Update: One other point I want to make. I think the tapes will be released to the British authorities, but will they be made public? I think it is necessary to M&M’s case on the other tapes that the Price tapes must be made public. The policy justification for the oral history privilege they’ve asserted is that confidentiality before death leads to public benefit from the information after death. If they don’t make the Price tapes public, or say that they will make them available to scholars, or whatever, then it’s harder to take seriously their claims about the need for confidentiality on the other tapes.

A few thoughts on the effect of Dolours Price’s death on the Belfast Project case.

1. Moloney & McIntyre’s petition to the Supreme Court now seems to be moot with respect to the Price interview materials. M&M promised Ms. Price confidentiality until her death. There would seem to be no basis now to insist on continued confidentiality. By way of comparison, as I noted in a prior post, Boston College produced the Brendan Hughes interviews upon receipt of the subpoena without putting up a fight, because he had already died and the interviews were no longer confidential, and Ed Moloney’s book, Voices From the Grave, is based on Hughes’s interviews.
2. All that being said, Justice Breyer’s stay remains in effect until it expires or the Justice or the full Court acts to modify or dissolve it. One possibility is that the government will bring Ms. Price’s death to the Justice’s attention and seek to have the stay modified. We will have to wait and see.
3. As we have seen, Ms. Price and Mr. Moloney have given dramatically different accounts of what Ms. Price said in her interviews. It is possible that M&M themselves will now release the interviews, or that they will otherwise come to light, and we will be able to judge who was wrong and who was right.
4. It seems to me that M&M’s case (and Boston College’s case) was always weakest with respect to the Price materials. They seem to have a better case with respect to the second subpoena, because it seems less clear that the materials produced in response to the second subpoena relate to the murder of Jean McConville, which is what we understand the PSNI is investigating. (As noted in the previous point, according to Moloney, even the Price interviews do not relate to the McConville murder, though Price’s public statements contradict his).
5. I also want to note an interesting possibility: Senator John Kerry, who is about to become the Secretary of State, had previously asked the outgoing Secretary, Hillary Clinton, to “work with the British authorities to reconsider the path they have chosen and revoke their request.” It’s possible that as Secretary of State he will do just that. I have long said that M&M’s political arguments are stronger than their legal arguments, so perhaps the changes in the President’s cabinet will lead to a result that I think they are unlikely to get in the courts.