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.
In my prior post, I expressed uncertainty about what BC materials were still in the court’s possession. After today’s hearing, it’s clear that the answer is: none, aside from any excerpts attached to papers filed with the court. According to Judge Young, after the appeal, the Court asked the parties what to do with the materials. The government expressed no opposition to returning them to BC, and so they were returned. So the fight was not about whether interview tapes or transcripts should be unsealed, but about how to treat the motions, legal memoranda, affidavits, and other documents the parties filed with the court.
BC said it has no opposition to making everything public, with the exception of any materials that directly or indirectly disclose the identity of living Belfast Project participants or the substance of their interviews. So the real discussion was between the Judge and Assistant US Attorney John T. McNeil.
The judge began by noting that one impounded document contained portions of the Belfast Project materials as attachments. As to that document, and as to names referenced in a conference that had been held at the sidebar, the judge indicated that he would not order a release. He reasoned that releasing those materials would be inconsistent with the First Circuit’s mandate. McNeil responded that the real reason for keeping those materials was not the mandate rule, but rather Article 7 of the MLAT, which provides that upon the UK’s request, the US is required to keep confidential “any information which might indicate that a request has been made or responded to.” Of course, the fact of the MLAT request is widely known. But the point is that because the UK investigation is still ongoing, the judge should not release any information that might refer to people who are now being investigated but who may never be charged, or alternatively, the judge should not release information that might alert suspects that they are likely to be charged. In any event, all were in agreement that those materials would not be released, maybe permanently.
The judge was inclined to release all papers the parties had filed that did not contain the substance of any of the interviews. This appears to include motions, memoranda of law, and the like. Interestingly, it seems to include papers relating to the recusals of Judge Tauro and Judge Stearns. I guess we are likely to find out just why they recused themselves. But at McNeil’s request, the judge gave the government one week to consult with Washington on these documents.
The judge indicated that he would not immediately release other material, including, apparently, an affidavit submitted by a UK law enforcement official and documents containing the government’s characterization of the UK investigation. But unless the government made a sufficient showing of an ongoing investigation, Judge Young indicated that all such material would be released in three months. United States court proceedings are presumptively open to the public, the judge said, and he means it. “It is a salutary rule that may be constitutionally grounded.”