#BostonCollege and the clash of law with the covert politics of peace…

The Boston College tape court case is reaching an interesting pass, though it’s unlikely to be the final decisive stage. The circuit court hearing is worth listening to (takes about 45 seconds before anything happens) for a number of reasons.

One, it’s an, albeit brief court room drama featuring what must be the most comprehensively qualified brief in western jurisprudence (Eamonn Dornan of New York and Belfast)…

And two, it demonstrates the utility of having court cases recorded and made available (hopefully) in perpetuity online.

Ted Holkman’s piece is well worth the read for you law heads.

Elsewhere on the Irish Echo site, Ray O’Hanlon reports on some trepidation in the Senate (and presumably some parts of the lower house). But it would not do to exaggerate the extent to which this has yet forced the hand of the US executive.

Senator John Kerry notes the odd politics behind this (and there’s a lot more than just one line at play here), in this statement (conveniently hosted on the Boston Subpoena site):

I can still remember with vivid detail April 10, 1998 – the day the Good Friday Agreement was signed, under the enormous leadership of President Clinton, Prime Minister Blair, and so many others who wanted the cycles of violence and retribution to end. It meant so many things to so many people – to the citizens of the North, it meant global legitimacy and to many throughout the rest of Ireland it was a hopeful day that the violence just might be coming to an end. Now almost 14 years later, that Agreement, the spirit in which it was reached, and the United States’ role as a friend to the Irish people, must be protected.

I have been in close touch with our Department of Justice, the Department of State, and officials abroad to emphasize the risks of a political exercise that threaten what so many struggled so long to achieve. Treaties like the MLAT between the United States and the United Kingdom are vital, but they were never meant to be used as a method of reaching far back into a difficult history and perhaps eroding a delicate truce that could lead to more lives being lost.

Well, quite. As the Belfast Agreement noted at the time (although I slightly abbreviate): “…a fresh start in which we dedicate ourselves to achievement of reconciliation, tolerance & mutual trust”.

Yet the case of Gerry McGeough (not to mention the drip feed of detail from ongoing HET inquiries) demonstrates that this provides no form comprehensive cover.

As regards the current case, it’s probably best skip to Ted Holkman’s take on the matter:

I was surprised by how well the arguments seemed to go for Moloney & McIntyre, though of course it is a mistake to try to read the tea leaves too closely after an appellate argument. My view throughout the case was that there was a really interesting First Amendment nugget that could come out either way, but that Moloney & McIntyre’s claims should fail.

I still do think their claims under the MLAT will fail—the language of the treaty is clear and the judges did not seem interested in the issue—but I expected the judges to focus on the fact that the documents were BC’s not Moloney & McIntyre’s.

Even if they have sufficient interests to intervene, could Moloney & McIntyre have interests sufficient to give them standing to assert the First Amendment claims? But it could be that when the judges asked Smith to assume for the sake of argument that Moloney & McIntyre have standing, they were not showing their hand on that issue but simply focusing attention on what they thought was the juicier issue, namely the First Amendment issue.

The judges in the circuit court have retired to deliberate on the matter. Whichever way they go, this is likely to end up in the Supreme Court, who will concern themselves solely with the question of Constitutional law. And not the rather clandestine politics of our complex peace.

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