The opinion of the court was delivered by: BAUMAN
The Attorney General of the United States has moved for a preliminary injunction pursuant to § 7(f) of the Foreign Agents Registration Act of 1938, as amended
("the Act"), directing defendant Irish Northern Aid Committee to produce its books and records for inspection by officials charged with the enforcement of the Act.
The meaningful facts are not in dispute. The defendant, an unincorporated association doing business in the Bronx, registered as an agent of a foreign principal on or about January 29, 1971 pursuant to § 2 of the Act.
A supplemental statement effective January 29, 1972 was filed on March 21.
One week later, on March 28, in a letter emanating from the Internal Security Division of the Department of Justice, defendant's attention was directed to shortcomings in that statement and its failure to comply with other Department information requests. Forms were enclosed where they existed and information concerning defendant's representation of the Provisional Irish Republican Army was specifically requested. The letter went on to say:
". . . We have on numerous occasions advised you of your obligations under this section of the Act and we can only construe any further failures on your part to properly label and report any political propaganda disseminated by you as wilfull violations of the Act."
Frank Durkan, an attorney, replying on behalf of the Irish Northern Aid Committee on April 7, noted that when the defendant's relationship with the Provisional Irish Republican Army had been verified the information requested in the Department's letter of March 28 would be forthcoming. Responding to the point raised by the Justice Department, Mr. Durkan wrote of the membership:
". . . We have, however, impressed upon them the necessity of making every effort to live by and adhere to those rules, no matter how onerous they may be or how unreasonable they may seem. The undersigned has volunteered to help them henceforth."
Durkan's response ended with an offer to try "to assist in obtaining the information you seek" if the Department would thereafter contact him.
A schedule of remittances was mailed by defendant to the Department on or about April 14, from which it appeared that between August 5, 1971 and January 10, 1972, $128,099 had been raised and distributed, all but $7,399 of which was delivered to one Joseph Cahill. On May 15, a letter signed "A. William Olson, Acting Assistant Attorney General, Internal Security Division -- By: Justin J. O'Shea, Chief, Registration Section" pointed out that information long outstanding had not been received and that the schedule of remittances of April 14 was "incomplete" in that it failed, among other things, to show the names of the contributors and the sums contributed. No further information was thereafter forthcoming from the defendant.
On June 23, 1972, Special Agent Paul Donahue of the Federal Bureau of Investigation delivered to Matthew Higgins, the person who had signed defendant's schedule of remittances, a notice dated June 20, 1972 from Acting Assistant Attorney General Olson requiring that defendant's books and records be made available to Special Agents of the Federal Bureau of Investigation for inspection pursuant to § 5 of the Act.
Higgins said the books were not available but would be three days later. That day, June 26, Higgins told Special Agent Donahue that the books and records were not available and that the matter had been referred to the law firm of O'Dwyer and Bernstein (of which Durkan appears to be a member), as attorneys for the defendant.
On June 29, Donahue again contacted Higgins who, in his presence, telephoned Mr. Paul O'Dwyer. O'Dwyer asked that Donahue be put on. O'Dwyer stated that he was the defendant's attorney; that the notice of June 20 requiring the production of the defendant's books and records had been referred to him and that he had advised Higgins not to speak further with representatives of the Federal Bureau of Investigation. The phone was handed back to Higgins. After again speaking to O'Dwyer, Higgins said that after consulting with his attorney he was refusing to make the defendant's records available.
These facts, appearing from the affidavits and attached exhibits, are not in dispute. Thus, the defendant, an agent
of a foreign principal
within the meaning of the Foreign Agents Registration Act,
has failed to fully comply with the registration requirements of § 2 of the Act. In addition, it has refused to allow its books and records to be examined pursuant to the provisions of § 5 of the Act and Rules 500 and 501 promulgated thereunder.
As a result, the Attorney General now seeks to compel the defendant to comply with its statutory obligations.
In opposing this application, defendant points out that, on June 12, 1972 subpoenas were served on four of its prominent members and eight others requiring their appearance at a Federal grand jury investigation in Fort Worth, Texas the following week. That grand jury is investigating possible violations of the Act, gun control acts, conspiracy laws and other Federal criminal statutes and it has not been disputed that its investigation, at least in part, involves the shipment of arms and/or funds to the Provisional Irish Republican Army. From this, the defendant argues that the Government is misusing the Act to aid the criminal investigation pending in Texas.
The only factual dispute then, arises from defendant's speculative assertion that the ". . . Texas action and the New York action are one and the same. The instant action is but another prong of the Texas grand jury investigation -- an investigation admittedly involving potential criminal prosecution." (Affidavit of Frank Durkan.) The Court cannot understand how this position can be seriously maintained in view of the fact that defendant was advised in writing as early as March 28 of its continuing failures to comply with the Act. Indeed, as we have seen, Durkan, as far back as April 7, was solemnly assuring the Department that there would be compliance ...