Slugger O'Toole

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Boston College: “No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice.”

Sat 7 July 2012, 2:14pm

The Boston Globe reports on the Court of Appeals for the First Circuit ruling in the PSNI/HET’s attempt to access some of the material in the Boston College Belfast Project archive.  The project director, Ed Moloney, and researcher Anthony McIntyre had been trying to head the US Government off at the pass.  And they’ve already opened another legal front…  From the Boston Globe report

A federal appeals court has upheld a lower court’s ruling ordering Boston College to turn over confidential materials from its Belfast Oral History Project on Northern Ireland, dealing a blow to researchers’ efforts to honor their agreement of secrecy with former IRA members.

The decision by the US Court of Appeals for the First Circuit was released Friday and reinforces subpoenas from the British government that would force BC to release specific papers and inter­views conducted by ­researchers. Two of the academic researchers in the appeal were project director Ed ­Moloney and former Irish ­Republican Army member ­Anthony McIntyre.

BC and the researchers can now seek a rehearing by the court or take the case to the US Supreme Court. A spokesman for BC could not be reached for comment Friday night.

As ever, Boston-based lawyer Ted Folkman has the ruling and promises a full analysis early next week.  Here’s his summary

  • As I predicted, the court rejected Moloney & McIntyre’s arguments under the MLAT, because the treaty gives them no private right of action and because the Attorney General’s actions under the MLAT are not within the courts’ jursidiction.
  • The court rejected Moloney & McIntyre’s claim under the Administrative Procedures Act on the grounds that the MLAT expressly precludes judicial review.
  • The court assumed for the sake of argument that the District Court had discretion to quash the subpoenas but held that it had not abused its discretion, noting that the judge had carefully performed a balancing analysis. This leaves open the question whether, as I have suggested, the district court lacks discretion to quash a subpoena issued under the MLAT.
  • The court rejected Moloney & McIntyre’s constitutional claims. In a small victory for M&M, the court held that they had standing to raise their constitutional arguments. 1 But as I suggested, the court held that on the merits, the Branzburg case controlled.
  • The court quoted Wigmore in support of the basic outcome: “the mere fact that a communication was made in expres confidence … does not create a privilege. … No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice.”

Update  Ted Folkman’s analysis of the ruling is online here.  As he notes

Is this the end of the road for Moloney and McIntyre? Not by a long shot! If there is one argument I do not think they will be able to make when this is all over, it’s that they didn’t get due process from the US courts.

And his subsequent comment is worth quoting too

Ed Moloney has a “glass half full” commentary on the decision at The Broken Elbow. He argues that now that the court has affirmed the decisions approving the subpoenas, the Attorney General and the Secretary of State are free to refuse to continue to provide judicial assistance to the British. Of course, they have been free to refuse to assist the British all along, though perhaps at the cost of causing the United States to violate its obligations under the treaty. But that’s the argument, anyway. He also points out that Judge Toruella, in his concurring opinion, noted that the Troubles were a political conflict, though even Judge Toruella didn’t think that mattered to the outcome of the case.

Moloney and McIntyre have also confirmed my prediction about their next move by stating that they are considering a petition for an en banc hearing.

Chris Bray also has a post up about the new decision.

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Comments (40)

  1. dwatch (profile) says:

    Unionists will be pleased now that: “Police ‘can have IRA interview” http://www.belfasttelegraph.co.uk/news/world-news/police-can-have-ira-interview-16182244.html

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  2. And those pathetic and cynical power elite mind games must mean that the establishment is worried about novel progress being made by alternate power players over which that have no effective control?

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  3. dwatch (profile) says:

    US tapes ‘may implicate IRA chiefs’

    Saturday, 7 July 2012

    MP Gregory Campbell said senior IRA members could be implicated after a court agreed to hand over secret interviews with a convicted bomber

    A DUP MP has said many senior IRA members could be implicated after a court agreed to hand over top secret interviews with a convicted Old Bailey car bomber to the authorities.

    Boston College must give police the recordings by its researchers of oral history project talks with Dolours Price by next month, after an appeals court in the US rejected an effort to stop their release.

    Read more: http://www.belfasttelegraph.co.uk/news/local-national/northern-ireland/us-tapes-may-implicate-ira-chiefs-16182370.html#ixzz1zxzmxnca

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  4. lamhdearg2 (profile) black spot black spot says:

    Much ado about nothing.
    There is little reason other than for pressure purpose’s (blackmail) in having more proof of what ira leaders did, the psni and its advisers, are more interested in jailing a squaddie.

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  5. Mister_Joe (profile) says:

    Neither oral nor written history will make it into evidence. The main value will be in providing investigative clues.

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  6. lamhdearg2 (profile) black spot black spot says:

    joe, do you think there is much Price will have said that the security services do not already know?.

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  7. Mister_Joe (profile) says:

    No lamhderg, in fact I was going to say that. There may be difficulty in getting evidence that would stand in court but we all know that there is no political will and, perhaps, even political direction to the DPP.

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  8. ranger1640 (profile) says:

    A total irrelevance. The teflon provos will still be strutting their stuff in Stormont, Parliament and the Dail, as Baggott doesn’t have the cahonas to act on anything contained in the BC tapes.

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  9. Obelisk (profile) says:

    “US tapes ‘may implicate IRA chiefs’

    Saturday, 7 July 2012

    MP Gregory Campbell said senior IRA members could be implicated after a court agreed to hand over secret interviews with a convicted bomber

    A DUP MP has said many senior IRA members could be implicated after a court agreed to hand over top secret interviews with a convicted Old Bailey car bomber to the authorities”

    But it won’t will it. All that has effectively been accomplished is that a source of information and truth that could have been recorded for posterity, a scheme that might have been expanded to include many more former paramilitaries and get their accounts, is now dead in the water.

    One of the few viable paths for dealing with our past closed off just like that.

    Maybe this will help the McConville family find the truth they need so desperately. I hope it does, and that is some comfort.

    But it is a dearly purchased comfort,at a cost to other victims that now nobody will want to talk about any other event.

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  10. Mister_Joe (profile) says:

    Obelisk,

    I think that the McConville family are well aware of the truth.
    Amazing what someone whose hands are clean, never having been a member of a murder gang, can achieve.

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  11. dwatch (profile) says:

    “A US appeal court has ruled that interviews given by former IRA bomber Dolores Price can be handed over to the Police Service of Northern Ireland.”

    http://www.bbc.co.uk/news/uk-northern-ireland-18756011

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  12. Alias (profile) says:

    The cost of M&M’s legal shenanigans must have risen beyond their means a long time ago so either they have found lawyers willing to work for free to defend a non-existent legal principle of academic privilege or somebody is financing them for some unknown purpose.

    And speaking of unknown purposes, it’s hard to get behind a principle that never actually existed. That’s why they’re on a solo run here, with no other academic or academy supporting their legal challenges.

    They’re opening up lines of defence/attack all over the field, with the four primary ones being (a) a claim of academic privilege; (b) a claim that their lives will be in jeopardy if the tapes are handed over; (c) a claim that the peace process will be in jeopardy if the tapes are handed over, and (d) a claim that the demand to hand over the tapes is spurious.

    Nobody really knows what they’re at other than they obviously don’t want to hand the tapes over – which is fair enough but not something that others should be expected to support sans a definitive reason why they should not be handed over.

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  13. lamhdearg2 (profile) black spot black spot says:

    Alias, how about this conspiracy theory, the Brits are pushing for the tapes, not to get the tapes, but to discourge others from talking.

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  14. Alias (profile) says:

    That is my own view for the reasons given in the two posts below from last year:

    The intelligence agencies could have gained covert access to these tapes/transcripts and thereby have of all the information that they feel might be of use to them in their enquiries.

    What is the practical difference between gaining covert and overt access? None whatsoever. These tapes/transcripts are not ‘confessions’ that could be acceptable to a court as evidence of any sort – and all states have very strict laws about confessions.

    The political difference, however, is that the state’s policy of concealment of information pertaining to the conflict is reinforced, with all participants now fully aware that they should not disclose information to the public outside of official state mechanisms for disclosure – none of which exist.

    It would have been a better option for the researchers not to have named the interviewees, thereby depriving the state of the legal pretext to request the information. The researchers could have kept the names seperate from the files, only releasing the name along with the file when the actual condition of the contract was met (i.e. when the named person was deceased).

    And…

    …it’s all classed as hearsay under both US and UK law. Contrary to popular myth, hearsay is any statement made outside of the court. In other words, it is not limited to third party testimony. It would only be admissible if the purpose was to prove that a particular statement was made by the accused, but would not be admissable if the purpose was to prove that the accused actually carried out the act of which she is accused, i.e. if Ms Price claimed she drove Ms McConville to meet her murderers then it would be admissable to prove that she made that statement but not to prove anything else. If she is accused of that act then the statement is not admissible. She can, of course, simply deny that she made any such statement to the researchers. The value of the Boston College project to the police is that it may provide ‘tips’ to lead their investigation but it has no value as evidence. As previously pointed out, that value could have been extracted by covert means – and probably was long ago.

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  15. The political difference, however, is that the state’s policy of concealment of information pertaining to the conflict is reinforced, with all participants now fully aware that they should not disclose information to the public outside of official state mechanisms for disclosure – none of which exist. …… Alias posted 8 July 2012 at 3:14 am quoting from a post from last year.

    Good Morning, Alias and Slugger O’Toole tools,

    The following reply* to dwatch appears to have got lost in cyberspace, given that it preceded and gave cause for the displayed alien comment …….. “And those pathetic and cynical power elite mind games must mean that the establishment is worried about novel progress being made by alternate power players over which that have no effective control? …. 7 July 2012 at 6:49 pm …….. but it would not disagree with the sorry disarrayed state of affairs in states stupid enough to think that information can nowadays be concealed and remain so, whenever intelligent and intelligence leakage is such a powerful control leverage and so valuable a facility with abilities that are worth so much, to both deploy and agree not to deploy until a later time, or maybe not at all, for all the best of very good reasons.

    And it does appear to highlight and draw attention to an embarrassing conflict of interest in delving into historical events which uncover leading voices who may have been hearing and heeding other voices which would prefer to remain perfectly anonymous and universally unknown.

    Do you know how the intelligence news cycle works ITs MkUltraSensitive Media Magic ….. and virtually literally creates billions and billionaires from practically nothing? Have you not hacked and cracked and/or not been granted access to ITs Dynamic Networking Authority CodeXSSXXXX yet?

    * I shall refrain from reposting here that reply, as I notice that it is not lost at all, just held back for a subjective judgement as to the suitability of its objective contents being wwwidely known ….. Your comment is awaiting moderation. ….. but it is always available for any with an interest and all to see and ponder on what would be causing delay, on alien home territory/web pages.

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  16. lamhdearg2 (profile) black spot black spot says:

    Its a pity menfrommars do not communicate in English. as thay may have something interesting to say.

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  17. 241934 john brennan (profile) says:

    As Shakespeare said: ‘murder will out.’ A lot of people already seem to know who was involved in Jean McConville’s murder. A little more corroboration is always a step towards conviction.

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  18. What one finds in the base political layers of cyberspace, lamhdearg2, is that whenever one says something interesting and revealing, are the comments queued in a stack for moderation/security vetting/ignoring or further source monitoring and/or mentoring if systems are geared for corruption and/or subversion and/or sub-prime self-protection, but such an action, which is always just a reaction, immediately alerts commentators to live vulnerabilities for further zeroday exploitation/systems penetrations testing.

    However, such a reaction in no way stops any progress but rather more surprisingly, gives added impetus to the directions being followed and which would have led to the views being expressed, being stacked in a queue for deeper analysis, or simple rejection confirming all of the above.

    In ITs higher echelons though, and you will surely concede that IT Command and Cloud Control of Computers and Communications with CyberSpace is a Novel Live Operational Virtual Environment which may not be at all widely known, is information always welcomed for Advanced IntelAIgent Processes which are ReProgramming and Edutaining Human Assets in the SMARTR Ways and Memes of Virtual Machine Control ….. to deliver Absolute Power to Transparent Levers, rather than may be the present media pimped abominations which have myriad secret societies squabbling for turf and bragging rights in jurisdictions where they are not welcome.

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  19. lamhdearg2 (profile) black spot black spot says:

    too many acid.

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  20. I imagine then, lamhdearg2, that this little informative gem ……… Disclosures Anonymous …. will be also be wasted on you.

    And it would have been much nicer if you had said …. too many acid.:-) although those who would be pedantic might prefer …. too much acid. :-)

    However, you are and would be wrong in all of those suppositions/propositions but I can fully understand why you would be thinking it.

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  21. I imagine then, lamhdearg2, that this little informative gem ……… Disclosures Anonymous …. will be also be wasted on you.

    And it would have been much nicer if you had said …. too many acid.:-) although those who would be pedantic might prefer …. too much acid. :-)

    However, you are and would be wrong in all of those suppositions/propositions but I can fully understand why you would be thinking it.

    Ooops, sorry …. a bit of a cock-up on the html front there ….. hence the repost.

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  22. wild turkey (profile) says:

    with regards to the abduction, murder and subsequent ‘burial’ of Jean McConville, a few dumb questions.

    1. does the family deserve justice of Ms McConville deserve justice?
    2. have they received justice?
    3.has the family, to date, received the truth the full truth?

    and yeah, justice has both a legalistic and moral perspective. but, FFS, surely the moral imperative is primary.

    and finally, amfm. your work is done on this planet. please go home now.

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  23. Pete Baker (profile) says:

    Update Ted Folkman’s analysis of the ruling is online here. As he notes

    Is this the end of the road for Moloney and McIntyre? Not by a long shot! If there is one argument I do not think they will be able to make when this is all over, it’s that they didn’t get due process from the US courts.

    And his subsequent comment is worth quoting too

    Ed Moloney has a “glass half full” commentary on the decision at The Broken Elbow. He argues that now that the court has affirmed the decisions approving the subpoenas, the Attorney General and the Secretary of State are free to refuse to continue to provide judicial assistance to the British. Of course, they have been free to refuse to assist the British all along, though perhaps at the cost of causing the United States to violate its obligations under the treaty. But that’s the argument, anyway. He also points out that Judge Toruella, in his concurring opinion, noted that the Troubles were a political conflict, though even Judge Toruella didn’t think that mattered to the outcome of the case.

    Moloney and McIntyre have also confirmed my prediction about their next move by stating that they are considering a petition for an en banc hearing.

    Chris Bray also has a post up about the new decision.

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  24. Alias (profile) says:

    “No matter that it was not the verdict we wanted to read, nonetheless the Obama White House can no longer say that their hands are tied because the matter is still being considered by the courts.” – Ed Moloney

    They could have said that before he brought the court action…

    And this claim is just off the wall:

    “The seoond point is that the judge has now given perfect cover to Hillary Clinton and Eric Holder to dump these subpoenas.” – Ed Moloney

    Moloney is claiming that an act may be deemed to be political in nature that it can’t be a crime. In other words, that violent individuals have the right to disregard law and to do so without sanction. Does he really think that the US Secretary of State will agree with this nonsense? She would be saying that the likes of Anders Behring Breivik and Osama bin Laden were not criminals or that RIRA can do as they please.

    “That the academic investigations carried out by Appellants in this case, and the evidence sought by the United Kingdom involve “offenses of a political nature” irrespective of how heinous we may consider them, is borne out by the terms of the Belfast Agreement (also known as the “Good Friday Agreement”) entered into by the Government of the United Kingdom and the Irish Republican Army, whereby almost all prisoners were released by the British government, including many who had been convicted of murder.” – Judge Torruella

    Yup, but they were all released under criminal licence with their criminal convictions in place, not pardoned, so political offence does not exclude criminal offence and nor does the former cancel the latter.

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  25. and finally, amfm. your work is done on this planet. please go home now.“…. wild turkey 8 July 2012 at 8:04 pm

    It is quite clearly the case, wild turkey, that you do not realise you are playing in MI Spaces here, and which are also there and everywhere. And such is the home realm in which absolute rule and benevolent reign exercise ITs Special IntelAIgents Services with CHAOS Command and Control of Future Enigmatic Energy Drivers.

    You surely know of Cloud, for it is no great unknown secret and is widely chronicled and pimped with IT in both specialist interest and mainstream media channels, although exactly what it and IT and Media channels and tunnels can and are doing with Clouds Hosting Advanced Operating Systems FEED is MkUltraSensitive Knowledge with Access Restricted on a Proven Deserve to Know Basis ……. with SMARTR Protocols

    And there/here you all are, probably without a baldy notion about what is being done for you with what the future holds in servers for you, although some might also say, and it would not be wrong, although not necessarily right, that in a system in which you have no control or power, are you clueless as to what is being done to you for others, who may or may not have your best interests in mind/at heart.

    It is then as well to hope and pray that ITs Special IntelAIgents Services are on your side, methinks, for in any imaginable Colossal Holywood v Titanic Hollywood Squirmish are Vain Victors Vanquished in Valiant AIVenues.

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  26. dwatch (profile) says:

    “with regards to the abduction, murder and subsequent ‘burial’ of Jean McConville, a few dumb questions.”

    If the release of the Boston papers or former IRA informers (like the “Disciple”) help police find more unfound bodies murdered by the IRA then its good news.

    “The IRA victim was buried face down, so he could only dig himself in deeper…”

    Read more: http://www.dailymail.co.uk/news/article-1265553/Former-Belfast-CID-chief-tells-solved-mystery-kidnapped-tycoon-Thomas-Neidermayer.html#ixzz2068xGCHi

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  27. Alias (profile) says:

    “Once we had his trust, Disciple began to unburden all his intimate knowledge of the Provisional IRA. His memory was quite extraordinary; he was able to run down the membership of the Provo battalions in Belfast and reel off those involved in specific incidents.

    By day two in Jersey, I was anxious to ask him about the Niedermayer case. He confirmed that the original idea had been to swap the German businessman for the Price sisters and that the kidnapping had been the brainchild of Brian Keenan, chief of staff of the Provisional IRA.

    He also revealed that there had been a degree of personal vindictiveness involved. Keenan had once worked in the Grundig factory and, in his capacity as trade union shop steward, had had a number of confrontations with the German. This was to be his revenge.”

    Good article, dwatch, that shows the level of hate and malice behind these terrorist icons.

    Incidentally, it wasn’t just Thomas Niedermayer’s wife who committed suicide after Keenan had his ‘revenge’ on her husband – her two daughters also committed suicide after their mother.

    Just more of the Shinners hidden victims…

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  28. Mister_Joe (profile) says:

    Anyone want to hazard a guess as to whether or not anything on the tapes will make it into the public domain once the PSNI get them. Apart from leaks, would it be subject to a freedom of info request, for example.

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  29. anne warren (profile) says:

    Juridically speaking the tapes are useless. They are all hearsay. No one can know if interviewee X spoke the truth, had a faulty memory or an axe to grind with someone, told lies, was full of spite and so on and so forth.

    Asking for the tapes (in the hope of collating whatever collateral information may emerge about this murder or another) serves to ensure no more oral records are made. Indeed there was an article in the Guardian on this very point.

    “The Guardian has also learned that as a result of the US justice department’s pursuit of the Price interviews, police officers, soldiers and spies who fought the IRA have pulled out of a proposed parallel project potentially involving a London-based college.

    The members of the security forces, including the Garda Síochána as well as the old Royal Ulster Constabulary, were prepared to shed new light on the secret war against the IRA.”
    http://www.guardian.co.uk/uk/2012/jul/08/us-court-ira-secret-testimony

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  30. tacapall (profile) says:

    Maybe the Irish government could argue their case by citing Britain’s refusal to hand over to the Irish government files they have relation to the Dublin Monaghan bombings that claimed the lives of 33 Irish citizens.

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  31. dwatch (profile) says:

    Jean McConville family hails ruling by US court that IRA tapes must be given to PSNI

    Read more: http://www.belfasttelegraph.co.uk/news/local-national/northern-ireland/jean-mcconville-family-hails-ruling-by-us-court-that-ira-tapes-must-be-given-to-psni-16183056.html#ixzz20C7fVdeE

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  32. dwatch (profile) says:

    “Northern Ireland conflict archives should not fall into police hands”

    “The raid by the Northern Ireland police service on Boston College’s archive of the conflict sets a dangerous precedent”

    http://www.guardian.co.uk/commentisfree/2012/jul/10/northern-ireland-conflict-archive-police

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  33. harpo (profile) says:

    “Juridically speaking the tapes are useless. They are all hearsay.”

    anne:

    You don’t seem to understand what hearsay is.

    A person giving evidence about what they claim to have personally witnessed is not hearsay.

    A person giving evidence about what they claim to have been told by someone else (and they didn’t personally witness the events that the someone else tells them about) is hearsay.

    We’re told in this case that Price has given statements about what she personally did respecting Jean McConville. That isn’t hearsay. It’s about her personal experience.

    Now she could of course be lying but that doesn’t make her evidence hearsay.

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  34. harpo (profile) says:

    “Northern Ireland conflict archives should not fall into police hands”

    “The raid by the Northern Ireland police service on Boston College’s archive of the conflict sets a dangerous precedent”

    http://www.guardian.co.uk/commentisfree/2012/jul/10/northern-ireland-conflict-archive-police

    So McIntyre is still trying to get himself out of the jam that he has found himself firmly in.

    He’s still whining.

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  35. harpo (profile) says:

    “Anyone want to hazard a guess as to whether or not anything on the tapes will make it into the public domain once the PSNI get them. Apart from leaks, would it be subject to a freedom of info request, for example.”

    Talking about the public domain, it’s odd that McIntyre is whining about the actions of the British authorities on the basis that they are trying to control what emerges regarding the past, but isn’t that exactly what he, Maloney and Boston College were doing?

    They weren’t gathering this info so that they could immediately publish it. They were gathering the info so that they could control it, and release it when it suited them, and their agenda.

    McIntyre might have noticed that the peace deal did not involve any general amnesty for people involved in the NI conflict. Given that, anyone gives out information about what they did at their own risk.

    The whole exercise was as usual a way to allow these terrorists to state what they supposedly did during the Troubles. That’s fair enough, but why should they be given protection from prosecution as a result. That wasn’t part of the peace deal.

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  36. Alias (profile) says:

    “A person giving evidence about what they claim to have personally witnessed is not hearsay.”

    Actually it is hearsay since it is statement made outside of a criminal court. Hearsay in UK law is defined under the Criminal Justice Act 2003 as “a statement not made in oral evidence in the proceedings that is evidence of any matter stated” i.e. not made in court.

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  37. Terry B (profile) says:

    Harpo said:

    “Talking about the public domain, it’s odd that McIntyre is whining about the actions of the British authorities on the basis that they are trying to control what emerges regarding the past, but isn’t that exactly what he, Maloney and Boston College were doing?

    They weren’t gathering this info so that they could immediately publish it. They were gathering the info so that they could control it, and release it when it suited them, and their agenda.”

    How do you figure that one out harpo? Is it not true that those who gave the interviews signed contracts stating that their interviews couldn’t be released until after each interviewee’s death? So how could McIntyre and Maloney control the release of these interviews? Perhaps, according to your theory, they were going to kill off each interviewee in order to control the release of the tape-recordings when suitable to them and their agenda.

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  38. dwatch (profile) says:

    Terrorist tapes may come back to haunt Adams
    The PSNI’s latest victory in a legal fight to seize Boston College’s IRA interviews shows truth and reconciliation is a double-edged sword, says Alan Murray

    Read more: http://www.belfasttelegraph.co.uk/opinion/news-analysis/terrorist-tapes-may-come-back-to-haunt-adams-16183073.html#ixzz20ImovVJX

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  39. Neil (profile) says:

    Injunction granted against handing tapes over to PSNI according to U105 News.

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  40. The Lodger (profile) black spot says:

    The injunction is temporary.

    http://www.bbc.co.uk/news/uk-northern-ireland-19523581

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