Yesterday, Judge Young heard arguments on NBC’s request to unseal the Belfast Project materials. Curiously, NBC did not appear at the hearing. It may be that it did not receive notice of the hearing. This is not surprising, since rather than entering an appearance through counsel and making a motion to lift the order of impoundment. “I don’t respond to letters,” Judge Young said. (Richard O’Rawe’s lawyers in Northern Ireland also submitted a letter—a very odd letter—that the judge also ignored and that I will ignore, too). All the same, the Judge thought he had an independent obligation to determine whether to maintain the impoundment now that the case is over. Hence yesterday’s hearing.
I’m saving up the remainder of my Hague coverage until Monday. Check back then!
NBC News has submitted a request to Judge Young to unseal the tapes and transcripts that BC had submitted to him for inspection in camera. This has, as you MIT imagine, caused some unhappiness on team McIntyre/Moloney. There is an initial question: does the District Court still have the tapes? It’s not entirely clear. In December 2011, BC delivered copies of the in camera materials to the clerk, and a few days later, the US Attorney’s Office received them. It’s not clear from the document whether the government took the court’s only copy or left the court with a set of the materials. The government’s receipt of the materials happened a few days after Judge Young’s decision, which suggests the court might not have kept the materials. On the other hand, during BC’s appeal, the First Circuit called for the sealed materials, and Judge Young reported that he had done so, and that the government had never seen the materials. Those materials were, I assume, were returned to the District Court sometime after disposition of the appeal, as the Rules of Appellate Procedure require. The whole matter is unclear, but the best guess I can make is that the government was given the only copy of the materials that were ultimately produced to the PSNI, but that all of the documents that were at issue in the BC appeal are still in the court’s possession.
If that’s true, then I think there’s some chance the materials will be unsealed. NBC’s letter is basically right. There is a presumptive public right to access to court records. And I think Judge Young, of all the judges on our bench, may be the most receptive to a First Amendment argument. That being said, this is an unusual case; it involves interviews that were meant to be kept confidential and that Judge Young already has determined were part of a legitimate academic inquiry. Moreover, we haven’t seen any real briefs filed, though I’m sure we will. So I think it’s not possible to make a prediction now about what will happen.
But whether or not NBC is successful, the PNSI is also after the remaining documents. It’s unclear whether the PSNI is after the documents in the hands of BC or in the hands of the court. But I don’t think the PSNI has a good shot at this. The MLAT does not permit fishing expeditions. Under the MLAT judicial assistance is appropriate in respect of proceedings, which I take to mean that there must be a particular proceeding or at least a particular investigation. Perhaps the PSNI will say something more specific, but given what it’s said now, I don’t think it likely that an MLAT request would be granted. But we will see.
With apologies to readers who are interested in things other than the Belfast Project, and with a hat-tip to Chris Bray for the pointer, here is a second update in as many days. The Belfast Telegraph is reporting that the PSNI is seeking to question Anthony McIntyre, one of the lead Belfast Project researchers, in order to establish the authenticity of the Belfast Project tapes and to identify the voices heard on the tapes.
It also appears that whether the PSNI wants to interview Gerry Adams about his role, if any, in the McConville murder, Adams is making himself available to be interviewed by the police.
Because McIntyre lives in Ireland, my prediction is that we will now see litigation about the meaning of the UK/Ireland mutual legal assistance treaty as well as about the existence of an oral historian’s privilege under Irish law. Good stuff!
It is interesting, by the way, to compare the grounds for refusing an application under the UK/Ireland MLAT and the UK/US MLAT. In particular, the UK/US treaty permits the requested state to refuse an application if “the request relates to an offence that is regarded by the Requested Party as an offence of a political character.” (Art. 3(1)(c)(i)). The UK/Ireland treaty lacks a political offense exception. It does, however, have an exception where”the action sought is contrary to fundamental principles of the law of the Requested Party.” (Art. 6(1)(c)), which may be similar to the public policy exception in the UK/US treaty. And, like the UK/US treaty, he UK/Irish treaty has an exception for requests that impair the requested state’s sovereignty or security or other essential interest. The UK/Ireland treaty lacks the lengthy consultation language in the UK/US treaty that McIntyre and Ed Moloney cited, or rather mis-cited, in their lawsuit here in Boston. The Irish treaty also lacks a provision like Article 1(3) in the UK/US treaty, which provides that the treaty is solely for mutual legal assistance and does not create any private rights of action to try to impede requests, suppress or exclude evidence, etc.
In other words, the arguments about whether the MLAT should apply may differ slightly.
If you are a lawyer in Ireland or Northern Ireland and would like to be my eyes and ears for the impending proceedings, please let me know!