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British subpoenas blocked

Supreme Court Justice Stephen G. Breyer on Wednesday temporarily blocked subpoenas issued by the British government for papers collected in an academic project at Boston College about the history of the Irish Republican Army’s violent resistance to British rule in Northern Ireland.  The subpoenas are part of a United Kingdom criminal probe into the death of a former IRA member who allegedly had served as an informer for the British government.  Breyer’s order will remain in effect if the two researchers challenging the subpoenas file a formal appeal of the denial of their plea by the First Circuit Court in July.

The subpoenas had been challenged by Boston College, but it has given up at least part of its objection and has turned over some files.  Attempting to continue the challenge are a former member of the IRA, Anthony McIntyre, who served as the lead researcher on the oral history project (the “Belfast Project”), and a New York journalist and writer, Ed Moloney, who directed the Belfast Project.   That academic inquiry is an attempt to reconstruct the IRA rebellion from the perspective of former “foot soldiers” in that conflict, which ended in 1998 with the so-called “Good Friday Agreement.”

In gathering stories from those who had taken part in the rebellion, on either the IRA side or the Unionist side, the Belfast Project had promised confidentiality to interviewees in order to encourage them to speak candidly.   For the UK police probe, files were demanded by two former IRA members, Brendan Hughes and Dolours Price.  Boston College turned over the Hughes papers because he had died; confidentiality had been promised only during his lifetime.  The College resisted the demand for the Price files.  That is the effort now taken up by McIntyre and Moloney.

The British police are investigating the 1972 abduction and death of IRA member Jean McConville.  The probe apparently is proceeding on the theory that the IRA followed a routine practice of retaliating violently against any of their members who cooperated with authorities or revealed IRA activities.  Mrs. McConville’s death, in an execution-style killing with a single gunshot to the back of her head, has never been solved.   Among those who allegedly abducted her were Dolours Price, who has since said that she acted on orders from IRA leaders   The IRA claimed that Mrs. McConville was an informer to British authorities, but a British probe rejected that claim.  Her body was not recovered until 2003.

McIntyre and Moloney originally tried unsuccessfully to join in the Boston College court challenge to subpoenas for the Price records.  After the College declined to appeal one document turnover order, the two men associated with the Belfast Project began their own lawsuit.  Their claims were turned aside both by a federal district judge, and by the First Circuit Court.  The British demand for the project records, being defended in court by the U.S. Justice Department, is pursued under a criminal law enforcement treaty with the U.S.   Two subpoenas are at issue: one issued in May 2011, one in August 2011.

The First Circuit’s decision in July rejected the two researchers’ objection, finding that they had no First Amendment right to resist a subpoena for records needed in a criminal investigation.   Justice Breyer put that decision on hold temporarily on October 1, until the Justice Department could respond.  He then issued a stay on Wednesday.  It specified that the two researchers must file their petition for review by November 16, or else the stay will expire.  If they do file their petition, the stay will remain in effect until the Court completes action on the case.  The Breyer order contained no explanation for the stay.

In their application for a stay, McIntyre and Moloney said their coming appeal will ask the Court to resolve a split among appeals courts on whether there is a First Amendment right for academic researchers to object to a subpoena for their files, and whether individuals may challenge a subpoena issued under a legal assistance treaty,


Recommended Citation: Lyle Denniston, British subpoenas blocked, SCOTUSblog (Oct. 17, 2012, 1:26 PM),