AP, Fox News not isolated First Amendment controversies for DOJ

The AP and Fox News controversies are not isolated First Amendment incidents for President Obama's Department of Justice (DOJ).

There is an ongoing legal case that raises the same protection-of-sources-issues that have been debated in the media firestorm surrounding the DOJ's pursuit of AP and Fox News sources.

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The DOJ a couple of years ago subpoenaed interviews obtained by researchers hired by Boston College as part of its "Belfast Project."

The Belfast Project was designed to conduct and archive oral interviews with people who were directly affected by "The Troubles," a time period that spans from the late 1960s though the late 1990s in which violent conflict erupted between British-controlled Northern Ireland and the Republic of Ireland.

Those interviewed by Boston College-hired researchers Ed Moloney and Anthony McIntyre were promised that their remarks would not be released to the public until the interviewees had died, for fear that they would face prosecution charges. Moloney is an award-winning Irish journalist.

Senate Foreign Relations Committee Chairman Robert Menendez (D-N.J.) has said that releasing the interviews "could have the effect of re-opening fresh wounds..."

This position, however, did not sit well with some North Irish families that had relatives who were either kidnapped or killed. One well-known case is that of Helen McKendry, whose mother, Jean McConville, was kidnapped and murdered by members of the Provisional Irish Republican Army (IRA) in 1972.

The British government asked the United States for assistance with this matter under the Mutual Legal Assistance Treaty (MLAT), which allows for cooperation between two or more foreign governments during criminal investigations that have transnational implications. The Obama administration agreed, sparking outcry from First Amendment advocates.

Amid the recent AP and Fox News controversies, Obama administration officials have defended their handling of protecting national-security-secrets while also stressing their strong commitment to the First Amendment. But critics of the administration say the Boston College case undercuts those claims.

Sean Hughes, a spokesman for the Ancient Order of Hibernians in America, an Irish Catholic men's organization, said, "If DOJ is for the press and the First Amendment then why did they let the Boston College subpoena go through for two journalists doing research on the 'Troubles?'"

The first set of subpoenas were issued for interviews conducted with Dolours Price and Brendan Hughes. Price was an accomplice in McConville's kidnapping and murder while Hughes was a former Officer Commanding of the IRA's Belfast Brigade. Hughes was already dead at the time the subpoena was issued, but Price was still alive. Boston College officials did not want to initially turn over her interviews to the Police Services of Northern Ireland at Britain's request.

Instead, the interviews were given to U.S. District Judge William G. Young with the intent that they would be reviewed and that the judge would eventually quash the subpoena. Young, however, declared that the British were right in requesting the documents. This left Moloney and McIntyre to challenge the subpoena as individuals in front of the First Circuit Court of Appeals. The First Circuit, as well as the Supreme Court after that, denied Moloney and McIntyre's challenge to the subpoena.

A second set of subpoenas was issued by Young for additional interviews relating to McConville's death, for which Boston College did decide to issue a challenge. On Friday, the First Circuit released its final decision in which 11 out of 85 interviews must be turned over.

In April, Boston College Press Secretary Jack Dunn said, “We chose not to appeal the district court’s ruling on the first subpoena involving Delours Price’s interview because we felt there was no grounds for appeal. Our focus remains on our appeal of [Judge William Young’s] ruling regarding the second set of subpoenas, which remains before the First Circuit Court of Appeals."

Even though it has not received as much media attention as the DOJ controversy involving the wiretapping of journalists from the AP as well as the labeling of Fox News Chief Washington Correspondent James Rosen by Attorney General Eric Holder as a "co-conspirator," the Boston College case has still hit a nerve with First Amendment advocates.

Harvey Silverglate, a criminal defense and civil liberties litigator who has written extensively on the Boston College case, says that potential fines could have been one factor in the university's decision to not initially challenge the subpoena. "In theory, a judge can bankrupt the richest newspaper or broadcasting company in the country," notes Silverglate. "The nature of civil contempt is that it can impose unlimited escalating fines."

Holder has said recently that he never actually intended to prosecute Rosen, though he had to knowingly sign off on labeling him as a co-conspirator in order to obtain those conversations.

Peter Carr, a DOJ spokesman, defended the department's handling of the Boston College case: “The United States has been complying with our treaty obligations to assist this criminal investigation."

Judge Juan Torruella, with the First Circuit Court of Appeals, stated in the court’s decision that "the fact that disclosure of the materials sought by a subpoena in criminal proceedings would result in the breaking of a promise of confidentiality by reporters (or researchers) is not by itself a legally cognizable First Amendment or common law injury.” 

Although it's not certain Boston College would have been fined for refusing the British government's request, it would be of little surprise if officials did not want to take the risk. "You can't put a newspaper in jail," says Silverglate. "But you can bankrupt it."

While the attorney general may know what course of action he will take once he signs off on a warrant, those being wiretapped or labeled as co-conspirators will surely not. Silverglate blames Holder.

"Someone should explain to the attorney general that the press plays a role in national security; they can find things out that the government doesn't always know about and have in the past voluntarily postponed certain publications," argues Silverglate.

Others, however, don't blame Holder entirely.

Jonathan M. Albano, a partner at Bingham McCutchen LLP and a co-counsel for Moloney and McIntyre, thinks that the majority of the blame should lie at the feet of Congress and the courts. "This is the responsibility of the courts and Congress and they contributed to this problem," says Albano. "For Congress to say that it's shocked by these subpoenas is the height of hypocrisy."

Moloney and McIntyre released a statement in reaction to Friday's First Circuit's decision. While they were pleased with the reduction in documents that needed to be handed over, they nonetheless gave a stinging critique of the Obama administration.

"And in the context of the Obama White House’s current intolerable assault on journalistic and media rights in the United States, the cooperation of the U.S. Justice Department in this disgraceful exercise deserved more condemnation and opposition from American academe than it ever got," said Moloney and McIntyre. "Indeed the silence from that quarter during the last two years was almost deafening."

This story was updated on June 3 at 4:58 a.m. to correct a quote misattributed to DOJ spokesman Peter Carr.