by Irvin Muchnick
Despite rejecting United States citizenship for long-time resident alien George Gibney, the disgraced former Irish Olympic swim team head coach, after he appeared to conceal from his application a 27-count indictment for sex crimes in his native country, the American government decided in 2010 that this problem was not grounds for further action — specifically, the action of removing him from the U.S.
This is the principal finding emerging from the government’s settlement with this reporter of my 2015 Freedom of Information Act lawsuit for Gibney’s immigration records. The settlement was filed yesterday in San Francisco with the U.S. District Court for the Northern District of California, after the government dismissed its appeal of Senior Judge Charles R. Breyer’s ruling last year.
In the final hearing of the FOIA case, Breyer had questioned the government’s rationale for having imposed no consequences on Gibney. A resurgence of the two-continent campaign to expose his Irish past and return him to face charges seemed to be what sparked the failed citizenship application, after Gibney had already been living here for some 16 years. See https://concussioninc.net/?p=12269.
“We’re not a refuge for pedophiles,” the judge said at the October 2016 hearing.
Breyer then ruled “(largely) in Muchnick’s favor” in my effort to secure more documents shedding light on Gibney’s immigration scenario. The long sequence of events had started with a successful visa application back in 1992, at a moment when the coach was under siege as a central figure in the widespread sexual abuse scandals roiling Ireland’s youth swimming programs.
In February of this year, the new Trump administration’s Department of Justice, on behalf of the defendant Department of Homeland Security, appealed Breyer’s FOIA decision.
The text of the settlement agreement, negotiated under the auspices of the Ninth Circuit Mediation Service, is at the bottom of this article. A facsimile of the settlement agreement is viewable at http://muchnick.net/foiasettlement.pdf.
Under the compromise, the government certifies that it both turned down Gibney’s application and allowed him to stay here nonetheless — documenting what Breyer had articulated in open court, albeit perhaps only hypothetically. In addition, the government discloses that Gibney’s original 1992 visa came under a diversity lottery program.
The government also will be releasing to me, within five days, non-protected portions of records associated with the 1992 visa application. However, certain other material, which had been targeted for release by Judge Breyer’s order, remains undisclosed under the agreement.
In the coming days, Concussion Inc. will be publishing more articles based on analysis of the newly released Gibney documents.
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The settlement lays bare the most complete timeline yet of Gibney’s immigration scenario. And the American government’s admission that it decided against removal from the country of the notorious coach, after all that had been learned about him by immigration and law enforcement authorities, makes this story, for the first time, explicitly a tale of serious questions about the official actions of two governments — both Ireland’s and our own.
What remains to be seen is how vigorously this new information rekindles the decades-long effort to bring Gibney to justice and to hold accountable responsible officials of the global swimming establishment. The latter include Swim Ireland, USA Swimming, and — perhaps most acutely — the American Swimming Coaches Association, which is suspected of brokering the coaching position in suburban Denver that Gibney briefly held after he arrived in this country in 1994.
The FOIA case resolution comes nearly three years after Maureen O’Sullivan, who represents the Dublin Central district in Dáil Éireann, the principal house of the Irish legislature, requested that An Garda Síochána, the national police, review both past and newly emerging information on Gibney’s crimes, for the purpose of reconsidering efforts to get him extradited from the U.S. and retried in Ireland. Irish sources say the Garda review is ongoing.
The settlement also culminates a year during which Concussion Inc. reported a previously unknown incident: the detailed account, by the alleged victim, of Gibney’s molestation of her as an 11-year-old girl in 1982 at the since-closed swimming pool complex of Dublin’s exclusive Burlington Hotel. After the publication of our article, a lieutenant with the Garda’s National Protective Services unit, through this reporter, contacted the victim, who is now in her 40s, to solicit her interest in filing a complaint.
Here are some key known data points of the Gibney timeline. Items now enabled by the American FOIA case documents are in italics.
December 1990
Irish swimming coach Chalkie White confides to Irish Olympic swimmer Gary O’Toole that Gibney had sexually abused White going back to 1967, when White was 11. O’Toole (today a prominent orthopedic surgeon in Ireland) responds by organizing other Gibney victims to communicate their individual and collective allegations to Irish swimming authorities and to police.
1991
While on a training trip with his Trojans swim club, Gibney rapes and impregnates a 17-year-old swimmer (whom he had previously molested in Holland). The girl is taken by an Irish swimming official to England for a secret abortion. This is significant both in its own right and because it would become a known instance of Gibney’s heinous misconduct on American soil.
As allegations against him surface and multiply, Gibney resigns as national swim coach.
1992
An Irish police precinct issues Gibney a “certificate of character” in support of his U.S. visa application. (The certificate is suspected to have represented that Gibney had no criminal record — something that may be clarified when additional documents are released to me under the settlement within the next five days. If the certificate did state that Gibney had a clean record, this would have belied allegations that were already beginning to get submitted to gardai. At the time of the certificate, formal charges against Gibney were imminent.)
Gibney’s visa application is successful. Under the settlement, the government certifies that the application was under the so-called Diversity Lottery Visa Program.
The program, which was established in 1987, was designed to favor applicants from Ireland, Canada, and Great Britain. In an essay last year for Time magazine, Francesca Gaiba, a professor of medical social sciences at Northwestern University (and himself a beneficiary of the program, from Italy), framed the diversity lottery as a reaction to the 1965 Immigration Act, which had shifted the composition of the immigrant pool from white Europeans to families from Asia and Latin America.
Gibney’s visa came during the program’s third incarnation, from 1991 to 1994. In this period, some 48,000 visas — around 40 percent of the total — were reserved for Ireland. These were known as “Morrison Visas” after the sponsor of the enabling legislation, Congressman Bruce Morrison of Connecticut. Some were also called “Donnelly’s” after Congressman Brian Donnelly of Massachusetts, whose own legislative initiative similarly addressed the wishes of the Irish-American immigration lobby.
Irish sources — both those still in Ireland and some who themselves made it to the U.S. under this program — say that the process was beset by cronyism and manipulation, at least on the Irish end. Well-connected applicants seemed to secure in disproportionate numbers the ostensibly random golden winning lottery tickets.
This FOIA settlement does not uncover evidence of such chicanery with respect to Gibney’s visa. What the settlement does establish is that Gibney’s was, indeed, such a diversity lottery visa — an immigration benefit not attached to professional qualifications or other special factors.
The chronology of the intake of documents by the U.S. government, a provision of the FOIA settlement, also shows that Gibney submitted the police certificate at the time of his visa. This begs the question of why Gibney would do so after having already won the right to apply for the visa in a random lottery process that required the support only of a medical exam. (The same curiosity applies to Gibney’s submission of a letter offering him U.S. employment as a swimming coach — about which more below.)
1993
Gibney is arrested and indicted in Ireland on 27 counts of indecent carnal knowledge of minors.
1994
Gibney’s prosecution is thrown out of court in the wake of a controversial statute-of-limitations ruling by the Supreme Court. One of the sitting justices, Susan Denham (later the chief justice), did not recuse herself from the case even though her brother, Patrick Gageby, was Gibney’s lawyer.
Gibney moves to the U.S. by way of Scotland.
2010
A new renewal of the periodic campaign to expose Gibney in his local community and to spur his extradition is undertaken by Irish native Evin Daly, head of the Florida-based advocacy group One Child International. By this time, Gibney is living in central Florida, following stays in Colorado, California, and other American locales.
March 18: Government files reflect receiving “third party information” about Gibney. [Daly has confirmed to Concussion Inc. that he was the source of this information, which was also contemporaneously published at his One Child International website.]
March 24: Gibney applies for naturalized citizenship.
September 27: The government sends Gibney a notice suggesting that he redo the portion of his application in which he certifies that he was never either convicted or charged with a crime.
December 2: The citizenship application is denied.
Under the settlement, the government also is releasing “portions of a 2010 letter from U.S. Immigrations and Customs Enforcement indicating that Gibney is not removable because he has not been convicted of a crime.”
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Why did I settle?
Among the minor reasons are the likely years that would have been lost litigating the government’s appeal, and the assurance that by settling, Judge Breyer’s published decision will stay on the books — positively impacting future FOIA law in a case of first impression involving the limits of privacy exemptions for alien files.
My No. 1 reason, however, is that I believe activists and journalists now have all the tools they need in order to complete the pursuit of justice for Gibney and accountability for swimming authorities on two continents.
With sexual assault narratives at the forefront of public conversation, and with new legislation now addressing related problems in U.S. Olympic Committee-sanctioned national sport governing bodies, the time is at hand for legislators such as Teachta Dála Maureen O’Sullivan in Ireland, and Senator Dianne Feinstein and Congresswoman Jackie Speier here, to work together to untangle the Gibney situation — getting him extradited from the U.S. and brought to trial at long last by the Garda’s Director of Public Prosecutions. [TD O’Sullivan has written a guest column for Concussion Inc. that will be published later this week.]
The question raised by Breyer, regarding the American government’s failure to remove Gibney despite the material gaps in his failed citizenship application, is no longer abstract. Feinstein, Speier, and other sympathetic politicians must press to find out why the Department of Homeland Security — which presents itself as vigilant on vetting immigrants in other contexts — is so lax with respect to a notorious global sex criminal. Are the policies and procedures exposed here good ones?
With respect to the U.S. swimming establishment, Judge Breyer, in his November 2, 2016, ruling, summarized the background by stating that “Muchnick … hopes to uncover how American authorities allowed an alleged sexual predator to enter and reside in the United States despite the scandal swirling around him in his native Ireland” and “suspects that the American Swimming Coaches Association [ASCA] greased the wheels for Gibney’s relocation.”
On this point, advocates for victims of abuse in American swimming and the need for fundamental reforms cite the longstanding obstruction of ASCA executive director John Leonard in cases of coach abuse and cover-up similar to the pattern of misconduct by Gibney and others in Ireland.
In the years corresponding to the harboring of Gibney in this country, ASCA programs, such as coaching clinics, have had a growing presence at Swim Ireland, the successor to the Irish Amateur Swimming Association, which was dismantled in the wake of the 1998 Irish government inquiry by a commission chaired by Justice Roderick Murphy.
These circumstances combine to lead critics of the American swimming establishment to suspect credibly that Leonard and ASCA were behind Gibney’s American job offer.
Under the settlement, the Gibney employment offer letter may remain almost entirely redacted: we still might not know who sent the letter or who engineered it. The status of the job offer document will become clear when the government releases additional records to me over the next five days.
One of the intrinsic difficulties of FOIA cases is that only one of the litigating parties, the defendant government agency, knows exactly what is being withheld. In our case, we did get a significant boost when Judge Breyer undertook a private in camera review of the culminating 43 withheld documents under dispute, which totaled a little more than 100 pages.
With the court’s final order last year, I knew that more was being targeted for potential release — but how much more? It seemed unlikely that the job letter would be part of any newly released material, since the judge stated that third-party names and identifying information would remain protected.
Thus, the only real solution to the mystery of this letter could be additional investigation and journalism. We now know substantially more about everything surrounding Gibney’s American job offer. But identifying the letter’s full contents, including who sent and signed it, is a work-in-progress. Anyone, inside ASCA or elsewhere, who might have further information on these details is encouraged to email me at [email protected]. Complete discretion is promised.
ASCA chief Leonard himself has not responded to Concussion Inc.’s queries of any kind since 2012, after I published an email in which he wrote to me, in part, “We do not have an organization that deals directly with children, nor is that part of our purpose in any way, shape or form.”
Shortly we’ll be reprinting stories about the past ASCA employment of Peter Banks, later the chief of Swim Ireland, and now back here again as a coach in Florida; about Leonard’s defense of accused coaches in USA Swimming policy discussions — and his securing of consultant positions for some of them after they were “flagged” as child safety risks; and about ASCA’s heavily promoted legal services for coaches seeking visas to live and work in other countries.
Sincere thanks again to my attorneys: Roy S. Gordet in district court and Thomas R. Burke of Davis Wright Tremaine on the appeal.
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STIPULATION AND AGREEMENT OF COMPROMISE AND SETTLEMENT
Plaintiff, Irvin Muchnick, and Defendant U.S. Department of Homeland Security (“DHS”), hereby enter into this Stipulation and Agreement of Compromise and Settlement (“Stipulation”), as follows:
WHEREAS, on January 27, 2015, Mr. Muchnick, an investigative journalist, filed with the United States Citizenship and Immigration Services (“USCIS”), a subdivision of DHS, a Freedom of Information Act (“FOIA”) request seeking documents related to George Gibney’s immigration to the United States. In the 1990s, Gibney was accused, but not convicted, of multiple counts of sexual assault stemming from his time as a coach of the Irish national swimming team.. Mr. Muchnick sought to know why American authorities let Gibney enter the country and remain here;
WHEREAS, in response to Mr. Muchnick’s FOIA request, USCIS released 4 pages and withheld 98 pages of Mr. Gibney’s Alien File;
WHEREAS, on July 1, 2015, Mr. Muchnick filed this FOIA Action (Muchnick v. DHS, Case No. 15-03060-CRB), challenging the agency’s withholdings;
WHEREAS, on February 3, 2017, the U.S. District Court for the Northern District of California (the Honorable U.S. District Court Judge Charles R. Breyer) granted Mr. Muchnick’s motion for summary judgment, denied DHS’s motion for summary judgment, and ordered DHS to disclose specified portions of Gibney’s Alien File related to Gibney’s alleged crimes and immigration applications. Muchnick v. DHS, 225 F. Supp. 3d 1069, 1078 (N. D. Cal. 2016).
WHEREAS, the Court also acknowledged that DHS properly withheld “identifying information about third parties other than Gibney, as well as Gibney’s past addresses, salary history, A-number, and the like,” see Id.; WHEREAS, DHS timely filed an appeal to the United States Court of Appeals for the Ninth Circuit;
WHEREAS, the parties wish to terminate litigation in Muchnick v. DHS, Case No. 15-03060- CRB, and resolve the issues between them.
IT IS HEREBY AGREED THAT:
1. Within five (5) business days of the parties having jointly filed this agreement with this Court, DHS shall provide the following documents and information to Mr. Thomas R. Burke, Mr. Muchnick’s counsel of record:
- All of the materials ordered disclosed by the district court that are related to Gibney’s visa application;
- Portions of a 2010 letter from U.S. Immigrations and Customs Enforcement indicating that Gibney is not removable because he has not been convicted of a crime; and,
- A portion of the USCIS’s 2010 decision indicating the disposition of Gibney’s application for naturalization.
2. Pursuant to this settlement, DHS has also prepared – and already provided to Mr. Muchnick – a supplement to the Supplemental Vaughn Index that was previously filed in district court.
3. DHS shall pay $70,000.00 directly to Mr. Muchnick’s attorneys in full and complete satisfaction of any and all claims for FOIA attorney’s fees,costs, and expenses in the above-captioned matter that Mr. Muchnick has made, or could make in the future. This payment shall constitute full and final satisfaction of any and all claims Mr. Muchnick has made, or could make in the future, for attorneys’ fees, costs, and litigation expenses in the above-captioned matter, including fees and costs associated with both the litigation before the district court and mediation in the court of appeals, and is inclusive of any interest. The payment shall be for Muchnick’s attorneys fees and out of pocket costs and will be made directly to Muchnick’s attorneys. Payment of this money will be made by check or a wire transfer to the “Davis Wright Tremaine LLP Client Trust Account” within 60 days after the Effective Date of this Stipulation.
4. The parties agree that execution of this Settlement Agreement will constitute full compliance with the district court’s final judgment in this case. By entering into this Settlement Agreement, Mr. Muchnick hereby releases DHS and its successors, the United States of America, and any department, agency, or establishment of the United States, and any officers, employees, agents, successors, or assigns of such department, agency, or establishment, from any claims raised by Mr. Muchnick in this lawsuit and any past, present, or future claims for attorneys’ fees, expenses, or costs in connection with this litigation.
5. This Settlement Agreement is not, is in no way intended to be, and should not be construed as, an admission of liability or fault on the part of the United States, its agencies, components, officials, agents, servants, or employees; and the United States specifically asserts that the district court’s judgment in this case was erroneous. This settlement is entered into by all parties solely for the purpose of compromising disputed claims and avoiding the expenses and risks of further litigation.
6. This Settlement Agreement constitutes the entire agreement between the parties. The parties expressly agree and understand that this Settlement Agreement has been freely and voluntarily entered into by the parties with the advice of counsel, who have explained the legal effect of this Settlement Agreement. The parties further acknowledge that no warranties or representations have been made on any subject other than as set forth in this Settlement Agreement. This Settlement Agreement may not be altered, modified or otherwise changed in any respect except by writing, duly executed by all of the parties or their authorized representatives.
7. In consideration of the payment of attorney fees and costs and the other terms of this Agreement, Mr. Muchnick’s attorneys shall immediately upon execution of this Agreement also execute a Stipulation of Dismissal. The Stipulation of Dismissal shall dismiss the Complaint with prejudice, subject to the terms of this settlement. The fully-executed Stipulation of Dismissal will be filed immediately with the District Court and the District Court shall be requested as part of that Stipulation of Dismissal to expressly retain jurisdiction over the case for 90 days following the dismissal to assure that all parties’ obligations are met and that the terms of the settlement are properly implemented.
8. If any provision of this Stipulation shall be held invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
9. This Stipulation may not be altered, modified or otherwise changed in any respect except in writing, duly executed by all of the parties or their authorized representatives.
10. The Stipulation may be executed in counterparts and is effective on the date by which both parties have executed the Stipulation (“Effective Date”).
SO STIPULATED AND AGREED.