United States of America: Supreme Court must protect confidentiality of researchers’ sources

By AM Monday, January 14, 2013

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The following statement was issued by ARTICLE 19 on 10 January 2013

United States of America: Supreme Court must protect confidentiality of researchers’ sources
STATEMENT
ARTICLE 19
10 Jan 2013

ARTICLE 19 calls on the US Supreme Court to uphold the constitutional right to protect sources. This right is particularly important for journalists and researchers working internationally, including those working in conflict and post-conflict societies.

In its amicus brief for the ‘Belfast Project’ case, ARTICLE 19 argues that failure to grant such protection would have a dramatic chilling effect on researchers and their sources worldwide. The case concerns information gathering about the conflict in Northern Ireland and ARTICLE 19 argues that without such protection:

• People’s ability to carry out human rights research would be directly threatened
• Researchers and human rights defenders would no longer be able to perform their role of neutral observers
• Researchers and human rights defenders would no longer be able to act as a conduit of important information to the public.

Background

In December 2012, ARTICLE 19 submitted an amicus brief to the U.S. Supreme Court in the case of Moloney v. United States. The case concerns two professional researchers, Ed Moloney and Anthony McIntyre, who worked with Boston College for five years to compile an oral history of the ‘Troubles.’ This is the name commonly given to the 30-year period of conflict in Northern Ireland in the second part of the 20^th Century.

This research, known as the ‘Belfast Project’, involved interviews with former members of paramilitary groups carried out between 2001 and 2006. Because of its sensitive nature and the potential risks that it posed to both researchers and participants, all interviews were given following a promise that each interviewee’s statement would remain confidential in an archive at Boston College in the United States until the interviewee died.

Five years after the interviews were completed, Boston College was served with a subpoena by the U.S. Department of Justice to release the confidential interview tapes. This subpoena was the result of a request from the British law enforcement authorities, submitted under a US-UK Mutual Legal Assistance Treaty (‘US-UK MLAT’). The researchers refused to comply because the tapes were of interviewees who were still alive, which meant that the promise of confidentiality still applied. However, the lower federal courts maintained that the researchers had no constitutional right to be heard on their objection to the request under the First Amendment to the U.S. Constitution. The case is currently pending request for a hearing at the U.S. Supreme Court.

Points made by ARTICLE 19

In the amicus brief, ARTICLE 19 explains why the Supreme Court should clarify that journalists and researchers possess a constitutional right to protect the confidentiality of their sources, including a right to be heard on objections to disclosure. The brief shows that:

• This right is particularly important for researchers working internationally and in conflict and post-conflict societies.

• There is growing international support for – and a wide acceptance of - the right to keep one’s sources confidential when gathering and disseminating information in the public interest. This right has been recognized in constitutions and legislation of many different countries, such as Angola, Argentina Armenia, Austria, Brazil, Burundi, Croatia, Ecuador France, Germany Georgia, Lithuania, Mexico, Mozambique, the Netherlands, Paraguay, Poland Romania, or Sweden.

• This right includes a right to present evidence in support of objections, and can only be limited under exceptional circumstances

• International courts, including the European Court of Human Rights and the International Criminal Tribunal for the Former Yugoslavia, have interpreted the right to protect sources in a broad manner. They have done this with the aim of providing the greatest protection for the free flow of information. They have also done this to ensure the ability of journalists and other communicators, including non-governmental organisations and human rights defenders, to report on matters of public interest.

ARTICLE 19 argues that researchers and human rights defenders who collect information in conflict and post-conflict areas perform a crucial function. When an investigation into a foreign conflict becomes the target of a foreign subpoena, special problems arise for the protection of freedom of expression.  The existence of an MLAT should not undermine such protections for US-based conflict researchers. Reporting on human rights abuses, conflict conditions, and war crimes is often the first step in attracting the world’s attention and international response. Forced disclosure of confidential research materials places these journalists, researchers, and their sources at risk.

ARTICLE 19 also shows that a failure to grant protection in this case could have worldwide repercussions. Too often, foreign governments have their own reasons for singling out journalists and their sources and authoritarian regimes that stifle open dissent commonly harass journalists.  A US-based researcher or human rights defender reporting on a foreign conflict could face further discovery requests from foreign law enforcement agencies. This could, in turn, lead to retribution and threaten future access to sources around the world. This problem could be repeated as the United States concludes MLATs with more and more countries, if there is no opportunity for objection.  Even a call for disclosure from a legitimate foreign investigation could pose a serious threat to researchers, human rights defenders and their sources.

Several killings during the time of the Belfast Project interviews highlight the threat to researchers and informers in this particular case.

• In 2001, loyalist paramilitaries murdered a journalist, Martin O’Hagan, in County Armagh.
• Also in 2001, police informer William Stobie was murdered by the Ulster Defence Association (UDA) after providing information about the Troubles-related murder of Pat Finucane over a decade before.
• In 2005, the year before the Belfast Project interviews were completed, former loyalist leader Jim Gray was murdered by the UDA on suspicion of intending to give information to the police.
• Also in 2005, a high-ranking member of the Irish Republican Army (IRA), Dennis Donaldson, admitted to having been a spy for British intelligence. The following year he was murdered by republican paramilitaries.

Violence persists to this day. Serious threats against journalists and informants continued in 2012.

• In August, death threats were made against a Belfast-based reporter, who was accused of being a ‘republican supporter’.
• In November, Real IRA supporters made death threats against a female journalist who had been reporting about the murdered Real IRA boss, Alan Ryan.
• In December 2012, a pipe bomb was left at the front door of a Northern Ireland press photographer.

Courts have previously decided that these conditions warrant the protection of sources. In 2009, for example, the Recorder of Belfast halted a police request for a journalist’s sources. The journalist had received information about the shooting of four soldiers (two of whom died) and two pizza delivery men at Massereene Barracks by the Real IRA. Although the Court recognised that the information was of substantial value to the investigation of a heinous and high-profile crime, it nonetheless refused to order disclosure.

ARTICLE 19 therefore believes that researchers in this and other cases, as well as reporters and human rights defenders covering conflict and post-conflict areas, should not have their confidences betrayed in the United States. We call on the Supreme Court to grant a hearing in this case and to rule in favour of protecting their sources.

ARTICLE 19 appreciates the support of Snell and Wilmer LLP, who are acting as counsel for ARTICLE 19 in this case, in the preparation of this amicus brief. 

NOTES:

For more information please contact Barbora Bukovska:

• Email: barbora@article19.org
• Phone: +44 20 7324 2516.

Brief Amicus Curiae of ARTICLE 19: Global Campaign for Free Expression in Support of Petitioners