How a noble exercise became a political act

How a noble exercise became a political act
KEVIN CULLEN in Boston
Irish Times
Saturday, March 31, 2012

A federal appeals judge will decide next week whether to overrule a court decision to approve the release of IRA statements made to a Jesuit university in the city

IT HAS BEEN A YEAR since the subpoena from the US attorney’s office arrived on the august campus of Boston College, an annus horribilis for the Jesuit university founded by Irish immigrants a century and a half ago.

Boston College has spent considerable time and resources building a reputation for being not just an academic observer but also an active facilitator of the Northern Ireland peace process. It has hosted, at its own expense, scores of politicians, civil servants, journalists and others from Northern Ireland and the Republic over the years. Its Dublin office, overlooking St Stephen’s Green, frequently welcomed visitors from the North. And among US universities its Irish studies programme was considered the most plugged-in and influential.

It was in that spirit, and with the belief that the Belfast Agreement of 1998 had ushered in a new era of reconciliation and reflection, that Boston College embarked on an ambitious effort to collect the oral histories of paramilitaries on both sides of the divide. Those former paramilitaries recorded their stories with the understanding that they wouldn’t be made public until after they died.

But that subpoena, delivered by US prosecutors acting on behalf of British authorities, has put everything at risk, including Boston College’s well-earned reputation for being a force for good in the peace process. What began as an academic exercise with noble intentions has degenerated into the sort of fingerpointing and recrimination that dogged the North for so long.

US prosecutors want any and all information contained in the oral histories about the 1972 disappearance and murder of Jean McConville, a Belfast widow whose 10 children were scattered after the IRA accused her of informing. At least two of the 26 former IRA members interviewed for the project accused the Sinn Féin leader Gerry Adams of giving the order to kill McConville, a charge Adams categorically denies. A judge has ruled that seven other interviews contain information germane to a PSNI investigation into McConville’s murder and should be turned over.

On Wednesday, a federal appeals court in Boston will hear arguments from the researchers Boston College hired to gather the oral histories.

It is, according to lawyers, the last, best chance to preserve the confidentiality that the former paramilitaries who told their stories believed they had. But it is a legal effort separate and apart from Boston College.

When the US government first demanded access to just two of the oral histories, the university and its researchers, the journalist and author Ed Moloney and the former IRA prisoner turned academic and writer Anthony McIntyre, were unified in their opposition to what they called a cynical government fishing expedition. The idea that an American university was being used as an intelligence or evidence gathering arm of a foreign government was widely considered outrageous.

But there were cracks in that unified front from the beginning. Boston College officials were keen to address the matter quietly, and were miffed when Moloney, the longtime Belfast-based journalist now living in New York, helped the New York Times break the news about the subpoena.

There was an even more fundamental disagreement. Moloney and McIntyre saw the demand for the records as a crass political act, one meant to embarrass if not prosecute Adams after his election to the Dáil. They believed the legal fight against it should be just as political, especially given the role the US played in brokering the Belfast Agreement. Boston College’s lawyers took a different tack, and when they agreed to let a federal judge review some of the records in private, the break between the two sides was irreparable. Moloney and McIntyre accused Boston College of folding without a fight, of abandoning them and those they interviewed without using its considerable resources to stand up to the US justice department and, by extension, the British government.

College officials say they had no choice, given that the initial demand was for the accounts of Brendan Hughes and Dolours Price. Hughes had died in 2008, and so with him did the pledge of confidentiality.

Price, meanwhile, had given an interview to the Irish News in Belfast, saying she had made her allegations against Adams known to Boston College, in effect outing herself.

Even before the college agreed to let US district judge William Young examine the archive in private to determine what should be turned over to authorities, Moloney and McIntyre had concluded the college’s interests were not theirs and mounted their own defence, stressing the danger they said McIntyre and his family, those interviewed and the peace process itself would face if the oral histories were made public.

Slowly but surely, Moloney and McIntyre have attracted a stable of prominent supporters. Earlier this year, McIntyre’s wife, Carrie, an American citizen, spent time in Washington DC, New York and Boston, pleading with politicians and Irish-American groups for backing. The lobbying paid off, nowhere more prominently than with Senator John Kerry, the Massachusetts Democrat who chairs the Senate foreign relations committee. Kerry has asked Secretary of State Hillary Clinton to block the subpoena on the grounds that turning over the records to UK authorities undermines US foreign policy.

Last week, the New York senator Charles Schumer joined the chorus, saying the records grab contravenes “the spirit of the Good Friday Accords . . . Many have taken enormous risks in the name of moving Northern Ireland away from war and towards peace, and requests like this can have the effect of undermining that effort,” Schumer said in a letter to Clinton and the US attorney general, Eric Holder.

Kerry and Schumer say the treaty between the US and UK that authorities have cited in demanding information relevant to a criminal investigation “is not intended to reopen issues addressed in the Belfast Agreement, or to impede any further efforts to resolve conflicts in Northern Ireland”.

The American Civil Liberties Union of Massachusetts has also filed a brief in support of Moloney and McIntyre. Harvey Silverglate, a well-known civil-liberties lawyer who first raised the prospect of the civil liberties union getting involved, is critical of the college. “Boston College’s haphazard and half-hearted defence of the fundamental importance of academic freedom has embarrassed the institution, threatens to harm academics everywhere and, not so incidentally, endangers the lives of people brave enough to reveal, for posterity, important historical truths.”

Silverglate suggests the problem in crafting a unified front is philosophical. He says no one at the college was willing to risk legal sanction, including jail, to defy government intrusion.

Journalists, he said, consider doing such things a badge of honour.

Moloney, in fact, stared down police in Northern Ireland when threatened with jail if he didn’t turn over his notes about a murder more than a decade ago. He refused, and the police eventually backed down.

Jack Dunn, a Boston College spokesman, declined to respond to Silverglate’s charges. He said the college had handed over the material of Hughes and Price because it had no legal recourse but that it was still fighting an order to turn over seven other IRA interviews.

It is unclear whether all this new-found support for Moloney and McIntyre will convince the appeals court to overrule the decision by a district judge to approve the release of the records to the British government.

But it’s their only shot.

Schumer’s concern over BC case

Schumer’s concern over BC case
NEWS & VIEWS
BY RAY O’HANLON
Irish Echo
MARCH 28TH, 2012

Senator Schumer meeting Taoiseach Enda Kenny in Washington last week.

New York’s Senator Charles Schumer has written to Attorney General Eric Holder and Secretary of State Hillary Clinton expressing his concern over the Boston College case and the pursuit by federal prosecutors of archive material stored in the college.

“I write to express my concern regarding the ongoing efforts on behalf of the United Kingdom to obtain documents and recordings from Boston College Oral History Archive on the Troubles in Northern Ireland pursuant to provisions of the US-UK Mutual Legal Assistance Treaty (MLAT),” Schumer wrote.

“There are significant issues of journalistic confidentiality and academic freedom that are called into question as a result of this legal maneuver that make it dubious,” he said in the letter.

“One issue that is implicated in this case is freedom of the press. I have always been a champion of protecting sensitive source material that is gathered by researchers – journalists and academics alike – and I am concerned that this action presents an infringement on that underpinning of the First Amendment,” Schumer wrote.

And he continued in part: “But I am also deeply concerned at the implications this effort has with regard to the peace process. This is a sensitive and delicate process that we should all be mindful to protect.”

Boston College IRA tapes saga: Schumer steps in

Boston College IRA tapes saga: Schumer steps in
The Irish Emigrant

On Thursday Senator Charles E. Schumer (D-New York) waded into the Boston College Belfast Project controversy, when he urged US federal officials to block a subpoena that would divulge the secrets of the college’s confidential oral history project which featured many former IRA operatives.

Senator Schumer said in a letter to US Attorney General Eric Holder and Secretary of State Hillary Clinton that the request from the Police Service of Northern Ireland (PSNI) for tapings raised “significant issues of journalistic confidentiality and academic freedom”. On top of that, he said, the Northern Ireland peace process itself could be put in peril.

The increasingly acrimonious saga has run since last May, when US authorities acting for the PSNI demanded access to 26 interviews given to BC by former IRA members for the project on Northern Ireland’s Troubles, undertaken by former IRA man-turned journalist Anthony McIntyre and Bronx-based journalist Ed Moloney.

In total the project included interviews with around 50 republican and loyalist paramilitaries gathered between 2001 and 2006, under the condition that they would not be released until the interviewees had passed away.

The PSNI investigation is focusing on interviews given by Dolours Price and the late Brendan Hughes, both former IRA members. Both have in the past accused Sinn Fein president Adams – who denies ever being in the IRA – of running a secret death squad which conducted the kidnappings and disappearances of at least nine people during the early 1970s, including mother of 10 Jean McConville.

A Boston court previously ordered that all information from the interviews of Dolours Price be handed over to US authorities, with a final decision on whether or not these are given to the PSNI set to be made next month. Boston College has lodged an appeal against a ruling that it hand over testimony from seven other paramilitaries, which is set to be heard in June.


Boston College IRA tapes: Sen. Schumer has his say
The Irish Emigrant
Open letter from Senator Charles Schumer (D-New York) to The Honorable Eric Holder, Attorney General and The Honorable Hillary Clinton, Secretary of State.

Dear Attorney General Holder and Secretary Clinton:

I write to express my concern regarding the ongoing efforts on behalf of the United Kingdom to obtain documents and recordings from Boston College Oral History Archive on the Troubles in Northern Ireland pursuant to provisions of the US-UK Mutual Legal Assistance Treaty (MLAT). There are significant issues of journalistic confidentiality and academic freedom that are called into question as a result of this legal maneuver that make it dubious.

One issue that is implicated in this case is freedom of the press. I have always been a champion of protecting sensitive source material that is gathered by researchers – journalists and academics alike—and I am concerned that this action presents an infringement on that underpinning of the First Amendment.

But I am also deeply concerned at the implications this effort has with regard to the peace process. The ongoing success of the Good Friday peace process, facilitated and encouraged by the Clinton administration, has changed the course of history in Northern Ireland, and is laying the framework for a functioning civil society where mutual respect and equality is slowly-but-steadily replacing the polarization and violence of the past.

But this is a sensitive and delicate process that we should all be mindful to protect. As you are aware, the actions by the United Kingdom in their request to obtain documents have rightfully caused considerable trepidation among leaders in international affairs including my colleague, Senator Kerry, Chairman of the Senate Foreign Relations committee, as well as among other members of Congress.

There is concern that some former parties to the conflict may perceive the effort by the UK authorities to obtain this information as contravening the spirit of the Good Friday Accords. Many have taken enormous risk in the name of moving Northern Ireland away from war and towards peace, and requests like this can have the effect of undermining that effort. I am proud of the role the United States played to bring about that peace. It would be a terrible mistake if this process were to upset the sensitive balance that has kept the peace and allowed for so much progress in recent years.

During the ratification of this treaty we in the United States Senate made clear that provisions of this treaty, and other with the UK, should not be invoked pursuant to political goals related to Northern Ireland. In particular, the Senate resolution that accompanied the ratification of the extradition treaty in 2007 states that “The Senate understands that the purpose of the treaty is to strengthen law enforcement cooperation between the United States and the United Kingdom by modernizing the extradition process for all serious offences and that the treaty is not intended to reopen issues addressed in the Belfast Agreement, or to impede any further efforts to resolve conflicts in Northern Ireland.”

Given the close relationship we have with the United Kingdom and our deep commitment to a lasting peace in Northern Ireland, I urge you to work with the British Authorities to have this MLAT request withdrawn. Thank you for your attention to this important matter, and if you are in need of any additional information please feel free to contact my Washington office at 202-224-6542.

Sincerely,

Charles E. Schumer, United States Senator

Irish Radio Network: Secretary of State for Northern Ireland Owen Paterson discusses Boston College Case

Secretary of State for Northern Ireland Owen Paterson discusses Boston College Case
Irish Radio Network USA
New York City
Saturday 24 March 2012

The Northern Ireland Secretary of State, Owen Paterson (OP), is asked about Boston College subpoenas during interview with Adrian Flannelly (AF)

Download: Owen%20PatersonMar12.wma

(11:39 topic of Boston College subpoena addressed)

Adrian Flannelly (AF): Now, before we get on to the great number of exciting events and happenings, both historic and cultural, a couple of items: sore points, that are garnering a lot of attention on this side. Last time you were here, we made reference to the Boston papers, the Boston tapes, an Oral History undertaken by Boston College (and) that those tapes were subpoenaed. I had thought at that point that this was something that perhaps you could have some input into by going back to Ireland, perhaps checking with the PSNI, as to why and whatever. And before we even got out of here, it had become a huge international issue involving our highest level of government here. Everybody has been on board with this. Did that come up in any of your meetings in Washington since you came out here?

Owen Paterson (OP): No, I don’t think it did, actually. I’m fully aware it has caused some comment here. The position’s very simple. I’ve been to Boston College. I’ve had meetings with Professor Hachey and I was very enthused by what they were doing. And that’s partly why I went down to North Carolina to see the Civil Rights Archive. I think that there is real merit in oral archives, and getting information in raw form from people who might have been through some pretty dramatic historical moments and to get their personal experiences.

Now, I’m fully aware that these will be very subjective comments, these will be from people who might be elderly, they might’ve been brutal about it, they might (coughs) have some alcoholic problems or whatever, they may not remember very clearly, they may, very seriously, have an axe to grind. But I think it’s worth getting the raw information, I think this… when looking at this… I mean, it’s a useful exercise. So it was very interesting seeing what Boston were doing and it’s similar to what the CAIN archives is down in Belfast and The Linenhall Library and other ones like that.

But we believe very strongly that the police must have complete independence operationally.

Now we had policing devolved, which we strongly supported, a few months before we came to power. So the police report to an elected Justice Minister, David Ford. They report to an elected police board with members of all political parties on it. They’re probably about the most supervised police force in the western world, because there’s a Police Ombudsman, reviewing their day-to-day activities and anyone can complain.

It would be wholly inappropriate for me to interfere in any way in the operational independence of the police or the prosecution service. We believe very strongly in the separation of powers, which is a concept (scoffs) widely understood across the United States.

The first I knew about this move was when I read about it in the papers. We knew absolutely nothing about it.

The PSNI have complete jurisdiction to pursue every line of enquiry. They put in an application through the usual channels. I think it would have been very odd, actually, for the Home Secretary who approved this in, I think almost a routine way, to have interfered. It would have looked odd.

We believe very strongly there can be no amnesty.

We have a real duty to the victims and they have to take paramountcy and I think the police have a duty to follow every possible lead to bring people to justice who may’ve been involved in some terrible crimes. We have an absolute duty as a state to support the law enforcement agencies. But to interfere with their decision making would be quite wrong.

AF: I think, Secretary of State Owen Patterson, that obviously there are people who are looking at this from a very different perspective and seeing that’s kind of a lop-sided view with respect to what is interference and what is, for instance, something that perhaps you, or the powers-that-be in Northern Ireland can do particularly in, I have to go back to the Finucane case again. There is something between those two that’s like: “what’s good for the goose is good for the gander” and it becomes murky from people who have very different viewpoints on both of those issues.

OP: Oh no, I think it’s very important that the UK government is, obviously, completely impartial, and stands back from a lot of the agencies handling the past, which are now in devolved hands. So we’ve been on the record and the Prime Minister’s been very clear and we are very strong supporters of the work of the Historical Enquiries Team, which was set up under the last government. They’re investigating three thousand, two hundred and sixty-eight deaths. Sixty percent of which were, according to David McKittrick’s book, which is widely respected, sixty percent caused by Republican paramilitaries, thirty percent by Loyalist paramilitaries and ten percent by The State.

We inherited a number of enquiries and we’ve been completely straight. The minute they are ready we have gone to Parliament, we’ve published them and we’ve made statements as, I think, was right. So we didn’t flinch from any of this.

We did inherit, and you’ve touched on the Finucane case, we did inherit a commitment from the last government, to have an enquiry into the death of Pat Finucane, which was a perfectly appalling event.

You may have also heard it was a complete stand-off. This was going nowhere.

The last government had made a commitment to have an enquiry but it also passed The Enquiries Act. And the family didn’t accept the terms of The Enquiries Act under which the enquiry would be conducted.

And we were determined to unlock this impasse. I was the first Secretary of State for years to write to Mrs. Finucane and certainly, the first Secretary of State to meet her. I met her a few months after we came to power. And I said we wanted to get to the truth. We did not have hang-ups; whether this was a meeting of public enquiry or whatever…we wanted to get to the truth.

Because the Finucane case has been the subject of what’s possibly the largest police investigation in British history. There are over a million documents in The Stevens Archive. There are nine thousand, two hundred and sixty-five witness statements. There’s sixteen thousand exhibits. And Stevens concluded that there had been collusion by some agents of the British state.

So we discussed this; and discussed it in detail with the Prime Minister. And I think we made a very bold decision: we agreed that he would apologise in person to the family because sadly, getting back to previous comments, many of the witnesses are dead. There are fewer key witnesses alive when we look into the Finucane case than there were around for the Saville Enquiry.

And we made a much, much more extensive archive available to Desmond DeSilva to do a review of all these papers than was available to Saville.

So, we’ve done those two things: We had the family into Downing Street. The Prime Minister apologised in person.

I went to Parliament the next day and made a full apology there and announced that this lawyer of impeccable international reputation, who fought off three assassination attempts when he’s getting sixteen people off death row in Sierra Leone, has complete access to all our papers and is expected to report back in December with the truth. And he may find out what happened and he may be very uncomfortable for us but we think that it’s the quickest, and fastest and most effective way to get to the truth.

As an example, there’s sort of hang-ups about these enquiries as this being the route…if you look at the Billy Wright enquiry, which was conducted by some very senior lawyers with immense professionalism: it cost thirty million pounds, and you have to compare the thirty million pounds for Billy Wright, one death, with the thirty-four million pounds for the three thousand two hundred and sixty-eight deaths, which is the HET’s original budget. It went on twice as longed as planned and yet that enquiry, carried out by scrupulously professional lawyers, didn’t establish how two pistols were smuggled into Europe’s most secure gaol.

And then the other myth which I would like to comment on, is this: that only by having an enquiry can you summon witnesses.

Ian Paisley, Jr. very respected and later, an MP, refused to go and give evidence to The Wright Enquiry. No matter how many legal blandishments he got. He did not go. So on that basis, I think we have made a very bold decision: we made a fulsome apology, and we’re just generally really, really sorry that Mrs. Finucane hasn’t accepted it. Because we would love her to work with DeSilva and all we really want is exactly what she wants. We just want to get to the truth.

AF: Secretary of State Owen Paterson, I fully understand and I accept what you say but I just want to double-back to the Boston College tapes one more time. Obviously, there are many efforts on this side of The Atlantic to get to the US Attorney General to back-off, to withdraw; and some political implications on this side here. You have said that it is really not your place to interfere one way or the other with the Police Service of Northern Ireland. So you would then….would it be correct to say that however this comes out, then that’s the way that it is? If there was an objection from here or something, would you, as Secretary of State for Northern Ireland, would get into it at that stage of the game and say: “Excuse me. We need those tapes. We need to have that evidence.”?

OP: I’ve said emphatically it’s not for me to get involved in any way at all. The Police Service of Northern Ireland must follow every evidential track that comes along in order to try to bring justice to the victims. It’s absolutely not for me to get involved in any way where they go.

Now, as a layman, and I stress very much I’m a layman, I’m not a lawyer, I have no idea what value there is in the information they might get, because as I understand it, these interviews were given voluntarily, they’re not on oath, I don’t think there was a lawyer present, I have absolutely no idea what value they have as evidence.

But we very strictly have to respect the independence of the police in operational matters. We have to respect the independence of the judicial system; either here or in the UK- it is not for me to interfere in the process. As I said, we knew nothing about this. The first I read about it was in the newspapers. And that’s how it should be.

23:26 (AF moves on; topic ends)


PREVIOUSLY: OCTOBER 2011

Adrian Flannelly interviews Secretary of State for Northern Ireland Owen Paterson
Irish Radio Network USA
New York City
Saturday 29 October 2011

The Northern Ireland Secretary of State, Owen Paterson (OP), is asked about Boston College subpoenas during interview with Adrian Flannelly (AF)

Download: SOSNI%20PATERSON.wma

(31:05 topic of Boston College subpoena addressed)

Adrian Flannelly (AF): One last thorny issue because you do bring with you a lot of good news but again there’s obviously a high level of controversy with respect to the investigation into Boston College and it seems like, excuse the pun, all guns blazing, to get the transcripts of what was supposed to have been an oral history of people involved in armed struggle. What is the latest on that?

Owen Paterson (OP): Well, the latest is, I hoped actually to go there and meet Thomas Hachey on Monday, but there was a key vote in the House of Commons, and I didn’t go. I went there, probably about a year ago, and we were enormously impressed by what they were doing.

We… the British Government… We don’t own the past and handling the past, an awful lot of the agencies doing that are devolved … well, we already talked about the HET [Historical Enquiries Team], the Police Ombudsmen reports to David Ford, the Minister for Justice, and all those doing health care, and remedial care, they obviously report in to local ministers.

There is a way in which that the UK Government, I think, can help; there was a debate in the Assembly [Stormont] the other day, and we have been talking to local parties consistently since we gained power and sadly there’s no real consensus.

But I think there is some agreement that by capturing information which is one of the recommendations of Eames-Bradley that some good could come out of that. And we need to capture this information, the story-telling, now, fast, because these people who are going to participate are getting older, their memories are fading… some of them, sadly, are getting ill. Some will die soon.

So we’re… I was very impressed by what Boston College have done and I’ve been to look at other archives, like CAIN archive in Belfast, the Linenhall Library and others, we’ve looked at some possibilities in GB.

But the first we heard about this move was in the press.

The Police Service of Northern Ireland is entirely independent. It’s always been right that the Chief Constable has total operational independence and it would be quite wrong for us to interfere.

So this case is now in the American courts. Now, I’m not a lawyer, not in English law, I haven’t a clue about American law, and it will take its course. I’ve absolutely no idea how it will progress. But it would be quite wrong for us to interfere in the criminal justice process.

This was a decision taken by the PSNI. For my part, I’m a, I’ve just said, I’m a big admirer of all these archives. I think it’s a very useful way of going forward.

But this was absolutely nothing to do with the Northern Ireland Office. This was the PSNI going about its work.

34:16 (AF moves on; topic ends)

ICAN: Problematic Stories: Documenting Conflict during a Peace Process

“Problematic Stories: Documenting Conflict during a Peace Process”
Saturday, 24 March, 2012
NINE TENTHS UNDER – Performing the Peace
Playhouse ICAN – International Culture Arts Network in partnership with School of Creative Arts at Queen’s University, Belfast

Chaired by Declan Keeney, Queen’s University, Belfast and Dr Cahal McLaughlin, The Prisons Memory Archive and University of Ulster. This symposium will focus on the issues of recording memories from the Northern Irish conflict in the context of a peace process. Journalist Ed Moloney will talk about ‘The Belfast Project’, a controversial archive of multiple testimonies from former combatants involved in The Troubles. Dr Cahal McLaughlin will speak about The Prisons Memory Archive and an archive of 175 filmed interviews of people connected to the Maze & Long Kesh Prisons will be shown. Other speakers include filmmaker Alison Millar, and and Claire Hackett, who will also speak about Healing Through Remembering project, and Falls Community Council’s oral history archive, Dúchas.

This is the text of Ed Moloney’s talk.

Boston College Archive

Thank you ICAN for this chance to talk about the Boston College tapes controversy especially since it gives me the opportunity to clear the air about some aspects of this complex affair and to refute some disinformation that has been circulated by people whose interests, I believe, lie in the opposite direction of the Boston archive’s, which was to shed a light on dark places – in our case on our difficult past.

When I began preparing for this talk I asked the organisers what ground they would like me to cover and one answer that came back was why. Why had we created this archive in the first place?

Another way of putting that question is to ask why do oral history at all? This conference has as its inspiration the idea that history is rather like an iceberg, only one-tenth is visible while the vast bulk remains unseen and unheard. So where do we usually get that one-tenth of history from? We get it from two sets of people really. One group of course are the winners: the other, the leaders. Sometimes they’re the same people, but not always. Between them, for reasons that are understandable, they invariably capture and monopolise the narrative of conflicts like ours.

The other story that is rarely told is that of the rank and file and yet it is a story that is just as relevant, often illuminating and frequently more informative. In the Boston College archive that is what we set out to do in a modest way: to give the ordinary activist the opportunity to tell his and her stories, to let the people who really make history have their say – and allow everyone else the opportunity to learn from their stories.

It was an effort to record the story of the five-eighths if you like, a story every bit as valuable and insightful as those written from the commanding heights – and perhaps more objective too, as both leaders and winners have particularly large and sharp axes to grind.

The Troubles, the conflict, the war, whatever you’d like to call it had been the most violent and traumatic period in recent Irish history and I thought it vital that an attempt should be made to capture, before it was too late, the stories of those who had been at the cutting edge of the conflict. We needed to know why otherwise normal, family-loving people would agree to take up arms, use them and even kill for the cause they believed in. What is it that leads people to make such a dramatic change in their lives? A simple question but so hard to answer. The journalist and the amateur historian in me came together to say that we needed to know the answer to this and other important questions not just because it was an intrinsically worthwhile enterprise but because we owed it to all those who came after us.

We all knew the general, academic reasons why the Troubles started and we could all explain and describe the various phases that they went through but what we really didn’t know was how this was all seen at ground level within the republican and loyalist organisations. Nor did we really know much about the dynamics of the various groups that had fought the war. No-one was more aware of that than myself.

As this project was being developed I was working on a book about the history of the IRA with particular emphasis on its journey to the peace process and as I travelled on this road I came to realise how little I had really known about the IRA during all the years I had covered the Troubles as a reporter. And if I was beginning to realise that I knew less than I thought I did about the IRA there was no doubt about how little I knew about the Loyalists. I’d had many dealings with the Ulster Defence Association but the UVF was a different matter entirely. I knew next to nothing about it and to my knowledge only one or two journalists have ever got close to it. Yet it was a key group on the Loyalist side, more violent and responsible for more deaths than the UDA yet essentially it was closed off to the world. These groups had shaped and dominated our lives for decades yet what did we really know about the ways in which they worked? With all these organisations it was difficult to get any deeper than the surface and often a surface that skilled spin doctors had carefully polished and prepared so we would get only the reflected views they wanted us to see.

How these organisations had developed and grown and why, how they worked, how strategies were developed, how personalities affected all this and how these groups interacted with their communities, how they survived against the efforts of the security forces to destroy them were key questions. What were their lives like as members of the IRA and UVF, what were their experiences and what did they make of an existence spent in this way? And at the end of the conflict did they feel it had been worth it?

And then there were some of the key events of the Troubles: the civil rights period, the slide into violence, August 1969, the Falls curfew, internment, the Bloody Sundays and Fridays, the surge in Loyalist violence, the UWC strike, the Shankill Butchers and so. These were the events that shaped and formed the conflict but how were they seen and experienced at the level of the participants? Was it different from the versions we had been fed at the time?

This was all the stuff of real history and it seemed both necessary and important to try to do what could be done to collect it.

Just embarking on a project like this meant that we would ruffle feathers, particularly those of the leadership of the Provisionals who would object to a project such as this because they did not control it or its product. But we did not set out to ruffle feathers even though we knew that was bound to happen. Despite the best efforts of some to suggest otherwise this project was approached in a very scientific, scholarly and value-free fashion.

The idea of the archive had various stimuli. One was the Linenhall Library’s Political Collection, something that had always fascinated me and which I had long admired. The very first article I had published in Ireland was about the collection. I admired the extraordinary foresight that had led to its creation and throughout my career in journalism I always made sure that the Linenhall got copies of important documents that came my way. That, after all, is one of the ways in which history is preserved and recorded, one donated document at a time.

The second influence, to which I had been exposed in the late 1990’s, was the Irish Government’s Bureau of Military History’s archive on the struggle for Irish Independence between 1913 and 1921. It had been created in 1947 with the aim of recording the experiences of those who had fought on the republican side during the Anglo-Irish War, from the creation of the Irish Volunteer movement onwards.

What was intriguing about the archive was its size, some 1700 individual interviews, mostly noted rather than taped and conducted with the rank and file of the Volunteers, the IRA, Cumann na mBan, the Irish Citizens Army, the IRB and SInn Fein. Although confined to just one side in the conflict what struck me about this archive is that it gave ordinary activists the chance to tell their stories.

One key point about the Bureau of Military History archive is that the Irish government could afford to wait a quarter of a century before beginning it. The period it studied encompassed just seven or eight years and those involved in 1913 say, would likely still be alive and their memories still reasonably reliable by 1947. Our conflict lasted some 30 or 40 years. People who were in the IRA or UVF in 1966 or 1969 would almost certainly be dead if researchers were to wait until 2030 before beginning their work. And since it was especially important to talk to the older, founder members of the various groups a certain urgency drove the impulse behind this idea.

But it was of course the Good Friday Agreement that really made the archive a viable proposition. Although there was still much territory to cover before the agreement could be said to be set in concrete it was obvious that the war was over when this idea began to take more tangible shape. By 2000 we’d had the Omagh bombing and the coalition of dissident groups responsible for that incident, the Real IRA, Continuity and the INLA, had broken apart and were either on or heading towards their own ceasefires or in serious decline. With the war ending or about to end the time was right to to start collecting first-hand accounts.

So it was, serendipitously, that towards the end of 2000 or the beginning of 2001, I was approached by Paul Bew, politics professor at QUB and a friend, who had just spent some time as a visiting lecturer at Boston College. While there the librarian, Bob O’Neill mentioned that the college was interested in beginning a collection, perhaps something like that at the Linenhall, to mark the ending of the Troubles. Paul asked if I had any ideas and after some thought I came back with the suggestion of the oral history archive.

The concept forming in my mind was more ambitious than the college was then prepared to take on. I wanted the IRA and other republican groups to form one part obviously, but also the Loyalist paramilitaries and the police, then the RUC. In time it might even be possible, I imagined, to extend the archive to the British Army, or at least to the UDR element of it.

But that would cost a lot of money. BC wanted to see how the first part dealing with Republicans went before committing to anything more ambitious or expensive but eventually we were able to expand the project to include the Ulster Volunteer Force and, briefly, the RUC. The UVF part of the project survived until the end but not so the RUC. Unfortunately the researcher that was provided turned out not to be fit for purpose.

The Republican part of the archive was first to get started quite simply because it was easier to do. And we had an interviewer, eminently well qualified, ready to go. Anthony McIntyre was a PhD student of Paul Bew’s (as incidentally was the UVF researcher, Wilson McArthur), his thesis was on the early development of the IRA and he had spent long enough in the IRA to know his way around.

Recently his detractors have decried him as a dissident but that is neither fair nor true. I think it would be more accurate to describe him as a dissenter, an apostate. A dissident wants the violence to continue but anyone who knows Mackers will know that his opposition to resuming violence is both genuine and deeply rooted. He was and is a classic and at times, I have to say, profoundly irritating iconoclast – although I say that as a friend – and knowing him as well as I do now I have often wondered how he was able to stay in any organisation much less a group like the IRA. He is a critic of the Adams leadership for sure. He supports the peace while critiquing the process but he’s also a critic of just about everybody else on the Irish political stage and that includes all the dissident groups. And that same iconoclastic set of mind made him, in my view, an asset. After all iconoclasts question everyone and everything they come across – and they rarely tolerate nonsense.

We had decided at an early stage that this project would be best handled by academically qualified former members or associates of the groups being studied. Not only would interviewees be more likely to trust them but they would know their way around a terrain that would be foreign and hostile to the conventional academic interviewer. They would also have well refined bullshit detectors not available to such people.

The security of the project was the number one issue on our minds when we set about preparing the ground. The threat came from two directions. The first was the republican movement. We did not seek nor did we expect to get the co-operation of the Provo leadership for an enterprise like this and I don’t think I need to go into detail about the reasons why.

If they were to co-operate then as sure as night followed day we would be fed a stream of interviewees ready to swear of a stack of bibles that Gerry had never been near the IRA in his life and nor had Martin (and remember that in 2000, Martin was also denying any IRA history. Only when the Bloody Sunday Tribunal threatened to challenge this, did his memory make a remarkable recovery). I’d had a stomach-full of this sort of manipulation as a journalist and the idea of pursuing this enterprise with the co-operation of their leadership could only have rendered it a piece of political vaudeville, as far removed from a serious analysis of the IRA as one could get.

At this point, I was nearing the mid-point in my research for A Secret History of the IRA and I had learned a number of valuable lessons. One was that there were lots of secrets that the Provo establishment would prefer to keep very closely hidden; another was that they would severely punish any members who betrayed those secrets. And I also knew very well that they would be ever on the alert and lookout for any chance that this might happen. Accordingly, I kept electronic communication to a minimum during the preparatory period and when we actually got started all emails and similarly transmitted documents were encrypted. A leak could have been disastrous for the researcher and the interviewees.

The second threat was from the security authorities but at that point it seemed less threatening than it does now. Prisoners were beginning to be released under the terms of the GFA and it was a fair bet that the final political settlement would, in return for decommissioning, include an amnesty of some sort. Indeed one was negotiated at Weston Park in 2005 but then, for reasons that confound me, it was torpedoed by Sinn Fein, apparently because it would close off their ability to demand inquiries into security force excesses. Their reluctance to let that go may, with hindsight, be judged one of the most foolish mistakes of the peace process.

Nonetheless, we were acutely aware that the interviews needed to be protected from the prying eyes of policemen and prosecutors and it was the first item in our negotiations with Boston College. I can go into all the details later about the various contracts that were drawn up and how they were interpreted and why it was that we believed that the contracts echoed Boston College’s assurances to us that the interviews were legally safe.

When we began we received an assurance from the librarian at Boston College that no interviews would be allowed to be deposited there if there was any risk attached to them and our clear understanding of that was that we were talking about the risk of the interviews falling into the hands of the RUC or some other section of the security apparatus. The project went ahead on that basis. It now appears from affidavits presented by Boston College to the courts over the last year or so that their private definition of that risk was very different from what we were told; that what they really meant was that they judged the possibility of such a thing happening as very low, based on conversations they had had with figures in NI public life. But that is not what we were told. Had we been told that then the project would have been stillborn.

At this point it is important to remember that the UVF was also involved in the Boston College project. They joined two years after the republican collection began. The UVF’s decision to take part followed meetings between their representatives and Boston College here in Belfast at which they asked for and were given specific assurances that the recently created PSNI would not be able to access any of their interviews.

In the case of the republican part of the archive, the dealings were between myself, Anthony McIntyre and Boston College. Neither the IRA nor Sinn Fein were involved. But in the UVF’s case their representatives did take part and knowing them as we do, I think it is beyond doubt that the UVF as a corporate entity would never have agreed to participate in such a project as this in the absence of such assurances.

We knew, or thought we knew who we were dealing with. Boston College is one of North America’s elite universities, with a well established name for involvement in Irish studies and a track record of participation in cross-community programmes intended to assist the peace process. They were the good guys, the reputable leaders of a distinguished school of learning, or so we believed, and we trusted them. When they gave us their word, we were inclined to believe them.

With the benefit of hindsight it is difficult not to conclude that in an eagerness to obtain an archive of considerable value and rarity, BC provided guarantees to us that they could not stand over, then took their eye off the ball. BC now says it was aware of the legal dangers all along and claim to have told us repeatedly but if that was true then why did BC allow the book, VFTG and the associated TV documentary, to be produced. BC’s legal department, after all, was intimately involved in the negotiations with the publisher, the TV producers and of course myself. These were the same people who drew up and approved the project’s contracts. If there was a risk that they were aware of why didn’t they raise it at this crucial point? And I can tell you that if they had told us of the risk then, neither myself nor Anthony McIntyre would ever have countenanced publication.

Sadly Boston College’s behaviour since the subpoenas were served has been nothing short of disgraceful. Although responsible for the guarantees that allowed the project to happen, BC then tried to put the blame on ourselves, that is myself and the researchers. That was a classic example of what I call Abu Ghraib syndrome, of the powerful dumping on the powerless, just as Bush, Cheney, Rumsfeld and their military commanders allowed army corporals and privates to carry the can for torture in Iraq so BC had behaved in the same way towards us.

My own suspicion is that if I had not leaked the story that subpoenas had been served on the archive to the New York Times in May 2011, BC would have quietly handed over the interviews. That’s a suspicion but what I do know for sure is that we were supposed to have been kept out of the circle of knowledge about the subpoenas and if there was such a plan and it had gone ahead, the first we would have known about them would be when the PSNI acted upon information in the interviews. To compound their disgraceful failure to stand up for its research project, the researchers and the interviewees, BC has refused to join with us in appealing the lower court’s judgement in favour of the PSNI.

Let us be in no doubt here about the gravity of Boston College’s failure to make a stand on this matter. People could well be killed. My researcher is at risk and so are the people he interviewed. All are at risk of being treated as informers by their former comrades. Some could end up in jail or at least face the possibility of criminal charges. When Boston College undertook this project they gave us and the interviewees a solemn promise that their confidentiality would be protected until death. Now some of them face the possibility of death and the betrayal of their confidentiality. Shame on them.

The people here at ICAN also asked that I address another question: what regrets do I have and what lessons can be learned? The regret I have goes beyond the decision to involve Boston College in this project for I have learned in the last few months that universities and colleges in the US, and for all I know on this side of the Atlantic as well, are almost universal in their institutional cowardice and cravenness.

It wasn’t just the choice of BC that was wrong but a wider mistake, and this is the lesson for others who follow in our footsteps. The mistake that we made, that I made, was to surrender control of the product, to let a second party take possession of the tapes and transcripts. Once we did that we put ourselves at the mercy of people who did not share our concern for the wellbeing of the interviewees and, when it came to the bit, were troubled only about their selfish, corporate interests.

The project that we undertook was and is important and I hope others try to replicate it but my advice would be to maintain control of the product even if that makes funding more difficult.

I fear however that the impact of the HET/PSNI’s effort to obtain these interviews will have far-reaching, negative implications not just for efforts to tell the full story of the Troubles but for similar research everywhere. We will fight these subpoenas with every breath in our bodies and we will also resist to the utmost any effort to produce criminal charges if they are handed over. The HET’s action here is not only wrong and hypocritical – contrast this investigation into the current handling of the Pat Finucane case for an example of what I mean – but the idea of pursuing participants in a conflict after a difficult peace has been reached is about as wrong-headed, stupid and counter productive as it is possible to be.

In the end the most insidious aspect of the HET/PSNI offensive against the Boston College is that it will effectively close down any effort to tell the story of the Troubles from the point of view of the foot soldiers. In that sense the HET is staking a claim on behalf of two groups that only they will be permitted to tell the story of the Troubles. One is the State through its security agencies and the other is the leaders who survived the war and now prosper in the peace. More than any other reason that is why their action, and the silence from those who should not be silent about this affair, should be condemned and resisted with all the force we can muster.

Thank you.

Ed Moloney is an Irish journalist and author. He worked for the Hibernia magazine and Magill before going on to serve as Northern Ireland editor for The Irish Times and subsequently for the Sunday Tribune. He is currently living and working in New York. His first book, Paisley, was a biography of Unionist leader Ian Paisley, co-authored by Andy Pollak and published in 1986. In 2002, he published a bestselling history of the Provisional IRA, A Secret History of the IRA. This was followed, in 2008, by a new edition of Paisley: From Demagogue to Democrat. In March 2010, his book Voices from the Grave was published, featured interviews with Brendan Hughes and David Ervine, complied by researchers for Boston College. A documentary based on the book won the best television documentary prize at the annual Irish Film and Television Awards (IFTAs) in February 2011. Moloney was voted Irish Journalist of the Year in 1999. He also blogs at thebrokenelbow.com

Moloney and McIntyre thank Senator Schumer

“We would like to warmly thank Senator Charles Schumer for his brave and principled letter to Attorney General Eric Holder and Secretary of State Hillary Clinton urging them to work with the British government to have the subpoenas served against Boston College’s oral history archive withdrawn (see below).

Senator Schumer is is right to point out that if interviews and transcripts about the Troubles in Northern Ireland are handed over to the British this will undermine journalistic and academic guarantees of free speech provided by the First Amendment and will also serve to damage the Good Friday Agreement in Northern Ireland which ushered in an end to the conflict there.

In particular we welcome Senator Schumer’s observation that in dealing with legal co-operation with the UK, the US Senate specifically requested that nothing be done that would or could “reopen issues” addressed in the Good Friday Agreement. In other words the issue of responsibility for actions in the past should remain in the past.

We look forward to our appeal hearing in Boston on April 4th, confident that with the support of figures like Senator Schumer, his colleague Senator John Kerry, other members of Congress and countless supporters throughout the United States, common sense will triumph and we will prevail against this foolish and counterproductive action by the British government.”

- STATEMENT FROM ED MOLONEY & ANTHONY McINTYRE

March 22, 2012

The Honorable Eric Holder
Attorney General
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

The Honorable Hillary Clinton Secretary of State
U.S. Department of State
2201 C Street NW
Washington, DC 20520

Dear Attorney General Holder and Secretary Clinton:

I write to express my concern regarding the ongoing efforts on behalf of the United Kingdom to obtain documents and recordings from Boston College Oral History Archive on the Troubles in Northern Ireland pursuant to provisions of the US-UK Mutual Legal Assistance Treaty (MLAT). There are significant issues of journalistic confidentiality and academic freedom that are called into question as a result of this legal maneuver that make it dubious.

One issue that is implicated in this case is freedom of the press. I have always been a champion of protecting sensitive source material that is gathered by researchers – journalists and academics alike—and I am concerned that this action presents an infringement on that underpinning of the First Amendment.

But I am also deeply concerned at the implications this effort has with regard to the peace process. The ongoing success of the Good Friday peace process, facilitated and encouraged by the Clinton administration, has changed the course of history in Northern Ireland, and is laying the framework for a functioning civil society where mutual respect and equality is slowly-but-steadily replacing the polarization and violence of the past.

But this is a sensitive and delicate process that we should all be mindful to protect. As you are aware, the actions by the United Kingdom in their request to obtain documents have rightfully caused considerable trepidation among leaders in international affairs including my colleague, Senator Kerry, Chairman of the Senate Foreign Relations committee, as well as among other members of Congress. There is concern that some former parties to the conflict may perceive the effort by the UK authorities to obtain this information as contravening the spirit of the Good Friday Accords. Many have taken enormous risk in the name of moving Northern Ireland away from war and towards peace, and requests like this can have the effect of undermining that effort. I am proud of the role the United States played to bring about that peace. It would be a terrible mistake if this process were to upset the sensitive balance that has kept the peace and allowed for so much progress in recent years.

During the ratification of this treaty we in the United States Senate made clear that provisions of this treaty, and other with the UK, should not be invoked pursuant to political goals related to Northern Ireland. In particular, the Senate resolution that accompanied the ratification of the extradition treaty in 2007 states that “The Senate understands that the purpose of the treaty is to strengthen law enforcement cooperation between the United States and the United Kingdom by modernizing the extradition process for all serious offences and that the treaty is not intended to reopen issues addressed in the Belfast Agreement, or to impede any further efforts to resolve conflicts in Northern Ireland.”

Given the close relationship we have with the United Kingdom and our deep commitment to a lasting peace in Northern Ireland, I urge you to work with the British Authorities to have this MLAT request withdrawn. Thank you for your attention to this important matter, and if you are in need of any additional information please feel free to contact my Washington office at 202-224-6542.

Sincerely,

Charles E. Schumer
United States Senator

Boston College Faculty Call for an Investigation

Boston College Faculty Call for an Investigation
(Boston College Sleeps Through the Whole Thing)
Chris Bray

An online petition created by the Boston College chapter of the AAUP gives you a chance to join their call for an independent investigation of the Belfast Project.

The petition also gives outsiders a window onto the institutional culture of the university: The chapter took a unanimous vote, on Feb. 27, to ask President William P. Leahy and the board of trustees for an investigation, but they decided to seek wider support when the president and the trustees didn’t bother to respond to their letter.

Letter from the faculty? Ah, just toss it into the round file. What’s for lunch?

The place is run like a duchy. That’s why bad decisions aren’t debated and corrected. It isn’t working.

View and Sign Boston College Chapter, American Association of University Professors Petition: Boston College: Investigate Belfast Project

Boston College, the Belfast Project and the Academy of Betrayal: Protection of Academic Freedom Until It Becomes Inconvenient

Boston College, the Belfast Project and the Academy of Betrayal: Protection of Academic Freedom Until It Becomes Inconvenient
Harvey A. Silverglate and Daniel Schwartz
Huffington Post
03/23/2012

The “Ivory Tower” has come to represent, to many, the aloofness that has increasingly infected the academy. But, properly understood, the metaphor suggests a fortification, a protection that allows one ensconced within it to follow his intellect and conscience rather than the temptations of popular and governmental approval, not to mention the ever-present corruptions dangled by lucre. But over the course of the last year, Boston College has shown immense institutional cowardice and abrogated its responsibility as a protector of academic freedom. The highly regarded Jesuit liberal arts college has been so betrayed by its administration, and in turn has so betrayed its most fundamental mission, that it has been left to the ACLU of Massachusetts to step-up in a battle for which those cowering behind the ivy walls have all but thrown in the towel before ever truly engaging in the fight.

The remarkable imbroglio began when, in May of 2011, the United States Department of Justice subpoenaed a number of academic documents solemnly entrusted to BC’s possession, protection and care. The American governmental demand for the production of the documents arose out of a Northern Irish criminal investigation; rather than fight the subpoenas tooth and nail, as was its clear moral and academic obligation, Boston College’s haphazard and half-hearted defense of the fundamental importance of academic freedom has embarrassed the institution, threatens to harm academics everywhere and, not so incidentally, endangers the lives of people brave enough to reveal, for posterity, important historical truths.

In 2001, two scholars, former IRA member Anthony McIntyre and journalist Ed Moloney, founded “The Belfast Project”, a groundbreaking oral history undertaking centered at Boston College and meant to chronicle “The Troubles” in Northern Ireland, a decades-long bloody struggle which defined generations of Northern Irish and English alike. By 2001 the fighting had slowed considerably, and in July of 2005 the Irish Republican Army council announced that it would no longer pursue violence but rather would seek to achieve its goals through political processes. Sensing the changing times, Moloney and McIntyre created a ground-level chronicle of the decades-long struggle, and sought frank and truthful testimonies from all parties involved–without judgment, and without fear of repercussions. In order to solicit truthful narratives, Moloney and McIntyre–with the express backing of Boston College–promised their interview subjects that the testimonies they gave would be confidential until death.

But a Police Service of Northern Ireland (PSNI) investigation would put that confidentiality to the acid test. In a case that has  been duly  chronicled  in  the press  here and abroad, a woman named Dolours Price–a Belfast project interviewee and former IRA member–was reported by an Irish newspaper to have admitted involvement in the still-unsolved murder of Jean McConville, a Belfast mother of ten apparently slain as a suspected informant in 1972. (McConville’s remains were finally discovered in 2003.) British authorities–in conjunction with the PSNI investigation–have requested that the United States Department of Justice subpoena Dolours Price’s “Belfast Project” recordings and interview materials. The United States has a “Mutual Legal Assistance Treaty (MLAT)” with Britain, and so the DOJ complied; subpoenas were issued, and Boston College initially sought to “quash” them, seemingly taking the stance that the dictates of academic freedom, protected by the First Amendment to the Constitution, trump the needs of a forty year old police investigation in another country. The case ended up in a Federal District Court in Massachusetts before Judge William Young. Tellingly, Judge Young started off on the wrong foot when he denied the scholars, McIntyre and Moloney, an official role as “intervenors” in the litigation because, in the judge’s either naïve or cynical view, “Boston College adequately represents any potential interests claimed by the Intervenors.” Given Boston College’s weak defense of the scholars’ and its own academic freedom, that determination would become laughable.

The central question before the court turned out to be whether the guarantee of confidentiality provided by the academicians to the interviewees was due any legal protection. News reporters have some limited degree of privilege when it comes to their guarantees of confidentiality extended to putatively confidential sources, lest there be a “chilling effect” on the vital work that reporters do. This partial privilege has come to exist despite Branzburg v Hayes, the landmark 1972 Supreme Court case that seemed to reject any “reporter’s privilege” lodged within the First Amendment. But some sort of reporter’s privilege did survive, because the most significant opinion to emerge from that case was not Justice ByronWhite’s majority opinion, but rather Justice Lewis Powell’s very short concurrence, in which he “emphasize[s] what seems…to be the limited nature of the Court’s holding” and assures that there be a “proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.” That balancing test, mandated by the justice who cast the crucial fifth vote, has led lower court judges and even prosecutors to act with some admirable restraint before forcing reporters to betray sources where prosecutors might not need the information or might have other sources from which to draw the information they need.

This seemingly thin reed to which newspapers and news reporters have clung for four decades now has enabled considerable resistance by those subpoenaed as well as a surprisingly sympathetic response by many courts. As Judge Young himself would state in his eventual decision, there are three thresholds which traditionally need to be met in order to compel a reporter to give up confidential information: The information sought needs to be demonstrably relevant to the investigation; the materials cannot be “readily available from a less sensitive source;” and the inquiry has to be “non-frivolous.” Clearly the Northern Irish murder investigation represented a “non-frivolous” inquiry, even if it might have been undertaken for purely political or other mischievous reasons; but surely the other two planks were places and principles where Boston College could have been expected to stand and fight.

However, BC instead demonstrated little interest in, and inadequate institutional courage to undertake, a full-throated defense of an “academician’s privilege.” As Judge Young would report in his eventual decision, “in its first motion to quash, Boston College proposed an in camera inspection of the Dolours Price interviews.” In other words, Boston College’s very first action in response to the subpoena for privileged academic material was not to fight tooth and nail, but rather to turn the documents over to the Court and allow the judge to scrutinize them. The thinking often goes that if a judge analyzes the information in secret (“in camera” means “in a chamber,” as in the Judge’s private chambers), he can balance the interests of the investigation on the one hand, and the interests of preventing a “chilling effect” on the other. Judge Young granted Boston College’s request, and so Boston College turned over the Dolours Price tapes to the Court for a determination of their relevance. In one of the great ironies of the case, the government actually argued against this disclosure of the tapes or transcripts to the court, stating that on jurisdictional grounds the court did not have the right to undertake such a review.

But the surrender of the transcripts to the judge so early in the litigation had a profound influence on the ultimate outcome of the case in the lower court. By turning over the tapes right away, Boston College deprived itself of the option of engaging in a celebrated Catholic tradition that extends as far back as Thomas More: civil disobedience to unjust secular authority that seeks to infringe on age-old privileges of civil and religious society. Following a negative ruling, Boston College could have refused to turn over the tapes, arguing that despite what the government may say, academic privilege matters and must be given hearty protection as a matter not only of law, but of conscience. No Boston College administrator showed even an ounce of the bravery of newsmen and women who have marched into prison rather than give up their confidential sources. Reporters have endured prison sentences not merely to protect their sources and their own work, but to ensure the vitality of their profession; the academicians and clerics (BC has, after all, both secular and religious obligations) had the opportunity to do the same, and they ran from it.

Nor did Boston College utilize all of the robust institutional resources at its disposal in the fight. BC has, after all, a top-notch law school where reside any number of constitutional law professors who would surely have been interested in working on such a consequential constitutional case, not to mention hundreds of law students who would have loved the opportunity to dive into a high-profile and very consequential defense of the First Amendment protection of academic freedom. There is no indication that Boston College’s administration approached its trustees in order to garner further support, or made some other gesture to send a message to both the Department of Justice and Judge Young that it was hunkering down for a pitched battle to defend principles vital to the church, to the academy, and more broadly to civil society. (The institution’s lack of full-bore investment in the case seemed all-the-more surreal when part of the case was argued on Boston College’s campus , in conjunction with an earlier agreement by Judge Young to bring actual cases to law school campuses).

It was little surprise, perhaps, that on December 16th, 2011, Judge Young ruled against Boston College, and ordered the school to turn over the Dolours Price tapes to the government , for transmission to the Brits and then to Northern Ireland. Furthermore, he required that BC hand over to the court additional interview materials related to the McConville murder for in camera review so the court might “enter such further orders as justice may require.” As we have argued elsewhere  when discussing this case, Judge Young’s decision was demonstrably flawed; it paid lip service to the existence of an academic’s privilege somewhat akin to that of a reporter, but then slipped too quickly, and without significant evidence, to the facile conclusion that the transcripts were essential to the investigation and contained information that could not be gleaned elsewhere. Young did not describe what investigative efforts had been undertaken by the Police Service of Northern Ireland; nor did he show that other resources for finding the privileged information had been exhausted. Rather, he concentrated the majority of his decision on the importance of the Mutual Legal Assistance Treaty with Great Britain, and tersely dispatched with the question of academic freedom in a few short pages. One had the distinct feeling that the judge was prepared to pay lip service to the existence and importance of an academic’s privilege, but that he knew from the start where he wanted the materials to go in the end.

Boston College did not immediately appeal the decision; rather, it was left to McIntyre and Moloney, to whom Judge Young had earlier denied entry into the litigation, to themselves appeal the ruling. The scholars indeed appealed and sought a stay of Judge Young’s turnover order – on the ground that the disclosure of the Dolours Price interviews could place them – the interviewers – in actual physical danger. Should the interviews get out, McIntyre and Moloney fear they will be viewed as collaborators, and the sentence for collaboration has often been death. The Court of Appeals, demonstrating the non-frivolous, indeed profound, nature of McIntrye’s and Moloney’s objections to what Judge Young did, stayed the turnover order and will take up the matter in April. One has to assume considerable chagrin on BC’s part, since it had earlier announced that it would not appeal Young’s initial turnover order “because the court both accepted Boston College’s argument that government subpoenas for confidential academic materials requires heightened scrutiny, and agreed to review the materials in camera.”

Adding insult to injury, on January 20th Judge Young demanded that, should Moloney and McIntyre fail in their appeal, Boston College must immediately turn over, additionally, the materials from seven more interviewees. Judge Young’s haste demonstrated that he was inclined to run roughshod over BC and the scholars, giving them little time to catch their breath. The scholars proved more fleet-footed than BC; indeed, it took Boston College a full month to decide to appeal Judge Young’s second ruling; they have not appealed, and reportedly do not intend to appeal, Judge Young’s first ruling regarding the Dolours Price interviews. Indeed, Boston College has indicated that the decision to turn over Dolours Price’s interviews to the Department of Justice–at the request of the British and in conjunction with a forty-year old unsolved murder in Northern Ireland and with no indication in the decision that there was absolutely no other way to get at the information in her interviews–is perfectly fine with them. Indeed, as researcher-intervenor Ed Moloney put it on a website  dedicated to the case, Boston College’s appeal of the release of the seven additional interviews, evading the main event, is nothing more than a “sham fight at Scarva .”

But while Boston College may have abrogated its duty to protect academic freedom, the two intrepid researchers, and, as of February 27th, the ACLU of Massachusetts, have stepped into the fight. The ACLUM filed a powerfully-argued friend-of-the-court brief  that makes the points BC should have made. [Full disclosure: Author Silverglate sits on the Legal Committee of the ACLU of Massachusetts and cast a vote in favor of ACLUM's filing its brief in the Boston College case.] The scholars are also seeking other, more political avenues of redress: they have secured the support of Massachusetts Senator John Kerry, who in a public letter  addressed to Secretary of State Hillary Clinton, urges Secretary Clinton to “work with the British authorities to reconsider the path they have chosen and revoke their request” for the transcripts.

But despite the intervention of the senior senator from Massachusetts, Moloney and McIntyre face an uphill battle. The already difficult task of overruling a lower court decision was compounded by Boston College’s lack of any demonstrable reluctance (and spine) to turn the transcripts over to the authorities. Moreover, as the scholars were initially denied (by Judge Young) the right evento defend in court their pledges of confidentiality, the first hurdle will be for the Court of Appeals to grant them the “standing” to litigate against the Department of Justice in this matter. The second hurdle, of course, will be their ability to win the privilege argument on its merits once they’ve earned the right to make it.

But the ACLUM is a formidable ally, and their friend-of-the-court brief makes a number of striking but perfectly logical and obvious points. One particularly powerful argument is that to turn over the documents to the British government without a clearer indication that doing so was a last resort would represent a disturbing indication “that the Constitution surrenders US citizens to foreign powers with fewer safeguards than are afforded to citizens subpoenaed by domestic law enforcement agencies.” In other words, they argue, Northern Ireland may not guarantee certain protections of speech, but the United States does, and US citizens should continue to retain those protections even when the infringer is a foreign power acting through the instrumentality of the U.S. Department of Justice via a treaty.

While it is heartening that the ACLUM has seen fit to enter the litigation, the sad truth is that were Boston College more principled, the help might not have been necessary. There are a number of possible theories as to why BC has abdicated such a fundamental responsibility so logically reposed in the academy. Maybe the principles of academic freedom were not deemed worth the cost of a real legal battle. Or perhaps BC feared that a protracted legal battle would endanger its federal dollars, funds which BC President William P Leahy declares in his book, Adapting to America, have been essential to “accommodate[ing] postwar demand for education.” But no matter the reason, members of the BC community should be concerned about what the administrators of their institution have done, or failed to do.

 

 

Harvey Silverglate is a Cambridge, MA, civil liberties and criminal defense attorney and Chairman and co-founder of the Foundation for Individual Rights in Education (FIRE). He is the co-author of The Shadow University: The Betrayal of Liberty on America’s Campuses (HarperPerennial, 1999). He sits on the Legal Committee of the ACLU of Massachusetts and cast a vote in favor of ACLUM’s filing its brief in the Boston College case. Daniel R Schwartz is a FIRE Program Associate and a Brandeis University doctoral candidate focusing on Russian History who will be attending law school in the fall. Follow Harvey Silverglate on twitter @3Felonies, and Daniel @DanielRSchwartz

The People Who Ratified the US-UK MLAT Think the DOJ Is Wrong About What the Treaty Means

The People Who Ratified the US-UK MLAT Think the DOJ Is Wrong About What the Treaty Means
Chris Bray
FRIDAY, MARCH 23, 2012

At the bottom of this post, a strong letter sent yesterday by Senator Charles Schumer to Secretary of State Hillary Clinton and Attorney General Eric “La La La I Can’t Hear You” Holder regarding the Belfast Project subpoenas served on Boston College. Schumer makes his position plain, asking Clinton and Holder to “work with the British authorities to have this MLAT request withdrawn.” Read the whole thing, but one paragraph in particular wages a direct assault on the arguments made in court by the U.S. Attorney’s Office for the District of Massachusetts:

During the ratification of this treaty we in the United States Senate made clear that provisions of this treaty, and other[s] with the UK, should not be invoked pursuant to political goals related to Northern Ireland. In particular, the Senate resolution that accompanied the ratification of the extradition treaty in 2007 states that, “The Senate understand that the purpose of the treaty is to strengthen law enforcement cooperation between the United States and the [U]nited Kingdom by modernizing the extradition process for all serious offenses and that the treaty is not intended to reopen issues addressed in the Belfast Agreement, or to impede any further efforts to resolve conflicts in Northern Ireland.

Schumer has framed the question widely, addressing his concerns about the mutual legal assistance treaty between the US and the UK with a quote from the Senate resolution regarding a different treaty. But his argument is still specifically sound: A few years ago, the Senate ratified a treaty between these two nations regarding a matter of international cooperation in internal criminal justice matters. Doing so, they make explicit their intent to keep “issues addressed in the Belfast Agreement” — like the past activities of paramilitaries that fought during the Troubles in Northern Ireland — out of the bucket of things for which the treaty would assure police cooperation. So why would the same United States Senate ratify a different treaty, just a few years earlier, with an entirely different intent?

Bottom line: Treaties assuring criminal justice cooperation between the US and the UK were not created to assure cooperation in legal efforts to relitigate the political conflict in Northern Ireland. Here it is from a member of the Senate — that is, from another one of the political officials who participated in the vote to accept this treaty on behalf of the United States government and give it legal weight. The PSNI, and the DOJ, are using a treaty to do something it wasn’t supposed to do. Period. This claim can no longer be said, with anything approaching honesty, to be in dispute.

So let’s revisit the amicus brief filed in the same appellate case by the ACLU of Massachusetts, and the government brief in the case filed last week with the First Circuit. Look at pg. 7 of the amicus brief: The ACLUM argues that a deferential approach to requests for mutual legal assistance, accompanied by the DOJ’s “desired straightjacket on judicial review,” threatens to turn US law enforcement into a political arm of foreign governments. See their list of examples for more, but the point is that reflexive and unchecked international legal cooperation opens the door to the policing of dissent: Sure, we’ll hunt down that information on your dissidents.

This unexamined governmental willingness to serve the political agendas of foreign governments is precisely the topic at hand in the matter of the Boston College subpoenas: The UK made peace with the IRA, closing a long civil war, but is now quite transparently fishing for evidence it can use to damage longtime political enemies of the British state. A long-ignored 1972 murder is suddenly an urgent law enforcement matter, but, hey, there’s nothing fishy about that sudden urgency, trust us, when can we have these documents?

The government responds to the ACLUM’s argument by not responding, really, except to cough and make a carefully narrow set of legal claims. But here’s the most plainly germane piece: In the government’s brief, look at footnote 32, which begins on pg. 56 (of the brief, which is pg. 68 of the PDF file). The DOJ is sure that the “thrust of the legislative history” is that Congress never meant to “graft” a standard of “wide discretion (and resulting inefficiencies)” on MLAT requests. They just meant for you to shut up, your honor, and give us the stuff, no questions asked.

They’re wrong, and Schumer’s letter proves it. Here’s the “thrust of legislative history” from a senior legislator. The DOJ is using a treaty to do something it was not meant to do. They are shamefully abusing the intent of an international agreement, and they should be stopped.

Senator Charles Schumer Letter to Attorney General Eric Holder and Secretary of State Hillary Clinton

March 22, 2012

The Honorable Eric Holder
Attorney General
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

The Honorable Hillary Clinton Secretary of State
U.S. Department of State
2201 C Street NW
Washington, DC 20520

Dear Attorney General Holder and Secretary Clinton:

I write to express my concern regarding the ongoing efforts on behalf of the United Kingdom to obtain documents and recordings from Boston College Oral History Archive on the Troubles in Northern Ireland pursuant to provisions of the US-UK Mutual Legal Assistance Treaty (MLAT). There are significant issues of journalistic confidentiality and academic freedom that are called into question as a result of this legal maneuver that make it dubious.

One issue that is implicated in this case is freedom of the press. I have always been a champion of protecting sensitive source material that is gathered by researchers – journalists and academics alike—and I am concerned that this action presents an infringement on that underpinning of the First Amendment.

But I am also deeply concerned at the implications this effort has with regard to the peace process. The ongoing success of the Good Friday peace process, facilitated and encouraged by the Clinton administration, has changed the course of history in Northern Ireland, and is laying the framework for a functioning civil society where mutual respect and equality is slowly-but-steadily replacing the polarization and violence of the past.

But this is a sensitive and delicate process that we should all be mindful to protect. As you are aware, the actions by the United Kingdom in their request to obtain documents have rightfully caused considerable trepidation among leaders in international affairs including my colleague, Senator Kerry, Chairman of the Senate Foreign Relations committee, as well as among other members of Congress. There is concern that some former parties to the conflict may perceive the effort by the UK authorities to obtain this information as contravening the spirit of the Good Friday Accords. Many have taken enormous risk in the name of moving Northern Ireland away from war and towards peace, and requests like this can have the effect of undermining that effort. I am proud of the role the United States played to bring about that peace. It would be a terrible mistake if this process were to upset the sensitive balance that has kept the peace and allowed for so much progress in recent years.

During the ratification of this treaty we in the United States Senate made clear that provisions of this treaty, and other with the UK, should not be invoked pursuant to political goals related to Northern Ireland. In particular, the Senate resolution that accompanied the ratification of the extradition treaty in 2007 states that “The Senate understands that the purpose of the treaty is to strengthen law enforcement cooperation between the United States and the United Kingdom by modernizing the extradition process for all serious offences and that the treaty is not intended to reopen issues addressed in the Belfast Agreement, or to impede any further efforts to resolve conflicts in Northern Ireland.”

Given the close relationship we have with the United Kingdom and our deep commitment to a lasting peace in Northern Ireland, I urge you to work with the British Authorities to have this MLAT request withdrawn. Thank you for your attention to this important matter, and if you are in need of any additional information please feel free to contact my Washington office at 202-224-6542.

Sincerely,

Charles E. Schumer
United States Senator