By Ross Kerber
BOSTON (Reuters) - Researchers do not have free speech protections that would allow them to keep interviews with fighters from Northern Ireland's sectarian "Troubles" sealed, a U.S. Appeals Court ruled Friday, siding with prosecutors who want access to their papers.
The decision could open an unsettling diplomatic process because material already released from the archive kept at Boston College has connected public figures to a notorious killing by the Irish Republican Army during the armed conflict, ended by a 1998 peace treaty.
After an account was published in 2010, British authorities enlisted the U.S. Justice Department to subpoena the papers last year from Boston College.
The college and the researchers who conducted the interviews filed legal actions to block the release. Efforts by the college to block some disclosures are still underway, leaving the immediate impact of Friday's ruling uncertain.
The researchers - Irish-American journalist Ed Moloney and former IRA member-turned-historian Anthony McIntyre - had argued in court against any disclosure of the material.
They stressed that fighters they interviewed from both the Catholic and Protestant sides of the conflict were promised confidentiality until their deaths.
But the researchers' arguments were rejected by lower courts and again on Friday by a three-judge panel. In her ruling, Chief Judge Sandra Lynch wrote the researchers could not state a claim that they have rights under a legal-assistance treaty between the United States and the United Kingdom.
She also wrote that while the researchers claim an academic research privilege under their constitutional rights to freedom of speech, 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."
Another judge on the panel, Juan Torruella, wrote in a concurring opinion that he reluctantly agreed with the decision to reject the researchers' claims, based on precedents.
But he wrote that he did not agree with what he described as the other judges' apparent view that the First Amendment of the U.S. Constitution does not provide some protection to the researchers.
CALLS TO BACK OFF
The case has been closely watched on both sides of the Atlantic, partly because it marked a rare intrusion of prosecutors into academic efforts.
U.S. leaders including John Kerry, chairman of the Senate's Foreign Relations Committee, had also urged authorities to back off their efforts on fears that they could destabilize still-touchy efforts at reconciliation in Northern Ireland.
Court filings have stated the matter began when U.K. police officials followed up new leads that emerged in 2010 in a notorious killing, the 1972 abduction and killing of Northern Irish woman Jean McConville.
A widowed mother of 10, McConville was killed by the IRA on suspicion of being a government informer - something her family has denied. Her body was recovered in 2003.
Her case got new attention in 2010 following the death of an IRA figure, Brendan Hughes. His death freed Moloney to publish a book based partly on interviews Hughes had granted for the archive. In the interviews Hughes connected political leader Gerry Adams to McConville's death.
Now president of the Sinn Fein political party, Adams has consistently denied being part of the IRA.
Moloney said via email on Friday he would not immediately comment. A spokesman for Boston College did not return a message.
In a statement, a U.S. Justice Department spokeswoman said the agency was pleased the court recognized the legal-assistance treaty does not create private rights for individuals.
"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 based near Boston in Quincy, Massachusetts, said in a telephone interview 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, using the name of the archive. "This is just going to raise old issues that were put to rest with the Good Friday Agreement," the 1998 peace treaty, he said.
(Reporting By Ross Kerber; editing by Todd Eastham)