This op-ed is more question than opinion, though it focuses on two opinions, one belonging to the district attorney prosecuting the Boston College archives case, the other belonging to the primary compilers of the archive, Ed Moloney and Anthony McIntyre, and their attorney.
Moloney and McIntyre have been battling – thus far unsuccessfully – in the Massachusetts courts to be allowed entry to the case as interested parties.
To say they are literally interested in the case would be an understatement. But they have thus far been prevented from explaining the nature and complexity of that interest as the District Court handing the case has blocked their efforts to intervene as legal parties to the affray.
The matter was argued in a hearing before an appeals court panel on April 4.
Twelve days later, U.S. Attorney Carmen M. Ortiz, sent a letter to the appeals court taking issue with arguments during the appeals hearing made by the attorneys representing Moloney, who lives in New York, and McIntyre, who resides in Ireland.
This prompted a rapid reaction from New York-based attorney Eamonn Dornan who, in a responding letter, stated that “We could not find any provisions in the Federal Rules of Appellate Procedure or U.S. Court of Appeals for the First Circuit’s Rulebook which would permit the Department of Justice to make further submissions or communications once the Panel has risen following oral argument.”
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Legal rules and niceties aside, there is a serious matter at the heart of this exchange of letters and it concerns the physical safety of the appellants, most especially McIntyre, a former IRA member and Long Kesh prisoner who has given cause in recent years, by virtue of his writings and utterances, for some of his former comrades to be less than happy with him.
Moloney and McIntyre want to keep the secrets of the Boston College Troubles archive (dubbed the Belfast Project) within the framework that was offered to those individuals who gave testimonies – this being that their words would remain under academic lock and key so long as they were alive.
The Police Service of Northern Ireland, represented in the case by the U.S. Justice Department, is not so patient and wants to get hold of archival testimony given by the still living.
Moloney and McIntyre take the view that this poses life and limb dangers to the testifiers, and themselves.
U.S. Attorney Ortiz, in her letter, begged to differ.
She stated in part: “During appellants’ oral argument, counsel relied on a number of factual claims which are not in the record before this Court. One assertion is of particular concern. Counsel for the appellants argued to the Court that there is a ‘grave risk of physical harm to the appellants’ from the disclosure to the United Kingdom of Belfast Project recordings.
“The government disputed this assertion in the district court, citing, among other things, the fact that there is no record of any reports to police in the Republic of Ireland or Northern Ireland regarding credible threats to Mr. McIntyre or his family. At oral argument, counsel for the appellants asserted that the United States Department of State takes the threat of harm to Mr. McIntyre and his family ‘much more seriously’ than the Department of Justice and has ‘invited’ Anthony McIntyre’s wife in for a security assessment,’ creating the misimpression that the Department of State has taken a position contrary to the Justice Department’s view of the matter.
“Appellants’ claim of an agency disagreement is not supported by anything in the district court record. Moreover, the Department of Justice has been working closely with the Department of State and can assure this Court that the agencies’ views of the matter are compatible……the government has argued in its brief and at oral argument, appellants’ claim of potential harm from third parties, even if substantiated, would not entitle them to prevail in this appeal.”
Attorney Dornan, in turn, begged to differ with the U.S. Attorney.
In a letter to the appeals court dated three days later, Dornan wrote in part: “It is our respectful submission that the DOJ’s letter merely confirms that the District Court’s denial of the Appellants’ motion to intervene prevented them from providing evidence that is essential to assessing their claims that the Government’s position poses a grave risk of physical harm to the Appellants and their families.
‘The Appellants’ affidavits in support of their motion to intervene were not intended as a substitute for, or limitation of, the evidence they would have presented if granted the right to be heard. As just one example, the DOJ’s letter does not dispute that the Department of State made contact with Carrie Twomey, Mr. McIntyre’s wife regarding her family’s security.
“In fact, Ms. Twomey stated that Boston College had raised the threats against her family with the U.S. Department of State. The Appellants are ready, willing and able to provide evidence of those contacts, if the matter is remanded. The DOJ’s implicit suggestion that it would have been able to rebut any evidence that the Appellants would have elicited before the District Court proves only that the proceedings would have been categorically different if the Appellants had been permitted to intervene, and that Boston College did not adequately represent the Appellants’ interests.
“Regardless of the outcome of this litigation, the DOJ’s insistence on downgrading the threats facing the Appellants provides them with cold comfort. Although the DOJ was unable to identify, on the record, police reports regarding threats to Mr. McIntyre and his family, the IRA factions are unlikely to telegraph advance notice of their plans for retaliation.
“Moreover, as is evident from the final sentence of the DOJ’s letter, the Government takes the remarkable position that, even if harm to the Appellants and their families is assured, the Appellants nevertheless lack sufficient interest to be heard in opposition to the subpoenas. The Honorable Court – and clearly not the DOJ or Boston College – now represents the Appellants’ best hope to assure their safety.”
Attorney Dornan evidently takes the view that bad things can happen without advance notice in the form of “credible threats.”
A glance at Irish history would appear to give him more than a gambler’s chance of being right. In this matter, readers can be the jury. Letters to the editor, as always, are welcome.