The High Court in Northern Ireland has denied Anthony McIntyre’s motion for an injunction regarding the use of his Belfast Project interview. The Belfast Project case was the first case to which I devoted extended attention at Letters Blogatory. It’s been a while, so let me set the scene a bit.
The First Case
Ed Moloney was the director of the Belfast Project, an oral history project at Boston College that aimed to collect oral histories from participants in “the Troubles,” the conflict between Catholics and Protestants, loyalists and republicans, in Northern Ireland in the second half of the twentieth century. One of his researchers was Anthony McIntyre, himself a former member of the IRA who served time for murder in a British prison. Boston College had an agreement with Moloney that required each person interviewed to be given a contract “guaranteeing to the extent American law allows the conditions of the interview and the conditions of its deposit at the Burns Library, including terms of an embargo period if it becomes necessary.” The donation agreements between the interviewees and BC, however, did not contain the reference to the limitations of American law:
Access to the tapes and transcripts shall be restricted until after my death except in those cases where I have provided prior written approval for their use following consultation with the Burns Librarian, Boston College. Due to the sensitivity of content, the ultimate power of release shall rest with me. After my death the Burns Librarian of Boston College may exercise such power exclusively.
McIntyre interviewed more than two dozen participants on the Republican side of the troubles. Among the interviewees were Dolours Price and Brendan Hughes. Price, a former IRA member, participated in a car bombing in the 1970s and served several years of a twenty-year prison sentence before being pardoned. Price gave an interview in 2010 in which she admitted involvement in the infamous kidnapping and murder of Jean McConville in 1972 and in which she noted that she had been interviewed by researchers in Boston. Hughes, a former IRA commander, died in 2008, and his interviews formed part of the basis of Moloney’s 2010 book, Voices From The Grave.
The Price and Hughes interviews aroused some interest within the Police Service of Northern Ireland. There is some speculation that in her interview, Price implicated Gerry Adams, a leader of Sinn Féin during the Troubles (and today) and according to some—including Moloney—a leader of the IRA at the time (Adams has denied that he was ever a member of the IRA).
In any event, the Home Secretary, who is the UK central authority designated to act under the US/UK mutual legal assistance treaty, submitted a request to the Attorney General (the US central authority) for judicial assistance. After receiving the request, the Attorney General, acting under 18 U.S.C. § 3512, applied, ex parte, for an order authorizing the issuance of subpoenas to Boston College for the interviews. In the end, the court issued two subpoenas. The first subpoena called for the Price and Hughes interviews. The second, broader subpoena called for all interviews containing information about the “abduction and death of Mrs. Jean McConville.”
Boston College produced the Hughes interviews to the government (Hughes had already died, and so on any view of the case Boston College no longer had an obligation of confidentiality to him) but otherwise moved to quash the subpoenas. The College’s basic argument was that it had a First Amendment privilege and could not be compelled to produce the interviews. Although it seemed initially that Moloney & McIntyre were cooperating with the College, at some point they became dissatisfied with the College’s vigor in opposing the subpoenas and they sought leave to intervene. In addition to the First Amendment claim, M&M made another constitutional claim, alleging a denial of their right to life under the Due Process Clause on account of the danger they would be in if the documents were produced. They also argued that the government had failed to comply with the MLAT in a few respects. First, they argued that the crimes the UK authorities were purporting to investigate were political crimes. Second, they argued that the Attorney General had not properly conferred with his UK counterparts, as they claimed the treaty required. Last, they argued that the judge had discretion to refuse to issue the subpoenas even if they were proper under the MLAT. They sought leave to intervene both as of right and under the rule regarding “permissive intervention.”
Judge William Young denied Boston College’s motion to quash and ordered it to turn over the Dolours Price materials. At the College’s suggestion, he called for an in camera inspection of the other interviews, and the College provided the interviews to the judge. The judge also denied M&M’s motion for leave to intervene. After reviewing the materials in camera, Judge Young ordered the production of other interviews that had some relationship to the McConville case. Boston College and M&M appealed. Boston College appealed only from the judge’s actions on the second subpoena; M&M appealed from the decision as to both subpoenas. Since M&M’s motion for leave to intervene had been denied, they commenced a new action against the government, asserting the same claims, more or less, that they had sought leave to assert in the original case. The government moved to dismiss, and after a hearing, the judge granted the motion. M&M again appealed, and its appeal was consolidated with its prior appeal from the denial of the motion for leave to intervene.
Ultimately the First Circuit reached the obvious conclusions: M&M had no private right to enforce the terms of the MLAT, even if there had been a violation of the MLAT’s terms; and there is no oral historian’s privilege or academic research privilege under the First Amendment that can defeat a criminal investigation (e.g., a grand jury subpoena or, as here, a subpoena issued pursuant to an MLAT). McIntyre brought proceedings in Northern Ireland to try to stop the PSNI from making use of the tapes, but those proceedings were unsuccessful. Ultimately Ivor Bell was charged with McConville’s murder, though he has not yet been tried, apparently due to his counsel’s claims that he is unfit to stand trial.
In 2014, McIntyre gave an interview to the BBC in which he disclosed that he was not just an interviewer, but that he himself had given an interview to the Belfast Project, and that he had exposed himself to “exactly the same risks as anyone else was exposed to.” Now, you have to wonder why McIntyre thought this was a good idea. Maybe it was an intentionally brave thing to do—an “I’m Spartacus” sort of thing. Or maybe, despite everything he had been through, it didn’t occur to him that his words might be used against him. In any case, the PSNI sent a request to the US authorities, who served another subpoena seeking McIntyre’s interview in connection with their investigation of the and 1976 bombing in Belfast and two less serious crimes. There were errors in the letter of request, some immaterial, and some corrected. In any event, the US court issued the subpoena, the interview was produced, and McIntyre then sought an injunction to prevent the Northern Irish authorities from making use of it.
McIntyre’s main arguments focused on the 1976 bombing. He said there was no real chance of prosecution and that the government’s motives were disingenous. With respect to the bombing in particular, he claimed to have evidence showing he was innocent, though the government provided affidavits putting him at the scene of the crime. He also claimed that the government had breached a duty of good faith on account of the errors in the letter of request (an incorrect statutory reference, an incorrect assertion of a past conviction for armed robbery). Although the court agreed that there was a duty of good faith, it found that the government had been merely careless, and that it had not acted in bad faith. Nor did the court accept that the Northern Irish authorities had an obligation to provide exculpatory evidence to the United States for use in making its decision on the MLAT application. Thus the court denied the application.
The decision seems sensible, though the decision rested on issues of UK law on which I don’t have much to say. In general, people don’t have a right to forbid the government from investigating them for the commission of crimes, and the MLAT is simply an inter-governmental agreement to facilitate investigations. One could imagine a case of abuse of the MLAT, but this case doesn’t seem close to the line. There may be good political or moral reasons not to pursue McIntyre for crimes supposedly committed during the Troubles, after he served many years in prison and after he more or less started over as a writer and a scholar. But that’s neither here nor there.
The court stayed its decision to allow a further appeal, so we may not have heard the last of the case from McIntyre. I will keep you posted.