Interviews with former IRA members collected for a Boston College Irish history project cannot be sealed until after their death and must be made available to British authorities and US Justice Department prosecutors, a US Appeals Court has ruled.
The material will now be handed over to police by next month according to press reports.
The British government have been seeking the interviews carried out by researchers Ed Moloney and Anthony McIntyre with leading figures from the IRA and Loyalist paramilitaries as part of a Boston College oral history project. Senators John Kerry and Chuck Schumer had been among those seeking to keep the information secret until the participants had died as had been agreed with them.
The court, as a lower court did, has sided with prosecutors who want full access to the interviews. Moloney and McIntyre had claimed that their assurance to the subjects that their testimonies would not be revealed until after their death covered them.
Chief Judge Sandra Lynch stated the researchers could not claim that they had specific rights under her reading of a legal treaty between the United States and the United Kingdom.
She also stated that the U.S. Supreme Court ruled in its 1972 "Branzburg v. Hayes" decision that journalists do not have the right to refuse subpoenas based on their own promises of confidentiality.
"As in Branzburg, there is no reason to create such a privilege here," Lynch wrote. "The choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers."
Boston College had originally sought to block access to the records also but later relented and agreed to hand some over. Separately, they have sought to stop the release of seven other tapes but the chances are now very slim after this ruling.
The British request came after testimony from a former IRA senior figure Brendan Hughes, one of those interviewed who sought to implicate Sinn Fein leader Gerry Adams in the notorious Jean McConville murder, appeared in a book ‘Voices from the Grave’ by Ed Moloney after his death.
McConville was killed for being a British spy in 1972 by the IRA, but her body was not found until 2003. Hughes, who had fallen out with Adams, made the allegation in the Moloney book but his evidence was hotly disputed.
Former IRA figure Dolours Price was one of several former IRA members who gave interviews as part of The Belfast Project between 2001 and 2006. All participants were assured the interviews were secret until their deaths. But Northern Ireland police probing the IRA 1972 killing of McConville want the recordings.
The British authorities are said to be especially interested in the testimony of Price as she was close to senior figures in the IRA early in the camapign and they believe she has information on several murders. She was formerly married to actor Stephen Rea and has suffered post-traumatic stress following force feeding during her time in prison.
It was also reported by the Irish News newspaper that she gave similar evidence already to a committee set up to track the many cases of people who disappeared during the Troubles
Conducted between 2001 to 2006 and known as the Belfast Project, the goal of the college’s academic project was to interview members of the IRA and other Irish paramilitary organizations about their activities during the Troubles. It was not, however, intended to become a tool of a wider government investigation.
All participants were assured their identities would remain confidential and that the interviews would only be released after their deaths. All of the transcripts are currently maintained by Boston College.
According to lawyers for Boston College, releasing the interviews would break the IRA's so-called code of silence and could lead to punishment by death, according to their court filing.
"Our position is that the premature release of the tapes could threaten the safety of the participants, the enterprise of oral history, and the ongoing peace and reconciliation process in Northern Ireland," said Jack Dunn, a spokesman for Boston College, in a recent statement to The New York Times.
In a statement, a U.S. Justice Department spokeswoman said the agency was happy.
"The decision of the Court also recognizes the strong public interest in not impeding criminal investigations, and the federal interest in reciprocal cooperation in criminal proceedings between foreign nations," it said.
Jim Cotter, one of the researchers' attorneys told Reuters he was "tremendously disappointed" by the ruling.
Cotter said he fears ramifications both on the peace process and on the safety and welfare of his clients and the people they interview, if the material becomes public earlier than they were promised.
"I don't like losing a case based on the law, but in this case I'm more concerned about the safety of our clients and the participants in the Belfast Project," Cotter said, "This is just going to raise old issues that were put to rest with the Good Friday Agreement," the 1998 peace treaty, he said.