder of a mother of ten, according to parties fighting subpoenas in oral arguments before a federal appellate court yesterday.

The U.S. Court of Appeals in Boston (1st Cir.) is considering the appeal over subpoenas issued by the Department of Justice to Boston College, which holds the records. The U.S. government was acting on behalf of the British government, which is seeking to prosecute those responsible for the murder.

Boston College's Belfast Project was an attempt to create an oral history of interviews with members of the Irish Republican Army and Loyalist paramilitary groups, according to the district court opinion in the case and a blog that was created in opposition to the subpoenas and to serve as a clearing house for related court documents. The project was proposed by Ed Maloney and some of the interviews were conducted by Anthony McIntyre.

"At the heart of this case is the failure of the district court properly to appreciate the risks at issue, namely the likelihood of harm to the appellants," Eamonn Dornan, attorney for the appellants, told the court in the opening moments of his argument. Dornan also argued that release of the interviews, secured under confidentiality agreements, could chill the valuable First Amendment values served by the project.

Promises of confidentiality were "what made possible" the Belfast Project, Dornan said.

The appellants in the case, Maloney and McIntyre, were highly involved in the project. While Boston College was the party named in the subpoena, Maloney and McIntyre had sought to intervene in the case to assert their own interests in quashing the subpoena. Their request was denied, and it is this decision as well as the district court's refusal to quash that are before the First Circuit.

Jim Cotter, who also represents Maloney and McIntyre, said that if the First Circuit affirms the district court, the consequences for foreign correspondents could be significant.

Boston College was subpoenaed by the Justice Department in 2011 and ordered to produce, among other things, interview materials concerning Dolours Price and "any and all interviews containing information about the abduction and death of Mrs. Jean McConville." The information was sought at the request of the British Government under the Mutual Legal Assistance Treaty, as evidence potentially probative in their investigation of McConville's death.

McConville, a mother of ten living in Belfast, was allegedly murdered in 1972 for being a suspected informant. The British government claimed that the interview materials with Price may contain information relevant to their investigation, according to the Boston Globe.

The project ran from 2001-2006, and interviewees were promised that their statements would remain confidential until their death, in order to protect them from retribution, according to the opinion. Retaliation against interviewees was thought to be of a particularly high risk because the Irish Republic Army has been known to enforce a strict "code of silence."

Despite the fact that the existence of the Belfast Project -- and even some of its participants -- have been known for some time, disclosing specific statements still presents a risk of retribution, Cotter said. "Knowing that someone talked is different than knowing the details of what they said."

At the argument, Dornan argued that release of the information contained in the interviews could subject McIntyre and Maloney to retribution because it could potentially lead to the prosecution of former militants. He also suggested that release of the information could upset peace between the IRA and the British government brokered under the Good Friday Agreement.

The district court applied a balancing test, comparing the government's need for the information against Boston College's interest in confidentiality, and ordered the college to produce the documents to the court for in camera review, meaning that the court would review the interviews privately. Maloney and McIntyre sought and received a stay from the Court of Appeals pending that court's review.