Case 1:11-mc-91078-WGY Document 35 Filed 12/22/11 Page 1 of 28 1

1 2 3 4 5 6 7 8 9 10 11 12 CONFERENCE

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS M.B.D. No. 11-mc-91078-WGY * * * * * * * * * * * * * * * * * * * * * * * * * * IN RE: Request from the United Kingdom *
Pursuant to the Treaty Between the Government of the United States of America and the Government of the United Kingdom on Mutual Assistance in Criminal Matters in the Matter of Dolours Price. * * * *

* * * * * * * * * * * * * * * * * * * * * * * * * *

BEFORE:
13 14 15 16 17 18 19 20 21 22 23 24 25

The Honorable William G. Young, District Judge

APPEARANCES: JOHN T. McNEIL, Assistant United States Attorney, 1 Courthouse Way, Suite 9200, Boston, Massachusetts 02210, on behalf of the Petitioner EDWARDS WILDMAN PALMER LLP (By Jeffrey Swope, Esq.), 111 Huntington Avenue, Boston, Massachusetts 02199, on behalf of the Trustees of Boston College

1 Courthouse Way Boston, Massachusetts December 22, 2011

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE CLERK: be seated. Miscellaneous Business Docket 11-91078, In Re Application for Appointment of Commissioner. THE COURT: themselves again. MR. McNEIL: for the United States. MR. SWOPE: Boston College. THE COURT: on such short notice. I called us together in an attempt to be helpful and get this matter on a prudent, timely track. three things I want to do. And I have Good morning. Thank you for coming in Jeffrey Swope, with me Nora Field, for Good morning, your Honor. John McNeil Good morning. Would counsel introduce All rise. Court is in session, you may

And the first thing is to

respond really to the affidavits most recently filed and specifically the affidavit of Mr. Robert K. O'Neill, the librarian. I must tell you, Mr. Swope, that I'm quite Though I didn't take a

disappointed in that affidavit.

position, there is much to what Mr. McNeil had to say when last we met that one would have thought that the librarian had a pretty good idea of what was in his repository. He

says he read it at one stage, or he went over it, and we need to get a better handle on these 24 individuals and the 190 interviews.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And so my first question is how many transcripts, because transcripts are the easiest thing for this Court to work with, how many transcripts do we have out of those 190 interviews? MR. SWOPE: First, your Honor, I apologize if I do not recall that

you're disappointed in the affidavit.

Mr. O'Neill has ever said that he read through all those transcripts. In fact, he said the opposite. All right. I would have thought he

THE COURT:

would have had a better understanding of what he had. MR. SWOPE: THE COURT: MR. SWOPE: No. Now, how many, how many transcripts? We have, we have a count of 192

transcripts if I read it -THE COURT: MR. SWOPE: THE COURT: are interviews? MS. FIELD: No, your Honor, there's one paper So -Printed. Is that as many transcripts as there

transcript missing, and in one case there appears to be some misnumbering. THE COURT: MS. FIELD: THE COURT: MS. FIELD: All right. So it's very close but -It's very close. Yes.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: I want them. They'll be delivered by

noon on Tuesday, December, let's see, December the 27th, in the form already adopted. receipt for it. delivered to me. MR. SWOPE: THE COURT: MR. SWOPE: THE COURT: MR. SWOPE: Copies are all right, your Honor? Copies are all right. Okay. In terms of transcripts. In order to do the copying, we will We will -- the clerk will give a They'll be

You draft up such a receipt.

have to bring the original transcripts to my office for copying because Boston College is closed. make sure that -THE COURT: MR. SWOPE: THE COURT: I have -Mr. McNeil -As far as I can see, complete good I just want to

faith on the part of all parties. MR. SWOPE: It's only chain of custody questions That's the only reason

that Mr. McNeil was raising earlier. I raise it. THE COURT:

You're right to raise it.

But so long

as he makes a record, he has to make the copies. MR. McNEIL: I think that's fine. Really I think

the only core chain of custody here, your Honor, are the tapes. So the transcripts are something that's made from

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are fine. The second thing I wanted to do is address in fact the most pertinent question, and it was posed by Mr. McNeil. I had conceived of it, but I really couldn't address it when we met last time. And to rephrase your question, but it the evidence, so I'm not as concerned about the transcripts. THE COURT: helpful -MR. SWOPE: THE COURT: That makes it easier. -- and that's how we'll do it. Copies All right, thank you. That's both

goes to the heart here, you asked in an appropriate form what are you doing, what are you balancing, what are you going to do with the materials you get. You say you need an

in camera review, how are you going to conduct it. And because I don't contemplate any further lengthy opinion, though I may give an opinion, now that I have had the production made thus far, I can be much more responsive to what I am doing and I thought I would take a moment to explain it. I may be reviewed on it. It is appropriate

that I explain. First, I do not conceive that in review of these materials in response to a subpoena issued by a Commissioner under our Mutual Legal Assistance Treaty that I -- well, I conceive that what I am doing is reviewing the materials on the one hand to see that they fall within the scope, fairly

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 construed, of the subpoena. one hand. Now, that's fairly easy. Because Boston College That That's all I'm doing, on the

was and appears to be acting in complete good faith.

subpoena asks for the tapes and transcripts of interviews with a particular person. So you look at them. Boston

College has already identified such data and at the Court's order they have submitted that data. I'm checking, on the one hand. And that's really all

That's pretty quick.

I do want to say that I am not reviewing for any issue of relevance as we attorneys would think of it in terms of an in-court legal proceeding. do that. I'm not competent to

The alleged goals, or the crimes which it is

asserted are being investigated are crimes with which I am familiar under the laws of the United States, and I might infer that the elements of those crimes both at common law, especially since the requesting state is the source of much of our common law, are much the same. But, one, that's too narrow as I view the judicial role here, and I say again I'm not competent to do that. don't know the setting. setting. You need to know the factual I

Because the concept of relevance is both the issue

of materiality, which maybe I could grapple with, and then logical relevance. And I have nowhere near sufficient data

to do any assessment of logical relevance, nor do I think

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that's the judicial role. So I'm not doing it. All I'm

doing is checking to see whether the data produced conforms to the subpoena. Now, while that's relatively easy with respect to the first subpoena addressed to a particular individual, I now understand that that is a more discrete inquiry with respect to the second subpoena -- I've seen no data relative to that, but Boston College is going to produce it -because that's addressed to events. And we have skirted

that issue by talking about, Mr. McNeil, whether you would provide a listing or a further description of the setting of events. I welcome it but don't require it. But applying

the same standard, which I believe to be the appropriate standard under the Legal Assistance Treaty, I must look over the materials to see whether, fairly read, they fall within the scope of the subpoena. scope of the subpoena. Not relevance but within the

And data that relate entirely to

other events, other times, I'm not going to order produced. That's on the one hand. On the other hand, I have

said that I am balancing it against the free flow of information, which is the best I can glean from the decided cases. Not a privilege, a reporter's privilege or an

academic privilege, but a sensitivity to the importance of the free flow of information in our society and the essential role that our institutions of higher education

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 here play in that. And I can be more specific now because I've commenced my work. Without in any way getting into the

substance, it's perfectly clear to me that, you can see it in these interviews how the interviewer gains the confidence of the subject, how the more general background circles around and then begins to focus more clearly on matters of interest to the interviewer. And what is perfectly clear to

me is that the subject of the materials I am reviewing now would never have said the things she said had she in any way understood that they could be revealed to the requesting state, specifically here, the British authorities. British authorities in Northern Ireland. The

And it's perfectly

clear to the Court that had that been understood she never would have consented to these interviews and what she has to say would be lost. Further, it's clear to the Court, and this is where I've, I've spent more of my analysis and looked at these materials more carefully, these materials are of interest. They are of interest -- valid academic interests. They're

of interest to the historian, sociologist, the student of religion, the student of youth movements, academics who are interested in insurgency and counterinsurgency, in terrorism and counterterrorism. They're of interest to those who And I'm sure others.

study the history of religions.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 matter. And while that may be less so on these more abbreviated interviews, that I have yet to see, the very fact that there are more of them, and I'm going to look at all the interviews of all those people who are said to be involved with the IRA, that's a body of knowledge. But it All

doesn't add to the question of how you do the balance. I do is, and I'm willing to say it, I recognize that the

data that I have looked at and that I expect to look at, at least such data as I might turn over to the Commissioner, is responsive to the subpoena. I've already held, and there's

no reason to question it, I do not question it, the validity of the subpoena, the validity of the, to the extent this Court has anything to say about it, the exercise of sovereign authority under the Mutual Legal Assistance Treaty. But, on the other hand, it really does look like

revealing this, contrary to what people understood, that it would have some effect on the free flow of ideas. And how to strike that balance is a difficult Because looking at the material internally does not

give me sufficient understanding, it seems to me, truly to appreciate the effect on the flee flow of ideas. And I am

puzzling about that and am happy to receive your assistance. I will tell you one thing I have done and one thing we might do, but I don't want to cause delay. I'm struck in these circumstances, and it would

10 Case 1:11-mc-91078-WGY Document 35 Filed 12/22/11 Page 10 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 repay you to read this to see if I understand it correctly, I'm struck by a brilliant law review article by the Honorable Dennis Jacobs. Second Circuit. Judge Jacobs is Chief Judge of the

The article has the intriguing title -- I

wish I could give you the cite -- "The Secret Life of Judges." And when you read it, he posits this situation. He may not say it exactly this way.

This is an example.

But suppose you had an epidemic, an epidemic like the flu epidemic in 1918, and the various disciplines of society were mobilized to deal with that epidemic. Now, physicians would come in and they would engage in triage. They would do everything professionally they

could to save those that have a chance of living and the rest would be left to die. and take a different view. Epidemiologists would come in They would be desperate to know

everything they could about those who were going to die because they would be desperate to find out ways to prevent those deaths. The police and military authorities, if there

was a breakdown in the civil order, would come in and they would be concerned about preserving public order, they would be concerned about curfews, preventing looting, quarantines, if quarantines were necessary. And the judges and those in

the legal process would be concerned about due process, treating everyone as an individual, properly, or quarantining and not overly quarantining.

11 Case 1:11-mc-91078-WGY Document 35 Filed 12/22/11 Page 11 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And Judge Jacobs' point is that all of those professionals would be right by their own lights, but their own lights would be sharply different. And I'm called upon

here to, higher courts have used this phrase, but I'm called upon here to do a job, a balancing job that balances now our solemn obligations under a treaty that talks about law enforcement assistance, proper law enforcement assistance on the proper investigation of what appear to be most serious criminal offenses, offenses which in the United States in terms of murder would have no statute of limitations. Against what? The free flow of ideas? And I am seeking to

guard myself against, I won't say the prejudices, against the discipline of my own profession. And to that end I've done one thing and I suggest something else. I've instructed my excellent law clerks to So I'm

see what we can find on the blogs about this issue. reading all the blogs. communication.

I don't think that's any ex parte

I recognize that most of the people who are Still, those are

minded to write are self-interested. voices that I want to hear.

It's not ex parte because

anything I've looked at you're able to find by going to the blogs. And I've printed it all out. If anyone wants to see I have

what I've looked at, you're all welcome to see it. no suggestion as to what weight or effect. hear the voices.

I simply want to

And of course having said this in open

12 Case 1:11-mc-91078-WGY Document 35 Filed 12/22/11 Page 12 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 court maybe we'll hear more, and I don't necessarily invite it. here. Then I thought to myself who would I want to talk to about this. talk to her. And one person leaps to mind, but I can't So I thought I would tell you about her. I But I'm going to be looking while I work my way through

can't talk to her because that would be ex parte.

Instead,

I'm going to mention her to you and just leave it to you. There's a professor in the Harvard Law School, her name is Gabriella Blum. Professor Blum as near -- I know

her because I was on a panel about 911 with her at the Boston College Law School. Professor Blum. And I have enormous respect for

It appears that she is an expert on, she's

an expert on the law of war, she's an expert on terrorism, on the meshing of the rights and liberties that a sovereign state necessarily asserts, asserts on behalf of its citizens, and the compulsions of armed combat. fascinating. what she does. And she's That's

And more than that, she's an academic. She studies these things.

So, if she has anything to say about this, I would be interested to know what it is. her. But I'm not going to call

And I'm not going to slow this down either to start I just give you her Here are two She was

taking evidence or something like that. name.

I also happen to have her phone number.

phone numbers that you would be able to get her.

13 Case 1:11-mc-91078-WGY Document 35 Filed 12/22/11 Page 13 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 out at Harvard, six months ago. Her numbers are {Redacted}.

I don't need to hear from her, but it occurs to me. So that's what the Court is doing. get this on track. As to the first subpoena, I'm going through these interviews fairly fast given the parameters, I'm going to be through my review of that fairly soon, unless I get engaged in major other judicial duties. As to the 190, I imagine they're shorter. That's a Now we have to

harder job because I'm going to have to check it against how I read the subpoena. And anything someone wants to help me

on, I would accept the help. Now, I should -- let me stop and ask you a question, Mr. McNeil. I think if I review those matters, even though one may be misnumbered and one may be missing, because you've persuaded me that if, if I order anything to be turned over it's going to be the originals, the tapes and the like that I'm going to order turned over. Do you think from

your point of view that that review is sufficient to satisfy the needs of the requesting state? MR. McNEIL: There's one other step which I think

is important and I suggested it to Mr. Swope yesterday. While the Court doesn't have any reason to believe that the transcripts are inaccurate, we also don't have very

14 Case 1:11-mc-91078-WGY Document 35 Filed 12/22/11 Page 14 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 much information about how accurate they are. And I think

it's really incumbent upon Boston College as a library institution to give the Court some general frame of reference, to look at one, look at one or two, some representative sample to say these are accurate transcripts. THE COURT: with that. You anticipate. I have a way to deal

But I come at it a little differently. I think that once I've read

Here's what I think.

the transcripts -- or maybe, maybe I'll enter two orders. I'll read the first one and enter some sort of order having to do with that, and then I'll read the rest of it and enter some order having to deal with that. as soon as I can. Let's assume, we're only assuming, but let's assume I order Boston College to turn the data over to you as Commissioner. Some data over to you as Commissioner. And I And I hope to do that

identify what that data is.

I have every reason to believe

they'll comply, and then you'll have it. Then what I propose is that I subject you, and it will be in my order, to a confidentiality order and I require you as representative of the requesting state to make copies, at your expense, and return the copies to Boston College so that they have a full set of archival materials. Duplicate originals can be made. And in that

way I am trying to satisfy, though we're concerned about

15 Case 1:11-mc-91078-WGY Document 35 Filed 12/22/11 Page 15 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 what precedent this may set on the free flow of information going forward, I certainly want to preserve the archival materials, subject to the agreements Boston College has made, for historians and others as the materials may become available. And I wrote a case when I was privileged to sit with the Federal Circuit, it was in the Court of Claims, and you can find it, but I quickly characterize it. In a lawful

investigation our government, the United States, seizes a warehouse full of drugs, prescription drugs. And the

problem was not that they were contraband drugs, the problem was with the activities of the warehouse owner. And the

owner of the drugs said, you know, you got a half a million dollars of our drugs, these have a sell-by date or they're worthless, give them to us. And the government said we need

them as evidence and in fact did not move with expedition and a half a million dollars of prescription drugs that could have been used for the treatment of disease were rendered worthless. So the drug manufacturer sues in the Court of Claims and it gets to the Federal Circuit. Speaking on

behalf of the Court, and consistent with the law, the decision, which I was privileged to write, in essence said too bad, to the lawful owner. I'm going to avoid that. The archival materials

16 Case 1:11-mc-91078-WGY Document 35 Filed 12/22/11 Page 16 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have all got to go back to BC, because I have no power with respect to the requesting state. And while I can subject

you to a confidentiality order, once you've got it, I assume you turn it over to the requesting state. solves that problem. copies. So, I think that

I'll let you have it and you make

They can get the copies back and then you --

assuming I give you something. MR. McNEIL: I don't understand why this would be

termed a confidentiality order. THE COURT: Oh, just while you're making copies.

I'm not saying you personally have to do it, but it's under your supervision. MR. McNEIL: THE COURT: Right. For example, they're going to give me I'm going to review them. And

these transcripts Tuesday next.

Now, as to those some you may get and some you may not. my order will be clear as to what I've done so I can be reviewed. So as to things you get, I haven't listened to

the tapes themselves, but I'm confident enough that the transcripts will be sufficiently accurate, if they're anything like what I'm reading now, that by turning over a tape that covers this you'll have the subject matter that's within the subpoena. So all you have to do is -- it's

just -- the confidentiality order is you're not to turn it over to the requesting state until you've made the copies

17 Case 1:11-mc-91078-WGY Document 35 Filed 12/22/11 Page 17 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and given the copies back to, back to BC. the expense is on you. materials. I think properly

They're the lawful owner of the

You want them, you ought to bear the expense.

But you can engage whatever, like the U.S. Attorneys normally do, whatever copying service you use. But those

people are as per usual, it's not for them to disclose. MR. McNEIL: THE COURT: As if it were grand jury material. Precisely. Just like, just like it's a

wiretap and you have to make copies for defense counsel. That's all I meant. MR. McNEIL: All right. So if I may just address

one mechanical issue as well. In addition to, for instance, the first set of materials related to Price, in addition to the recordings and transcripts, there was also a request for any communications or other documents which BC holds which describes the conditions under which those interviews were made. So, again, you know, because, for instance, let's say There's going to --

this matter were litigated in the UK.

there may be some claim that these were made under duress or some other form and so -THE COURT: But that's what persuaded me, I will

tell you, that you get the originals so that you can hear the inflections and you can hear the pace of the interview and the like. And I have no reason to believe, but I'll

18 Case 1:11-mc-91078-WGY Document 35 Filed 12/22/11 Page 18 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ask, that they have not now by turning over these transcripts turned over everything they think is responsive to the first subpoena. MR. SWOPE: Have you?

By turning over the transcripts to the I don't

second subpoena, that's all that's called for. recall that -THE COURT: first one. MR. SWOPE:

No, no, first, we're talking about the

The first subpoena, we've turned

over -- we have already produced for Hughes everything that is responsive to it. the transcripts. We have turned, given to your Honor

There is no other, there is no donation

document, we said in our papers, for her that can be found. THE COURT: MR. SWOPE: Right. And so there are no other documents for

Price that Boston College has. THE COURT: I don't impugn that. I think that

answers your question. MR. McNEIL: Well, actually, your Honor, I've been

looking for the subpoena, but I didn't want to, I wanted to pay attention to what you were saying. I'm fairly confident

that the subpoenas, including the subpoenas as they were narrowed between the parties, called not just for the transcripts and recordings but for any related BC documents under, that show the conditions under which --

19 Case 1:11-mc-91078-WGY Document 35 Filed 12/22/11 Page 19 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 things. THE COURT: MR. McNEIL: THE COURT: you're right. Yes. -- how they were kept. I have the subpoena right here. And And I

And he just said they turned it over.

have no reason to doubt it. MR. SWOPE: We're talking about two different I believe

He's talking about the second subpoena.

you were asking me about the first subpoena. THE COURT: MR. SWOPE: Well -We have not obviously turned over

anything under the second subpoena yet. MR. McNEIL: turned over -THE COURT: MR. McNEIL: Please always address me. Sorry. But -And have you, has Boston College

I just -- unless the Court's

telling me different, I thought you just received a set of transcripts, you received no documents -THE COURT: MR. McNEIL: THE COURT: That is --- from BC about the conditions. That is correct. But the subpoena

calls for -- let's, let's get it. calls for: One:

Specifically the subpoena

The original tape recordings of any and all

interviews, naming the people. Any and all written documents including, but not

20 Case 1:11-mc-91078-WGY Document 35 Filed 12/22/11 Page 20 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 limited to, any and all transcripts relating to any and all tape recordings of such interviews. Three: Any and all written notes created in

connection with such interviews. Any and all computer records created in connection with such interviews. That's the subpoena. MR. McNEIL: THE COURT: That's the first subpoena.

That's right, your Honor. So let me put it to Mr. Swope. Has

Boston College, and this is important because it will bear on the Court's order, has Boston College identified and collected all such documents so that they may be turned over, even though all I've requested be given to me for in camera review are the transcripts. those documents collected? MR. SWOPE: The first point is, your Honor, you'll So have you got all

recall that there was a further discussion between the government and Boston College about how to interpret these four original paragraphs, and we reached an agreement about limiting the description of them. So this is as modified by

that subsequent agreement of the parties. THE COURT: MR. SWOPE: I understand. We have then turned over everything for

Hughes which did include -- the only other thing there is is a donation agreement. For Hughes there was a donation

21 Case 1:11-mc-91078-WGY Document 35 Filed 12/22/11 Page 21 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 minutes. agreement so that went to the government. For Price, we've

only turned over to your Honor the things that are responsive to this subpoena as modified. Those are only the

paper transcripts, because that's all your Honor requested at this time. There is as we said -I understand --- earlier these tapes and -Right. I understand.

THE COURT: MR. SWOPE: THE COURT: MR. SWOPE:

-- mini disks and all of that, and the There is no

DVD's, which we've turned over to your Honor. donation agreement for Price.

So there is no other thing

other than the various forms in which the transcripts appear in other media. THE COURT: MR. McNEIL: Right. Thank you. I know

So, if I -- just one question.

when the Hughes materials were turned over, the government was given a series of e-mails and other related documents. So as I, if I understand the representation today, there are no additional documents like that. THE COURT: representation. That's how I understand his

And I do not question it. All right. There's one -- I'm sorry,

MR. McNEIL:

I didn't meant to interrupt the Court. There's -- if the Court would just give me two You talk about this balancing analysis and the

22 Case 1:11-mc-91078-WGY Document 35 Filed 12/22/11 Page 22 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 difficult questions you face in balancing. And if I could

make one suggestion, or maybe two suggestions on that front. First, as the Court's aware, it's the government's position the Court doesn't need to engage in that. understand that you've rejected that. I

But I think there are

three entities which have already done the kind of balancing analysis exactly like what the Court is contemplating doing. The first is the Supreme Court, the second is Boston College itself, and the third is the Columbia, the Columbia University which is sort of the entity which sort of created the academic world of oral history. In Branzburg the Supreme Court essentially had to make a similar decision, saying we're concerned about the free flow of information and the free flow of information from sources to reporters. And we want -- and that's a very

important source of information and there are many First Amendment issues tied up in that. But the Court ultimately

concluded that the investigation of criminal conduct is more important. THE COURT: Mr. McNeil, you know, I have read your

brief and I have that in mind. Now, what about these factual matters? course I've read Branzburg afresh. MR. McNEIL: What else? And of

Well, with respect, and maybe this is

reflected in the brief as well, Boston College itself when

23 Case 1:11-mc-91078-WGY Document 35 Filed 12/22/11 Page 23 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it contracted with these subcontractors said confidentiality and then limited as, as it says in that agreement to the extent provided by law. institution itself. THE COURT: MR. McNEIL: THE COURT: MR. McNEIL: really the only two. THE COURT: MR. McNEIL: wanted to make. Sure. There's one other factual point I I have read the brief. All right. I haven't forgotten it. So that's -- with respect -- those are So there's a recognition by the

And that is the Court said when it was

reviewing the Price materials, that there's no question in the Court's mind that she would not have engaged in these interviews absent a complete assurance of confidentiality. I have submitted to the Court most of the news articles which reflect that after these interviews were done she did additional interviews with news reporters about many of the same subjects, and she essentially admitted to a number of these related crimes. THE COURT: understand that. make a good point. and look at that. MR. McNEIL: There's one other -- since the Court And I've -- I understand that. I do

But as to this -- well, actually, no, you I will go back and look. I will go back

24 Case 1:11-mc-91078-WGY Document 35 Filed 12/22/11 Page 24 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is going to be looking at blogs. And usually there's a

certain kind of character that writes on blogs, and so I think you're going to get, you may get an unbalanced view. But let me recommend -THE COURT: I could not be more sensitive to that.

And if there's anything you want to put before me, I'm happy to receive it. We're not deciding this case in any way,

shape or form on the blogosphere. MR. McNEIL: THE COURT: Right. I think there's --

All I'm trying to do is hear voices.

Just hear them, that's all. MR. McNEIL: I think there's two voices that I will The first is the

recommend to the Court in that process.

voice of Juliette Kayyem, who is now and has recently been an editorial writer for the Boston Globe. She wrote And I would

specifically on this matter many months ago.

also recommend the Boston Globe Editorial Board, which also wrote on this matter some months ago. And they -- those are

people who clearly are interested in that balance that the Court's talking about, and I think that they have helpful information for the Court. THE COURT: Very helpful. I'll get, I think if

I think we're at an end here.

I get all these interviews I'll be in a position to make appropriate orders.

25 Case 1:11-mc-91078-WGY Document 35 Filed 12/22/11 Page 25 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 You have no objection to bearing the expense of making the copies, Mr. McNeil? required. MR. McNEIL: I don't expect so. The only thing is I really think that's

there's some of these -- I'll have -- I'll talk about it with Mr. Swope. Some of what's produced -- these recordings I will have to figure out whether

come in various formats.

I can reproduce the exact format or whether I can give it to them in a different, the same thing in a different format that is easy readable on US machines. THE COURT: You work that out. My own -- and I am

technologically challenged.

But my own internal review with

my staff of these different formats that were mentioned leads me to believe that that all can be done. Let me ask Mr. Swope if he has any questions. MR. SWOPE: Thank you, your Honor. I'll be very

brief, and I'm going to try to restrain myself to the facts. But your Honor has been eloquent about the role that the Courts have to play in an MLAT subpoena. I would suggest

that if it's as simple as, when we know that this investigation is about the McConville incident, if the government asks give me the tape, give me the interviews of Price or give me the interviews of Field, that are about that, but that's all the Court does, the Court says done, is this a transcript of a interview with Field? Yeah. Then it

26 Case 1:11-mc-91078-WGY Document 35 Filed 12/22/11 Page 26 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 gets turned over. When it has no relation to the underlying

purpose of the investigation then the Court has put itself back in the box of simply being the agent of the prosecution. I really would urge the Court to rethink the

question whether it should not take into account the purpose of the investigation when it reads the Price materials. Because if there is not material in there about the McConville murder, but there is other important information that your Honor notices she would not have given up otherwise, about her personal affairs or whatever else it is, that really is irrelevant and that goes to the heart of balancing that other side. THE COURT: Well, with respect, Mr. Swope, and

that's why I have spoken with some precision, I don't think it is the role of this Court to perform a relevancy inquiry. And I'm not doing that. Now, that's how we're proceeding. MR. SWOPE: May I just make one other

different point, your Honor. THE COURT: MR. SWOPE: Yes, of course. The question over turning the tapes to

Boston College so that they will be preserved and available for future historians. That will not -- if that happens

then the interviewees will contact Boston College and say we want it back. We no longer have faith in the

27 Case 1:11-mc-91078-WGY Document 35 Filed 12/22/11 Page 27 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 confidentiality of this system. And they will be lost. And

that is an inevitable consequence of how this is playing. THE COURT: Because you, because you believe it is

your obligation then to return them to the interviewee? MR. SWOPE: Absolutely. If we, if we are holding

them and took them on a condition of confidentiality and we can't maintain that. THE COURT: to consider. MR. SWOPE: THE COURT: Thank you. But I do thank you. Then, then that's something I'll have

All right, we'll call the next case. (Whereupon the matter concluded.)

28 Case 1:11-mc-91078-WGY Document 35 Filed 12/22/11 Page 28 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 /S/ DONALD E. WOMACK 12-22-2011 ____________________________ DONALD E. WOMACK Official Court Reporter P.O. Box 51062 Boston, Massachusetts 02205-1062 womack@megatran.com I, Donald E. Womack, Official Court Reporter for the United States District Court for the District of Massachusetts, do hereby certify that the foregoing pages are a true and accurate transcription of my shorthand notes taken in the aforementioned matter to the best of my skill and ability. C E R T I F I C A T E