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.”