CHRIS BRAY: PSNI Theatre of Shadows

All That Is Solid Melts Into Air
Chris Bray
Friday, July 11, 2014

In October 2012, news stories announced that the Police Service of Northern Ireland would be pursuing subpoenas of tapes and notes from interviews with former IRA member Dolours Price. The PSNI had already gone after Dolours Price interviews archived at Boston College, but this new effort was to be directed at the newspaper and TV journalists who had interviewed Price about the BC subpoenas. In the crosshairs: CBS News and the Sunday Telegraph.

More than a year and a half later, there is no evidence that those subpoenas ever arrived. When Sinn Fein leader Gerry Adams emerged from his four-day interrogation at the PSNI’s Antrim station, he said that police had confronted him with material from the Boston College interviews; he made no mention of CBS or Telegraph materials. And my own tedious search of Pacer, the federal court case management website, turns up no evidence of subpoenas served on CBS News headquarters in New York.

To be sure, we can’t see very far into the underlying events, and it’s not clear what kind of contest may have taken place over this threat of subpoenas directed against journalists. I’ve been asking journalists and public affairs staff at CBS News and the Telegraph if they received subpoenas, or discussed the possibility of subpoenas with the PSNI, but those questions have gone entirely unanswered. Liz Young, the public affairs director at the PSNI, offered this careful non-answer to my questions: “Given that investigations are ongoing we are not in the position to either deny or confirm that a subpoena was sought and no inference should be taken from this.” So the conclusion has to balance the likely with the wholly unknown: It appears that the PSNI threatened journalists with subpoenas, but then didn’t follow through, and it’s not possible at this point to know why the threatened subpoenas apparently didn’t arrive.

Now: Spot the pattern. In May of this year, a new round of news stories announced that the PSNI would be seeking new subpoenas to secure every Belfast Project interview archived at Boston College. Again, no one is answering questions, but there’s no sign that those subpoenas have arrived.

Meanwhile, the high-profile arrest of Gerry Adams resulted in nothing more than the four-day-long collapse of the PSNI’s souffle. Three years after the Grand Inquisition began, Adams is a free man, and would not seem to have much reason to worry. The other big event in the PSNI’s supposed murder investigation was the March arrest of former IRA leader Ivor Bell, long purported to have been chief of staff to Adams in the 1970s IRA in Belfast. Bell was charged with aiding and abetting McConville’s murder, not with committing it; as yet, the PSNI hasn’t charged a single person with actually kidnapping McConville or actually killing her. And Bell is also a free man, released on bail as the Public Prosecution Service tries to decide whether or not to bother taking the charges to trial. They do not seem to be in any particular hurry.

So the PSNI’s “investigation” into the 1972 murder of Jean McConville — an investigation opened 39 years after the event — has made more noise than progress: some arrests that led to the release of those arrested; an arrest, with weak and likely to be abandoned charges, of someone who isn’t alleged to have killed McConville; and a storm of threats and promises that have mostly seemed to evaporate.

The available evidence continues to support the argument that I’ve now been making for more than three years: The PSNI is putting on a show, not a murder investigation.

But then spot the other pattern: Many news stories reported the PSNI’s claim that it would subpoena CBS News and the Telegraph; none reported that the subpoenas didn’t arrive. Many news stories reported that the PSNI would be pursuing the whole Belfast Project archive at Boston College; no news stories have reported that those new subpoenas haven’t been served. Many news stories reported the dramatic arrests of Adams and Bell; few journalists appear to have noticed that the air has leaked out of those arrests.

In Indonesia, puppeteers perform Wayang Kulit, a theater of shadows in which images are projected on a screen by performers who stand behind it. The PSNI is the Dalang, the puppeteer, in the shadow play of the Jean McConville “investigation.” And the news media continues to treat the play as real life.

Old Wounds & Oral History: The Aftermath of the Belfast Project

Old Wounds & Oral History: The Aftermath of the Belfast Project
The Kojo Nnnamdi Show
WAMU.org
Wednesday, Jul 9, 2014

Boston College’s “Belfast Project” aimed to compile first hand accounts of the Troubles in Northern Ireland, collecting the oral histories of 46 former combatants with the promise of confidentiality. But after British prosecutors compelled the college to hand over contents from the archive, and detained a prominent political leader for crimes allegedly committed in the 1970s, many observers are worried the tapes could destabilize the country’s peace agreement. We explore the debate in Belfast and within American academic institutions.

Guests
Zachary Schrag
Associate Professor, Department of History and Art History, George Mason University; Author, “Ethical Imperialism: Institutional Review Boards and the Social Sciences, 1965-2009” (Johns Hopkins)

Kevin Cullen
Metro Columnist, The Boston Globe; co-author, “Whitey Bulger: America’s Most Wanted Gangster and the Manhunt That Brought Him to Justice


MR. KOJO NNAMDI
From WAMU 88.5 at American University in Washington, welcome to “The Kojo Nnamdi Show,” connecting your neighborhood with the world. Later in the broadcast, we talk with journalist Louisa Lim about her new book, “The People’s Republic of Amnesia: Tiananmen Square Revisited.” But first, three decades of violent conflict in Northern Ireland, known as the Troubles that pitted the Nationalist Catholic Irish Republican Army or IRA against Protestant loyalists under the banner of the Ulster Volunteer Force or UVF, came to a tenuous end in 1998.

MR. KOJO NNAMDI
But the tensions and traumas of the time have remained close to the surface in Belfast, a fact driven home earlier this year when Gerry Adams, a long-time leader of Sinn Fein, the nationalist political party, closely linked the IRA, was arrested by police and questioned about the 1972 murder of a mother of 10. A move fueled by police in Northern Ireland, getting hold of information from an oral history project out of Boston College. An idea with altruistic goals but plagued with problems.

MR. KOJO NNAMDI
Here to bring us up to speed on the fallout and to help us understand the implications is Zachary Schrag. He’s a professor in the Department of History and Art History at George Mason College. His books include, “Ethical Imperialism: Institutional Review Boards and the Social Sciences,” and “The Great Society Subway: A History of the Washington Metro.” Zachary Schrag, thank you for joining us.

MR. ZACHARY SCHRAG
Delighted to be here.

NNAMDI
Joining us by phone, from Boston, Mass., is Kevin Cullen. He’s a Pulitzer Prize winning journalist and a Metro Columnist for The Boston Globe. He’s also co-author of “Whitey Bulger: America’s Most Wanted Gangster and the Manhunt That Brought Him to Justice.” Kevin Cullen, thank you for joining us.

MR. KEVIN CULLEN
Thanks Kojo.

NNAMDI
Kevin, Boston, which as you note, has long been seen as a moderate, so-to-speak, base of Irish-America. It may seem a natural home for a project, chronicling the troubles. What were the aims of this Boston College Project and who was behind it?

CULLEN
Well, first of all, it — the genesis of it was, sort of, in the heady days, right after the Good Friday Agreement of 1998, ended the troubles as we knew them. And the idea was to create an oral archive to go and talk to the combatants, the people that fought and were willing to kill and were willing to die for what they believed in, at the time.

CULLEN
And so it was conceived that they would, you know, hire people on the ground, in Northern Ireland, who could get to these former combatants, interview them, record what they say and place it in an archive here at the Burns Library at Boston College, which is the biggest repository in the United States for Irish related issues. And the idea would be, it eventually, historians, journalists, people interested in this would read it after all — everybody that was involved in it had long since past. And that we might learn about the motivations, conflict and how conflict is resolved.

CULLEN
Unfortunately, there was a book published by the project director, Ed Moloney in 2010, which kind of signaled the fact that they had these interviews, they’re very specifically, the book was based on the interviews given by David Irvine, who was a leading loyalist, paramilitary, before he became a politician and Brendan Hughes who was known as the Dark. And he was a senior IRA man, very close to Gerry Adams at one time but then had a falling out with him over the direction of the peace process.

CULLEN
And in that book, Brendan Hughes implicated Gerry Adams in the murder and the abduction-murder and secret burial of Jean McConville. Eventually, the police and the — I think, the timing of all this is very questionable. The police decided they wanted that evidence, they thought that that could help them solving the murder of Jean McConville, 40 years after it happened. And that — thus began the, sort of, tug-of-war, pitting the issues of academic freedom, criminal investigation and, frankly, the political prosecution of cases of the past.

CULLEN
A lot of what this comes down to is, the Boston College Project, I think, was well intentioned. It hoped that it could somehow contribute to the understanding of conflict and hopefully, you know, promote resolution of conflict and maybe even the prevention of conflict. Instead it has become a political football and you have the case, I think, very disturbing case, of an American academic institution being used as a proxy investigative arm of a foreign government.

NNAMDI
But one technicality here, if you will, and that is, Gerry Adams, it is my understanding, was in favor of the project but he was not in favor of the individuals to whom it was entrusted because he felt that they would bring a bias view to their presentation.

CULLEN
That’s true, he believes, as do many people in the Republican leadership, that Ed Moloney, the journalist, who was the project director and Anthony McIntyre, a former IRA prisoner, who did the research, who did the actual interviews of these people, they believed that they are bias, that they are opposed, that they have been on the record as being hostile to Adams and the rest of the leadership of the Republican movement. As Adams sees it, there’s no way that these guys would not ask leading questions. They would not — they would shape the research to get to a — get to a point where they want it to be.

CULLEN
The one thing I found interesting, when I was in Belfast, last week, in talking to some of the people that gave their interviews, yeah, they openly acknowledge that they don’t agree with Adams and the direction he took the Republican movement. But they said, that’s irrelevant to their history. The way they view it, if BC did not record their history, they would never — know one would know what they think because they fall outside the mainstream of Republican thought, these days.

CULLEN
So they are, sort of — they’re not dissidents in the sense they endorse the dissident groups that are carrying on violence now, but they’re certainly dissidents in the sense that they don’t agree with what the Republican leadership settled for. And they feel as though it’s very important that their side of the conflict is recorded for history.

NNAMDI
Well, it was recorded for history but as Zachary Schrag, in most coverage, we’ve heard this collection at BT — BC, referred to as an oral history project. But that description may be it glosses over a very important fact, and that is, that the people conducting these interviews that were mentioned earlier, were not oral historians. Why is that important?

SCHRAG
Right. So this was a project designed to document history but it was not a project run, for example, by the Boston College History Department. And, in fact, the history department at Boston College has been rather public in its dismay that it was not brought in. The interviewers at Moloney is journalist, the other interviewers, I believe, both have doctorates in political science, clearly these are related fields. But it does not necessarily flow that they were aware of the training in methods of oral history that go back several decades, since the historians started picking up tape recorders.

SCHRAG
And this is not to say that historians have a lot of experience with subpoenas. We do have presidents where political scientists and sociologists have their interviewed subpoenaed and had people been more aware of this, then maybe they would’ve taken more precautions. But I do think it would’ve been possibly helpful to have more historians involved in the process, talking it over. As it is, neither the interviewers nor the Boston College librarians were able, between them, to work out all the implications of their plans.

NNAMDI
Among oral historians, you just implied by saying what the Boston College History Departments responses, but among oral historians, this case has been closely watched. And you say, that some people are trying to distance themselves from the BC project, why?

SCHRAG
Well, in an interview with the chronicle of higher education, Mary Marshall Clark of Columbia University, who’s certainly one of the leading oral history experts, repeatedly said this was not an oral history project. And, I think, what she meant by that was that there are, again, methods developed over the decades to try to avoid this kind of situation where promises are made and not kept. For a long time, oral historians have tried to offer narrators the option of sealing parts of their interviews, so that if there’s something that they think should be part of the historical record but are not quite ready to go public with, right then, it can be sealed for a matter of decades.

SCHRAG
Now, again, we’ve not had a lot of experience in the profession with actually subpoenas coming in and so even if a bunch of expert archivists and historians had gotten together on this, it’s not entirely clear to me that they would’ve been able to come up with workable safeguards to allow this project to go forward.

NNAMDI
If you have questions or comments for it, you can call us at 800-433-8850. What do you make of this BC project and the unintended consequences that it has had, 800-433-8850? You can send email to kojo@wamu.org or send us a tweet @kojoshow. Kevin Cullen, in the last decade, Belfast has changed dramatically in some ways and stayed much the same in others. What did you find in both respects on your recent visit?

CULLEN
Well, I mean, I’ve been going there for almost 30 years. So I kind of knew it in the bad old days and certainly from a cosmetic point of view, Belfast is shiny and new. I was so struck by the Fitzwilliam Hotel, which is just shear plate-glass window. And that would’ve been sheer folly to have that thing up in the ’70s and ’80s.

NNAMDI
When bombs are going off everywhere.

CULLEN
Yeah. It just was — I mean, I actually — some of the richest people I met in Ireland, over the years in the North of Ireland, were glaziers because they’re very busy during that stuff. But it — the, sort of, underlying problems in that society, particularly, one of segregation, has not changed much in the year since the Good Friday Agreement. In fact, the, sort of, ironically named Peace Lines, they put walls up to separate working class republican nationalist areas from working class loyalist areas.

CULLEN
They’ve actually increased in numbers since the Peace Agreement. They’re many — I think, there are probably three or four dozen of them that have gone up in the intervening years. You know, it — when the Peace Agreement was signed in 1998, about five percent of kids in Northern Ireland went to integrated schools. That number has not changed one iota in the intervening years. So there’s sort of a — here in America, you know, in the Brown vs. Board of Education case, our Supreme Court made it very clear that separate but equal was not acceptable in the United States, under our Constitution.

CULLEN
But in fact, that is exactly how the society functions in Northern Ireland now. It is separate but equal. You know, there’s equal funding given to Catholic schools and state schools, which for all intensive purposes are Protestant schools. And the other thing that I really picked up on the ground, in there, is you know, when people talk about, you know, the North of Ireland, is this sort of, textbook case of how attractable conflicts can be resolved. That’s true as far as getting to say yes, in 1998.

CULLEN
But they really struggled since then to figure out how to deal with the legacy issues, to deal with the past. And I think the BC dilemma or conundrum, whatever you want to call it, debacle, fits into — with this micro — it’s a microcosm of the society not being able to confront, unlike, say, in South Africa where they had a very formalized truth and reconciliation process. They don’t have one in Northern Ireland and it shows. So you’ve had Peace Mail investigation, say, it’s a bloody Sunday and to different individual killings and controversy’s.

CULLEN
And then you have the BC thing with, sort of, this attempt at, well let’s put it out there and maybe historians will make sense of it down the road. And obviously that went to pot. But I think, it also, the reason it happened is that the Irish have not been able to figure out who gets to decide what their legacy is and who tells that story. And really, the stuff that I picked up on the ground, this was — this was really, even though it is a problem in the loyalist community, it’s much — a much bigger problem in the Republican community because there are Republicans fighting over who gets to tell the story.

CULLEN
And it’s obviously Sinn Fein is the mainstream, the political power. And then you have these people that have fallen away from that group and who actually resent that group. And so, that’s why the arms struggle of Irish Republicanism has been replaced by a legacy struggle.

NNAMDI
Gotta take a short break. When we come back, we’ll continue this conversation on Boston Colleges oral history project and the Troubles in Northern Ireland. But you can still call us at 800-433-8850. What kind of rigor and standards do you think should be applied to oral history projects, 800-433-8850? You can send email to kojo@wamu.org, I’m Kojo Nnamdi.

NNAMDI
Welcome back to our conversation on the Boston College oral history project and the troubles in Northern Ireland. We’re talking with Kevin Cullen. He’s a Pulitzer Prize-winning journalist and a metro columnist for the Boston Globe. He’s co-author of “Whitey Bulger: America’s Most Wanted Gangster and the Manhunt That Brought Him to Justice.” He joins us by phone. Joining us in studio is Zachary Schrag. He’s a professor in the department of history and art history at George Mason University whose books include “Ethical Imperialism: Institutional Review Boards and the Social Sciences,” and “The Great Society Subway: A History of the Washington Metro.”

NNAMDI
Kevin, Gerry Adams’ address in May may have made international headlines but with conflicts raging around the world, it has since faded for many but not all. What kind of ripple effect is it having in Belfast?

CULLEN
Well, I think people are curious to see if in fact this is just, you know, a political show to drag him in before the elections. Frankly if it was an attempt by police to embarrass him, it had the opposite effect. Sinn Fein’s vote was surprisingly much better than expected, both in local and European elections, both north and south. So there is always that sort of tendency when the British authorities — or in this case, you know, the Police Service of Northern Ireland — when they are seen to do something that is seen as unfair, that will help Sinn Fein, not hurt it.

CULLEN
That said, I think people are sitting back and saying, are they going to charge him? And if in fact they do charge him, I think there could be a serious effect on the peace process if only it will allow the people that are trying to kind of radicalize a new generation to take up arms. They would — their hand would be strengthened. They would be able to go to young people in Northern Ireland and say, hey look at this the Sinners did everything the Brits asked them to do and look what the Brits are still doing to them. And they’re not — there’s a real level of hypocrisy that I’ve heard people talk about.

CULLEN
You know, the police agency that is demanding access to the entire oral history archive at Boston College refuse to submit their own records to the police ombudsman’s office which is trying to conduct an independent review of at least 60 cases in which police offices and British military officials were accused of extrajudicial killings during the troubles.

CULLEN
So, you know, you talk to people on the ground there, both in Republican and Loyalist camps, they say, oh yeah, the cops want to come after us but they won’t go after themselves. And so there’s a lot of frustration at that level.

NNAMDI
Do have to mention the presence of the British, which is what Brendan in Vienna, Va. would like to remind us of. Brendan, your turn.

BRENDAN
Kojo, thank you. You have a fascinating program today. I’m a George Mason University history graduate and Irish American, so a great show today. Yes, wanted to comment on the fact that in the introduction you mentioned a conflict between the Loyalist paramilitaries and the IRA. Just want to add that a man combatant would be the British Army in Northern Ireland who the IRA would certainly argue that they were in conflict with as part of a national liberation struggle to unite Ireland.

BRENDAN
And also wanted to comment on the — since you mentioned the Loyalist paramilitaries on the collusion between the British government, the British Army and the Loyalist paramilitary. And I’ll take my comments off the air.

NNAMDI
Thank you very much for your call. Kevin, the violence may have subsided but you note that language remains loaded in Northern Ireland. And sharing even an intensely personal story from the time can be dangerous. Explain to us what a tout is and what can happen to someone labeled as one.

CULLEN
A tout is the local slang for an informer. And it is probably the most provocative loaded term anywhere in the North of Ireland. And throughout the troubles, you know, touts would turn up with hoods over their heads, their hands tied behind their back and at least one bullet in their head. And it was obviously the most ignominious end for anybody in those circumstances.

CULLEN
And Irish history is replete with, you know, the whole — the specter of the informer hangs over so much of Irish rebellion down through the centuries. And so after Gerry Adams was arrested in May, graffiti appears all over parts of Belfast. And it said, Boston College touts, the implication being anybody who took part in the Boston College project was touting because they were talking about IRA operations.

CULLEN
Now I spoke specifically with two people who had been identified publically as having given interviews to BC. One is Ricky O’Rawe who was actually the spokesman for the hunger strikers in 1981. He was one of the blanket men who refused to wear prison uniforms when he was doing his time for IRA activity. Other fellow I talked to is Tommy Gorman, another IRA veteran I think spent about 13 years in prison for IRA activity, Escaped from prison twice.

CULLEN
They saw that as a direct threat on their lives. They believe that there are people, the erstwhile comrades who would consider themselves justified in killing them because the touted. That’s the way it’s being seen. And again, in the story I told — and this is — I didn’t even know about the story and, I mean, I had — I’m in Northern Ireland pretty regularly, but I somehow missed this one.

CULLEN
A few years ago a guy named Gerry Bradley who was a member of the IRA in North Belfast, he wrote his own book and he did not vet it. He did not send the manuscript for vetting with the Republican leadership. And after his book came out — and Jerry — in an interview he gave he said, you know, I didn’t name anybody. This was my story and I didn’t submit it for — I’m not going to have my story censored. And very shortly after the book came out, it appeared on the walls in the (word?) which is the neighborhood where Jerry lived. And he was accused of being a tout. And he eventually left his neighborhood and was despairing and he killed himself.

CULLEN
So there are real implications for this word and it’s thrown around kind of willy-nilly in circumstances like this. There are people pointing fingers at each other and publically accusing each other of being touts. And again, that is a word that carries enormous consequence in the North of Ireland.

NNAMDI
Zachary Schrag, these tapes contain narrators implicating other in acts of violence, which raises all kinds of murky questions about slander, about liable. What recourse, if any, do those who took part in the project likely have?

SCHRAG
Well, unfortunately there’s not good law right now. So Boston College has sent back the interviews to those it can. And Mr. Cullen’s article describes one set of interviews being burned by the person who gave it. In the long term we do have federal protections for some kinds of research, if you’re doing health research, for example, with sex workers or drug users who you know they commit crimes but you’re trying to do public health research, you can get protections from subpoena for that.

SCHRAG
If you want to research criminals and are willing to burn the tapes afterwards, you can get shield law protections from the Department of Justice for that. But what we don’t have in U.S. federal law are broader protections where people doing this kind of research could really guarantee that the materials would not be released under subpoena. And until we have that we can’t get the kind of reconciliation that Mr. Cullen talked about.

NNAMDI
As a journalist on a live broadcast, I ask a guest a question, you answer it. That answer’s out there for everyone to hear, maybe read at a later date, whether it’s tomorrow, five, ten years from now. But oral history works on a very different set of assumptions and procedures with a very different end in mind. The saying goes that journalists write the first draft of history, so what needs to happen to create a final or more definitive draft?

SCHRAG
Well, ideally in an oral history project you go to a narrator, go back and forth multiple times, you do a recorded interview, you transcribe it, the narrator reads it, maybe adds some things, takes out some things. And what you’re trying to do is to get a polished finished narrative that the narrator thinks really represents his or her experiences in position. And that will last as an archive. It’s almost like writing a memoir only without limiting it to the relatively few people who have the time and money and resources to actually publish a memoir.

SCHRAG
The problem, again, is that if there are going to be people coming into that process, either through subpoena, Freedom of Information Act requests, which is a problem for those of us who work at public universities, then that bond between interviewer and narrator is broken. And the narrator can’t be as candid as he or she would like. And you have to limit things to what’s on the record.

SCHRAG
Fortunately for most oral history projects that’s fine. Most oral history projects are not about unsolved murders but it’s still unfortunate that we have this kind of project hanging over us and perhaps deterring future research.

NNAMDI
Kevin Cullen, the nature of truth and memory issues of ownership of a story, who gets to write the history, all central to this current conflict. As a journalist who’s covered both international conflicts and written about the havoc wreaked by Whitey Bulger in Boston, what do you make of the chilling effect that remains in this case and so many decades after the fact?

CULLEN
Well, all I can tell you is the people that I interviewed who gave interviews said they would never in a million years have agreed to do it if they thought their stuff could come up before they died. They really — now, you know, we can go back and forth of whether BC was clear enough on this, whether the project director and the interviewers were clear enough on it to the people. But there’s no doubt in my mind talking to these people that they thought it was not going to come out until they were dead.

CULLEN
And so will it have a chilling effect? I would think it would have to. I would think any time you approach somebody and asked them to detail what is essentially the violation of laws or committing crimes, even if they would justify it as, you know, an act of war, an act of, you know, natural self determination, they would be — I would think they would be very cautious. They would point to this case. UI think it’s, you know, unmistakably true that this is a test case, that this has set a precedent. And I would say it set a very, very bad precedent. I think it’s bad for oral history. I think it’s bad for conflict resolution.

CULLEN
Because I remember, you know, there are guys on the Loyalist side I talked to, they really thought they were doing a public service. They thought they were helping people down the road. If people could see why they did what they did and also explain why they stopped when they stopped that lessons — valuable lessons about conflict and conflict resolution would be imparted. And now they feel that was all for naught. And as Plum Smith, one of the leading Loyalists puts it, he says, I don’t think anybody would ever sit down and give a candid account in a case like this again.

NNAMDI
Well, Kevin, Northern Ireland’s peace process did not end with a Good Friday agreement or the 2006 amendment to it. Gerry Adams as part of a Sinn Fein delegation sat down with Prime Minister David Cameron last week. Where, in your — looking in your crystal ball, do you see the continued process going next?

CULLEN
Well, first of all, I don’t think it’s likely that we would go back to armed conflict. I mean, there are dissident groups on the ground, at least on the Republican side, who believe that they have the right to engage in armed struggle. That said, I think those days are really gone.

CULLEN
The other part of this is obviously that you can always reignite issues in Ireland with — if people are seen to be treated unfairly. And that’s why potential prosecutions that arise from this, I think, could have a dramatically detrimental effect on the peace process. But I think the other thing is, this issue of the past and dealing with it, I think it’s something that this society hasn’t really taken formal steps to handle with. The piecemeal nature of truth recollection or truth recovery I think has actually had a negative effect.

CULLEN
And unfortunately, you know, there is no Mandela in Northern Ireland. There is no archbishop Tutu. There is no person that you could point to as sort of being the arbiter of how we’re going to handle this. I mean, Richard Haass from the United States government is actually over there, and Megan O’Sullivan from Harvard. And they’ve been trying to help the Irish deal with their legacy issues. How do they deal with the past? How do Unionists celebrate their traditions without offending Nationalists and vice versa?

CULLEN
So I think this is something that’s going to go on. We’re in a post-conflict situation in Northern Ireland. And I think it’s that old truism. Sometimes it’s harder to keep the peace than to make the peace. And there are a lot of, a lot of struggles that this society has in front of it. And hopefully they will get through it.

NNAMDI
And I’m afraid we’re just about out of time. Kevin Cullen is a Pulitzer Prize-winning journalist and a metro columnist for the Boston Globe, co-author of “Whitey Bulger: America’s Most Wanted Gangster and the Manhunt That Brought Him to Justice.” Kevin, thank you for joining us.

CULLEN
Thank you, Kojo.

NNAMDI
Zachary Schrag is a professor in the department of history and art history at George Mason University. His books include “Ethical Imperialism: Institutional Review Boards and the Social Sciences,” and “The Great Society Subway: A History of the Washington Metro.” Zachary Schrag, thank you for joining us.

SCHRAG
Thank you.

1st Response to FOI Request: Belfast Project Documents (DOJ-OIA)

FOI Request: Belfast Project Documents (DOJ-OIA)

U.S. Department of Justice
Office of Enforcement Operations
Criminal Division
Washington, D.C. 20530
July 1, 2014

Mr. Dustin Slaughter
MuckRock News
Dept. MR 12221
Post Office Box 55819
Boston, MA 02205
12221-51634023@requests.muckrock.com

Dear Mr. Slaughter:
Re: CRM-300452623 KWC:CPS

The Criminal Division of the U.S. Department of Justice acknowledges receipt of your Freedom of Information Act request dated June 1 8, 2014, in which you requested access to records concerning the Belfast Project. Your request has been assigned file number CRM-300452623. You should refer to this number in any future correspondence with this Office.

The records you seek require a search in another section of the Criminal Division, and so your request presents “unusual circumstances” under the FOIA. See 5 U.S.C. 552 (a)(6)(B)(i)- (iii), Because of these unusual circumstances, we need to extend the twenty day time limit to respond to your request beyond the ten additional days provided by the statute. The time needed to complete our processing of your request will necessarily depend on the complexity of our records search and on the volume and complexity of any records located. In an effort to facilitate our records search, you may wish to narrow the scope of your request to limit the number of potentially responsive records or agree to an alternative time frame for processing, should records be located; or you may wish to await the completion of our records search to discuss either of these options.

You have requested expedited processing of your request pursuant to the Department’s standard permitting expedition for requests involving “[an] urgency to inform the public about an actual or alleged federal government activity, if made by a person primarily engaged in disseminating information.” See C.F.R. 16.5(d)(ii) (2013).

Based on the information you have provided, I have determined that your request for expedited processing under this standard should be denied. This Office cannot identify a particular urgency to inform the public about an actual or alleged federal government activity beyond the public’s right to know about government activities generally.

We have not yet made a decision on your request for preferred requester fee status or your request for a fee waiver. We will do so after we determine whether fees will be assessed for this request.

If you have any questions or wish to discuss reformulation or an alternative time frame for the processing of your request, you may contact me by telephone at (202) 616-0307, or you may write to me at the Criminal Division, United States Department of Justice, Suite 1127, Keeney Building, 950 Pennsylvania Avenue, NW, Washington, DC 20530-0001. Thank you for your interest in the Criminal Division.

Sincerely,

Kenneth Courter
Acting Chief
FOIA/PA Unit

FOI Request: Belfast Project Documents (DOJ-OIA)

FOI Request: Belfast Project Documents (DOJ-OIA)
Dustin Slaughter
MuckRock
18 June 2014

Status: Awaiting Acknowledgement

From Dustin Slaughter to Department of Justice, Criminal Division on June 18, 2014:

To Whom It May Concern:

This is a request for expedited processing and fee waiver status under the Freedom of Information Act. I hereby request the following records:

Any and all documents possessed by the Department of Justice’s Office of International Affairs pertaining to the Belfast Project.

All processing notes produced as a result of this request should also be included.

The Belfast Project, started in 2001 and concluded in 2006, is a collection of oral histories currently kept at Boston College, and created by journalists Ed Maloney and Dr. Anthony McIntyre, for the purpose of documenting and preserving an historical account of the period in Northern Ireland known as “The Troubles”. This request seeks all responsive documents starting from 2011, when the Department of Justice, through the US/UK Mutual Legal Assistance Treaty (US/UK MLAT) on behalf of the Police Service of Northern Ireland (PSNI), subpoenaed Boston College for interviews conducted as part of this oral history project.

This request includes but is not limited to: any and all emails, memorandums, briefs and reports, and audio/visual presentations, as exchanged with the UK Home Office and/or Police Service of Northern Ireland under the US/UK Mutual Legal Assistance Treaty.

This request does not exclude any other records which, though not specifically requested, would have a reasonable relationship to the subject matter of this request. I also expect to be provided with all segregable portions of otherwise exempt material.

The time frame for this request includes all responsive documents from 1 January 2011 up to and including the date this request is officially processed.

My request for expedited processing should be granted without delay, as the Belfast Project is a matter of continuing press coverage, and has generated much interest from the general public as well as academic circles. Indeed, a simple Google search for “Belfast Project” yields over 31,000 results which include major international and national media outlets ranging from The Guardian, The Irish Times, The New York Times, The Boston Globe, in addition to a multitude of academic journals, and more.

I also believe my request for a fee waiver should be granted, because this request is in the public interest. As a member of the news media, I will use information gleaned from responsive records released to MuckRock.com to produce work that will be made available to the general public free of charge and not for commercial usage.

Please reference these clippings as evidence of my news media status:

https://dustinslaughter.contently.com/

Additionally, your office should grant my fee waiver request because of MuckRock News’ mission statement as evidenced on its ‘About’ page (https://www.muckrock.com/about/):

MuckRock News has been recognized by “the Sunlight Foundation, The Freedom of the Press Foundation, and hundreds of local and national news outlets for its groundbreaking work in areas such as government spending, surveillance, and public safety.

In addition, MuckRock works with journalists to help conceive, pursue, and publish original stories on issues that matter with exclusive primary materials obtained via public records law.”

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Dustin Slaughter

 

Justice on the Cheap at the Cost of History

Justice on the Cheap at the Cost of History
Thing Discovered to Be What It Is
Chris Bray
Wednesday, June 11, 2014

The legal justice system in Northern Ireland is now discovering something that they might always have known, if they had ever bothered to ask.

Lawyers for Ivor Bell, who stands accused of long-ago IRA membership and complicity in the events leading to the 1972 murder of Belfast widow Jean McConville, have argued before a judge that the oral history interviews being used against their client are subjective and unreliable. They are. Indeed, they must necessarily be all of the things Bell’s lawyers say they are. Oral history interviews are valuable to historians precisely because they are entirely subjective, the personally framed stories that people tell about themselves. Subjectivity and unreliable narration aren’t a failure of the form; they’re an inevitable feature.

In Los Angeles, locked in the archives at the University of California, researchers can find the massive transcript of a long series of interviews conducted with Jack Tenney, a California state legislator during the communist-hunting years of the McCarthy era in the United States. For years, Tenney chaired a committee that found communists under every rock in Hollywood, and nearly every rock everywhere else. “You can no more coexist with communism,” Tenney said, “than you can coexist with a nest of rattlesnakes.”

There was just one problem for California’s leading slayer of far-left monsters: He had been a well-known and longtime activist on the political left. He spent the rest of his life trying to forget that inconvenient past.

The oral history interviews archived at UCLA endlessly reveal the depth of Tenney’s later self-deception, as the interviewer leads him through a series of events and asks for his explanation. His membership in the leftist National Lawyers Guild? Well, see, he was sitting in his office when this young man came by and asked for two dollars for some new organization, and Tenney was distracted, so he fumbled for his wallet and paid the initiation fee, not knowing what he was joining. He was later spotted at an NLG convention, wearing a delegate’s ribbon on his lapel, because he had checked into the hotel on business without knowing the Guild was meeting there. Then he bumped into some very, very distant acquaintances, who insisted on giving him a ribbon as a friendly gesture, and he didn’t want to offend them, so….

Tenney’s interviews go on like this for hundreds of pages, revealing a man at war with his own life and trying to talk his way out of his past. The interviews are, in other words, oral history: True in parts, false in parts, often deeply revealing in both. The way a person lies about his own life tells you as much about who he is as the parts that are factually accurate.

The Belfast Project, the oral history interviews of Northern Ireland paramilitary fighters conducted under the aegis of Boston College, could have been a project of enormous value for historians. It would not have been valuable because every word in every interview was true, and no historian would have approached the interviews on those terms. The richness of the project would have been found in its collisions between verifiable fact and proven deception, in the way people told their own stories about the politics of a violent past. The collection would have been an extraordinary resource, but will now be taken apart and destroyed, piece by piece.

That needless act of destruction is taking place because of the breathtaking naivete and laziness of the PSNI’s hapless and self-interested detectives, who believed they could make up for a forty-year investigative failure by going to the Burns Library and checking out a set of interviews that someone else bothered to conduct. Police in Northern Ireland apparently believed they could seize a set of academic interviews, type a few pieces into a report for prosecutors, and deliver some justice on the cheap.

Few authorities have ever been more wrong, or more avoidably foolish. Oral history interviews are not police documents. It was stupid to believe they could be.

Who’s Quashing Who?: The Battle Between Scholars and Subpoenas

Who’s Quashing Who?: The Battle Between Scholars and Subpoenas
Julie RosingFN1
Kentucky Law Journal
University of Kentucky College of Law
June 2014

Download PDF Version

Introduction

Last year the First Circuit’s decision in United States v. Moloney, requiring two scholars from Boston College to forcibly disclose their confidential research, shocked the academic world.FN2 This high-profile subpoena case brought the idea of a “scholar’s privilege” to the forefront of the legal arena once again. The outcome of the case—the forcible disclosure and the denial of the scholar’s motion to quash – was not, by itself, all that surprising.FN3 But the vague, general lack of analysis on which the First Circuit denied the assertion of a “scholar’s privilege” was indeed both shocking and inappropriate.

There are two questions that must be answered to clear up ambiguities in this hybrid problem of evidentiary and constitutional law. The first is whether a scholar’s privilege does or should exist. The second is if the scholar’s privilege does exist, how can the courts uniformly apply the privilege?

This note advocates that the scholar’s privilege should exist as a qualified privilege. This note further advocates that the circuits should reject their current arbitrary use of the privilege and instead apply a balancing test that accounts for the interests of both the academics attempts to protect their research and the party seeking disclosure. Although the Supreme Court of the United States denied certiorari to United States v. Moloney, the issue of the scholar’s privilege will not fall by the wayside. The time has come for a definitive, specific ruling on the issue. We must find a better way for scholars and subpoenas to co-exist.FN4

I. The Existence and Evolution of the Scholar’s Privilege

The scholar’s privilege stems from the long-standing and hotly debated concept of a “reporter’s privilege.” The Supreme Court struck down this privilege in Branzburg v. Hayes.FN5[5] In 1972, Branzburg held that there is no absolute reporter’s privilege available under the First Amendment for reporters to refuse to answer questions or be subpoenaed in a grand jury proceeding. Circuit courts have split for years over the correct interpretation of Branzburg.FN6

Some circuits, such as the Sixth circuit, apply Branzburg’s holding rigidly, allowing absolutely no reporter’s privilege in any circumstance. In other circuits, like the Third Circuit, Branzburg does not control. The First Circuit has restricted the Supreme Court’s decision to its facts, implying that “[i]t seems a moot point now to argue that there is no reporter’s privilege in the federal courts.”FN7 But, the First Circuit has also developed a vague balancing test to determine applicability of the privilege. Several other circuits have adopted their own variations of balancing tests—but no uniform standard has been propounded beyond Branzburg.

The circuit split is not surprising when considering that Branzburg’s holding did not command a majority. Even more notable is Justice Powell’s concurrence and the dissenting opinion, stating “express support for recognizing a qualified newsman’s privilege,” which further bolstered the privilege’s strength.FN8

From the uncertainty of the application of a reporter’s privilege sprang further uncertainty when scholars began challenging subpoenas in the research context. The scholar’s privilege has not been as frequently litigated as the reporter’s privilege until recently.FN9 These cases vary factually, and scholars have only succeeded in quashing subpoenas in a few, narrowly construed factual anomalies.

The dilemma of the scholar’s privilege spans two legal subjects: evidentiary law and constitutional law. Critics of recognizing reporters’ and scholars’ privileges take the evidentiary angle. These critics argue that because the privileges are not included in the Federal Rules of Evidence, the Supreme Court has rejected their existence and therefore, their application.FN10 Proponents fight for “the constitutional guarantees of free expression, privacy, and defendant’s rights,” which they believe justifies recognition of a testimonial privilege to protect the researcher-subject relationship.FN11

Further, although many parallels can be drawn between the reporter’s privilege that was denied in Branzburg and the idea of a scholar’s privilege, there is also at least one notable difference—reporters may have an additional route for protection via reporter shield laws.FN12 Markedly, no states have legislated to protect the researcher in a similar manner as reporter shield laws. Therefore the scholar’s privilege is essentially the only protection that scholars may have.

The First Circuit has been confronted with the scholar’s privilege on a number of occasions, most notably is the In re Cusumano v. Microsoft Corporation case. Cusumano held that interview information collected by two scholars for a book was privileged from discovery.FN13 Although a scholar’s privilege is admittedly created in this case, the holding remains narrow: “[i]t would be extravagant to read the case as establishing any broad ‘scholar’s privilege.’”FN14 Through this ruling, research is clearly proven to be a special endeavor, deserving protection by at least a qualified privilege.FN15 However, the First Amendment balancing test applied in this case leaves much ambiguity, leading critics to the conclusion that Cusumano may have been a fluke decision.

The traditional balancing test that the First Circuit has adopted requires a court to “place those factors that relate to the movant’s needs for the information on one pan of the scales and those that reflect the objector’s interest in confidentiality and the potential injury to free flow of information that disclosure portends on the opposite pan.”FN16 Essentially the need for disclosure of the information is balanced with confidentiality and First Amendment guarantees. The factors to be used on both sides of the balancing test are not explicitly identified, creating room for varying interpretations and inconsistent decisions.

II. The Moloney Decision

Most recently, the First Circuit was again confronted with the issue of the scholar’s privilege and the incomplete balancing test in United States v. Moloney, when two researchers from Boston College were subpoenaed and required to disclose confidential interviews regarding their work on the Belfast Project.FN17 The Project consisted of taping oral interviews from recollections of members of the Provisional Irish Republican Army, the Provisional Sinn Fein, the Ulster Volunteer Force, and other paramilitary and political organizations involved in the “Troubles” in Northern Ireland from 1969 on.

British authorities sought the interviews of Brendan Hughes and Dolours Price (former Irish Republican Army members) who were implicated in the 1971 abduction and execution of Jean McConville, a suspected British informant.FN18 The crux of the case lies in the fact that the Belfast Project scholars made explicit promises of confidentiality that the interview contents would be protected until the deaths of the interviewees. Since Hughes was dead at the time disclosure was requested, there were no problems with introducing his interview testimonial in court. The only issue was whether Price’s confidential testimonial could be disclosed because their confidentiality agreement had not ended at the time of the First Circuit decision. However, an interesting and surprising twist occurred while the case was wading in the uncertain cert-pool: Dolours Price was found dead in her home from an apparent drug overdose in January 2013. It is unclear as to whether this living vs. dead distinction affected the Supreme Court’s decision to deny certiorari in April.

The application of the balancing test in Moloney is radically different than the application and outcome in Cusumano. First, the precedent from Cusumano deals with claims of non-disclosure privilege in civil cases involving private parties. Moloney is more similar to the Branzburg case, in that the matters in both cases concern disclosure in criminal proceedings.FN19 The US Government was seeking the interviews in Moloney pursuant to the Mutual Legal Assistance Treaty (MLAT) with England. Governmental and public interest seem to automatically have a higher stake in criminal proceedings, and especially where foreign treaty obligations are at issue.FN20

What is striking, regardless of the Supreme Court’s denial, is that the majority opinion of Moloney almost completely disregards the interests of the researchers. The majority does not include an analysis of the researcher’s interests other than to mention that “the fear…that disclosure might threaten their job security or personal safety or that it will simply result in dishonor or embarrassment” is insufficient to create enough of a scholar’s interest to tip the balancing scales in their favor. A balancing test is not a balancing test if one side is ignored.

Justice Torruella appeared to be concerned with the majority opinion’s lack of consideration of the researcher’s First Amendment claims:

It is one thing to say that the high court has considered competing interests and determined that the information gatherers (here, academic researchers) may not refuse to turn over material they acquired upon a premise of confidentiality when these are requested via government subpoena in criminal proceedings. It is entirely another to eagerly fail to recognize that the First Amendment affords the Appellants “a measure of protection…in order not to undermine their ability to gather and disseminate information.”FN21

Torruella concurred in the judgment of the opinion only, on alternate reasoning.

Justice Torruella’s astute observations in the Moloney concurrence call for a uniform application of the balancing test in order to fully protect the First Amendment rights of scholars, researchers, and academics. His opinion requires that the balancing test must actually perform balancing for a legitimate verdict to be reached.

III. Proposal for an Adequate Balancing Test

The balancing test that I propose is undoubtedly complex because it aims at protecting the interests of a variety of parties including: the subject, the researcher, the sponsor, the facilitator, the prosecutor, the state, and society.FN22 The test advocated here combines elements from the First Circuit balancing test from the Torruella concurrence in Moloney, and from various other circuits and lower courts, to propound a uniform standard that ultimately aims at recognizing and evaluating the interests of the scholars. I believe that this test fills gaps where the First Circuit majority in Moloney failed.

A. The First Amendment Interest: Potential Harm to Free Flow of Information

1. Qualified Individuals

The first factor to consider is whether the individuals that are trying to prevent disclosure fall under the traditional protections of the First Amendment.FN23 Reporters and academic researchers alike fall into these protections because they perform a range of conduct relating to the gathering and dissemination of information.FN24 The fact that scholarly research “provides the public with historical and analytical perspective on issues of public concern in government” demonstrates its traditional information dissemination purpose.FN25 No traditional First Amendment protection equals no potential protection under the scholar’s privilege.

Determining that scholars and researchers should receive qualified protection under the balancing test is fairly straightforward analysis from the First Amendment. Determining who qualifies as a “researcher” or a “scholar” is a more difficult inquiry. Beyond researchers and scholars, archivists should also fall into the traditional First Amendment protections. “Archivists have a professional duty to curate many types of materials, some of which contain confidential information.”FN26 However, researchers, scholars, and archivists should all be classified by their functions rather than their titles.FN27

2. Confidentiality

The next factor to consider is whether or not the information, subject to disclosure, is classified as confidential. Information available to the general public or which can be accessed through other means of discovery may not be classified as confidential. Researchers should always be careful to get express, signed confidentiality agreements from their participants with explicit statements of protection. Even if a researcher has not made an express guarantee of confidentiality to their informants, a court may be able to deny a request for discovery of raw data if it finds very strong privacy interests are present.FN28

One disturbing aspect of the balancing test as it stands currently is that even express indications of confidentiality, like confidentiality agreements between researchers and participants, may not be indicative of privilege.FN29 For instance, even though the need for confidentiality was a central and prominent aspect of the Belfast Project in Moloney, including written agreements requiring that access to the interview records be restricted until their death or upon written approval,FN30 the court still rejected the application of privilege because the researchers knew that Boston College could make no guarantees of the ability to refuse disclosure on a court order. The court cited to a failure of Moloney’s donation agreements, but referenced Branzburg to reassert that even promises of confidentiality made in express confidence do not create a privilege.FN31 Therefore, confidential information is necessary for the privilege, but cannot alone establish the privilege under the current test.

This decision invalidating express confidentiality agreements is contrary to public policy. Because the court in Moloney already had possession of the tapes from reviewing them in camera, they were “making a sham of the scholar’s absolute assurances to their interview subjects that they would keep the tapes absolutely confidential until the death of each interviewee.”FN32 The notion that researchers can make promises of protection to their participants that can be struck down as unenforceable in court is disconcerting. “[I]f the government may subpoena confidential information subject to virtually no judicial scrutiny, the likely result will not be that the criminal justice system benefits, but that fewer people involved in potentially illegal conduct opt to speak to the press in the first place.”FN33

Under this balancing test, explicit confidentiality agreements must weigh in favor of applying the scholar’s privilege in all but the most extreme factual circumstances. In Moloney the confidential interviews were sought through the MLAT treaty to solve longstanding murder investigations, which might very well reach the extremity requirement.

Other factors relating to the confidentiality of the material must be taken into account as well.FN34 For instance, researchers may fear that they will “[run] the well dry” if their information is forcefully disclosed through subpoenas.FN35 Voluntary revelations and bargained-for communications between a researcher and study participants are vital to a researcher’s work. Consequently, “[w]ithout these sources . . ., many researchers, . . . would lose valuable sources of information.”FN36

Study participants revealing personal or embarrassing information will be appropriately shielded here under the balancing test. The study participants in the Proctor & Gamble case were kept confidential because the information was highly personal in nature including medical history and sexual activity. The nature of this personal information could inhibit future studies if revealed due to a fear by participants of inevitable disclosure.FN37

Furthermore, First Amendment interests should not be discounted because a third party holds the confidential materials.FN38 Third parties typically destroy confidential researcher-client communications in testimonial privileges and sever the effect of confidentiality agreements. In Moloney, Boston College was in possession of the confidential interviews. Boston College did not bother to challenge the first subpoena issued, and even when challenging the second subpoena, the lawyers began the challenge by submitting the materials to the judge to be examined in camera.FN39 Ultimately, researchers must take responsibility in forming explicit agreements with their participants and keeping their agreements and communications as their property. But, since difficulties may arise for researchers in keeping their research out of the hands of third parties (especially in the institutional context), the court should weigh the researcher’s efforts to retain sole possession over the information instead of the actual result. Efforts sufficiently signify that the researchers valued the confidentiality interests of their participants enough to make a stand for them, which should weigh in their favor.

In sum, confidentiality must be weighed by (1) whether a confidentiality agreement was reached between researchers and participants (2) whether personal privacy interests are present for participants (3) whether future research will be inhibited if there is disclosure and (4) efforts by the researchers to keep their research out of a third party’s hands.

3. The Extent of Protection Appropriate: Dangerous or Scandalous Information

If the information pending disclosure is found to be confidential—the next step is to determine the extent of protection that is appropriate for the confidential information. Determining the extent of protection likely must be satisfied through a case-by-case basis, through context evaluation of the confidentiality aspect. The highest demonstrations of confidentiality should be afforded the most protection and inadequate showings will not earn protection. Torruella’s view in Moloney found the interviews that the Belfast Project researchers conducted were confidential—due to the great lengths that the researchers went to prevent their unsanctioned disclosure.FN40 The Moloney case is a perfect example of information found to be confidential that was still not afforded the protection that the researchers wanted. There are a number of ways for the party seeking disclosure to deal with information that falls somewhere between highly confidential and inadequate including: limiting the subpoenas to only relevant claims, being willing to accept data with redacted confidential information, and helping to underwrite the costs of redaction and photocopying.FN41

Beyond confidentiality, the personal safety and potential dangers that disclosure will cause for the researchers must be weighed as well. Media in response to the disclosures in Moloney reported death threats against the Lead Researcher for the Belfast Project, Anthony McIntyre.FN42 Mr. McIntyre also stated in an affidavit that the home next door to his was smeared with excrement after the interviews were released. As mentioned earlier, the topics of many research projects are sensitive, highly personal, or controversial, and the safety of researchers and participants absolutely must be weighed with care. The issuance of the subpoenas in Moloney also “prompted broad news coverage and a minor international scandal.”FN43 Not only did the ACLU attempt to intervene, but Senator John Kerry and Secretary of State Hillary Clinton urged British authorities to revoke the subpoenas to encourage the peace process in Ireland. John Kerry has further argued alongside Moloney and McIntyre that “peace process stability considerations must take precedence over the tightly-written treaty obligations of the MLAT.”FN44 Subject matter that is more likely to create public condemnation should be afforded the most protection under the balancing test, while benign research on uncontroversial subjects will typically garner less protection.

On a similar note, public curiosity or newsworthiness in the content of confidential research should not be valued in the balancing test. The Dolours Price interview garners large public interest, but most of the interest is not based on the confidentiality issues or the police misusing academic researchers for law and order purposes. Instead, the public really wants to know the “gory details of what they imagine are in these interviews,” which is driving and influencing much of the reporting.FN45 Once again, an inflamed public, or heightened social interest should have no bearing on the balancing test in these cases. The focus must be turned from the sensational, provoking subject matter, to the true issue of the case—which is solely the rights of the academic researchers.

In sum, there are a myriad of factors that fall into the First Amendment interests including whether the individuals fall into traditional First Amendment protection, whether the information is confidential, and the extent of protection that the confidentiality requires. The key to evaluating each of these factors is thoroughness and reasonableness.

B. The Opposing Interest: The Need for the Information

1. The Nature of the Proceedings

The nature of the proceedings, evinced by case law, primarily rests on whether the action is a criminal matter or civil matter. Branzburg flatly rejected the use of a reporter’s privilege in grand jury proceedings.FN46 Other than that, Branzburg did little to specify whether this type of privilege could be used elsewhere. This is where the circuit-split rears its ugly head. Some circuits have held that Branzburg forecloses First Amendment protection in all criminal cases.FN47 However other circuits have claimed there is no reason to distinguish between civil and criminal cases in application of the privilege.FN48 The majority in Moloney disavows the precedent of the First Circuit that permitted success and application of a scholar’s privilege simply on the basis that these were civil cases where the government and public’s strong interest in investigation of crime was not an issue.FN49

Case law evidences that the government’s presence as a party in criminal litigation makes a radical difference in the balancing test, as opposed to results obtained in private litigation.FN50 It seems that the government can more easily prove their need for the information by emphasizing interests of national security and public safety when criminal overtones are present.FN51 Essentially, when the Government is a party to the litigation, if they follow their own guidelines and use careful practice, there should be fewer problems with getting their subpoenas granted. In the Moloney case, the government was the party seeking disclosure of the information. The Government’s interest was clear through the UK-MLAT treaty in which the federal government of the United States assumed an obligation to assist the United Kingdom in its prosecution of domestic criminal matters.FN52

The current balancing test requires that for the party pursuing disclosure in civil litigation to defeat the scholar’s privilege, the research must be more than remotely related to the lawsuit. The relationship between the information sought and the academic research must be more than tenuous.FN53 For example, in one Second Circuit case, a student was working in a restaurant to gather information for his dissertation when a suspicious fire and explosion occurred in the restaurant.FN54 His journal and notes were subpoenaed. Although his journal entries were clearly “scholarly work product,” the relationship between the fire and the student’s academic research were remote and could not be classified as expertise.

However, the question remains as to whether or not this binary distinction between civil and criminal cases is appropriate. The implication should be that civil cases will more likely be granted the privilege, but the type of case should not be a decisive factor. Criminal matters cannot be conceded to the government the way that they have been previously. Branzburg once again offers little guidance since the holding effectively only prevents a privilege in regard to grand jury proceedings. Therefore, the civil/criminal distinction should be considered when balancing the need for information, but should not preclude the government from being defeated if they are unable to prove that their need is legitimate.

2. Exhaustion of Alternative Sources

The second factor that must be addressed is whether the opposing party has exhausted alternative sources for accessing the information. Although this inquiry is not essential to defeating the privilege, it is still relevant in determining whether subpoenas seeking the confidential information are necessary.FN55 In Moloney, the information the government was seeking were interviews from one source who had passed away and one source that was still living. The government had no way of eliciting the information from the dead source, which makes their case even more compelling. However, the government could have contacted the living source, Dolours Price, to obtain the interview information. If Price were to refuse to surrender the information from her own memories and experiences, that would be her prerogative. This conundrum is similar to Cusumano, where the court permitted the scholar’s privilege, in which “Microsoft could have obtained that information directly from the sources revealed by the manuscript.”FN56

The one exception to living sources are cases where the alternative means of acquiring the information will create an undue delay or burden to the opposing party. In this case the factor should weigh in favor of the party seeking disclosure. At the time that the First Circuit opinion was issued, Dolours Price was an emotionally unstable woman. McIntyre speaks of Price as a sensitive woman who suffered mentally from the betrayal by those who shared culpability and by others who abdicated their responsibility.FN57 She would likely not have consented to an interview with the government in the way that she previously had with the Belfast Project researchers. In contrast, Price had built a relationship of trust with McIntyre; she attended his wedding and was the godmother of his son. These conditions on Price’s willingness to be interviewed may serve as an example of an undue burden to the opposing party seeking disclosure. But, once again, an unwillingness to perform other interviews should not constitute an undue burden unless all other alternatives to the information are inaccessible.

The civil/criminal distinction may also come to bear on whether the information is accessible by other means. Case outcomes indicate that information sought in criminal cases will be more difficult to access from alternative sources.

Conclusion

There is no doubt that the scholar’s privilege argument will rear its head again soon, likely without the complications of an international treaty and a murder investigation allowing the courts to cruise past confidential researcher interests. At some point, the Supreme Court must clarify for lower courts to what extent parties asserting their First Amendment interests in challenging government subpoenas of confidential information should – consistent with Branzburg – have a Constitutionally guaranteed right to present evidence before the court for review. If not, scholars and researchers will continue to have their motions to dismiss disclosure quashed, which in turn will cause scholars and researchers to have their work, their passion, and their interest in sustaining oral and written history quashed. The time has come to stop quashing and start protecting.

 


FN1. University of Kentucky College of Law, J.D. candidate for May 2014.

FN2. Nicholas J. Wagner, Split Over Reporter’s Privilege Highlights Tension Between National Security and the First Amendment, Circuit Splits (July, 12, 2012, 5:27 AM) http://www.circuitsplits.com/2012/07/in-2010-before-an-audience-of-college-students-justice-sotomayor-remarked-that-the-supreme-court-is-likely-to-have-to-rule.html.

FN3. See United States v. Moloney, 685 F.3d 1, 16-20 (1st Cir. 2012); Will Havemann, Privilege and the Belfast Project, 65 Stan. L. Rev. Online 79, 79 (2012) http://www.stanfordlawreview.org/sites/default/files/online/articles/Havemann_65_SLRO_79.pdf.

FN4. See Robert M. O’Neil, A Researcher’s Privilege: Does Any Hope Remain? 59 Law & Contemp. Probs. 35, 36-37 (1996).

FN5. See Branzburg v. Hayes 408 U.S. 665, 690, 702-703 (1972).

FN6. See Wagner, supra note 2.

FN7. Kristina Spinneweber, Branzburg, Who? The Existence of a Reporter’s Privilege in Federal Courts, 44 Duq. L. Rev. 317, 334 (2006).

FN8. David A. Kaplan & Brian M. Cogan, The Case Against Recognition of a General Academic Privilege, 60 U. Det. J. Urb. L. 205, 221 (1982-1983).

FN9. See Howard Gray Curtis, Academic Researchers and the First Amendment: Constitutional Protection for their Confidential Sources, 14 San Diego L. Rev. 876, 877 (1976-1977) (explaining that the traditional disagreements have centered on journalists rather than academic researchers).

FN10. See Kaplan & Cogan supra note 8, at 215.

FN11. Paul Nejelski & Lindsey Miller Lerman, A Researcher-Subject Testimonial Privilege: What to do Before the Subpoena Arrives, 1971 Wis. L. Rev. 1085, 1134.

FN12. See Branzburg, 408 U.S. 665 at 689.

FN13. Cusumano v. Microsoft Corp., 162 F.3d 708, 714 (1st Cir. 1998).

FN14. Judith G. Shelling, A Scholar’s Privilege: In Re Cusumano, 40 Jurimetrics J. 517, 524 (2000).

FN15. See Rebecca Emily Rapp, In Re Cusumano and the Undue Burden of Using the Journalist Privilege as a Model for Protecting Researchers from Discovery, 29 J.L. Educ. 265, 268 (2000).

FN16. See Shelling, supra note 14, at 517.

FN17. United States v. Moloney, 685 F.3d 1, 16-20 (1st Cir. 2012).

FN18. Havemann, supra note 3 at 82.

FN19. Branzburg v. Hayes, 408 U.S. 665, 667-671 (1972); Moloney, 685 F.3d at 6.

FN20. Moloney, 685 F.3d at 18.

FN21. United States v. Moloney, 685 F.3d 1, 20 (1st Cir. 2012) (Torruella, J., concurring in the judgment only) (quoting Cusumano v. Microsoft Corp., 162 F.3d at 714 (1st Cir. 1998)).

FN22. Nejkelski & Lerman, supra note 11, at 1093.

FN23. U.S. Const. amend. I.

FN24. United States v. Moloney, 685 F.3d 1, 20 (1st Cir. 2012) (Torruella, J., concurring in the judgment only) (citing Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)).

FN25. See Curtis, supra note 9, at 897.

FN26. Hannah Miller, Should a Legal Right to “Archival Privilege” be Established?, Due Process: Georgetown Law Library Blog, (February 26, 2013), http://www.law.georgetown.edu/library/blog/post.cfm/should-a-legal-right-to-archival-privilege-be-established.

FN27. Nejkelski & Lerman, supra note 11, at 1141.

FN28. See Eric M. Kraus & Arthur Palmieri, Investigating the Investigators: Balancing the Needs of Independent Researchers with Litigation Imperatives, Privacy & Data Security L. J. 659, 668 (2006).

FN29. United States v. Moloney, 685 F.3d 1, 4-6, 18-19 (1st Cir. 2012).

FN30. Petition for Writ of Certiorari, Moloney v. Holder, 2012 WL 5838450 at *7 (U.S.).

FN31. See Branzburg v. Hayes, 408 U.S. 665, 682 n. 21 (1972).

FN32. Harvey Silvergate, BC and the Belfast Project: A Scholar’s Privilege to Disobey, Forbes, (July 23, 2012, 11:48 AM), http://www.forbes.com/sites/harveysilverglate/2012/07/23/bc-and-the-belfast-project-a-scholars-privilege-to-disobey/.

FN33. Havemann, supra note 3.

FN34. O’Neil, supra note 4 at 36 (referring to the four concerns for protecting scholarly research).

FN35. Kraus & Palmieri, supra note 28 at 760.

FN36. Id. at 671.

FN37. See Farnsworth v. Proctor & Gamble Co., 758 F.2d 1545, 1546 (11th Cir. 1985)(preventing disclosure of questions regarding medical histories, sexual practices, contraceptive methods, pregnancy histories, menstrual activity, tampon usage, etc).

FN38. Brief for the Reporter’s Committee for Freedom of the Press as Amicus Curiae Supporting Petitioners at 3-5, Moloney v. Holder, No. 12-627, 2012 WL 6703006 (U.S.), at *4-*9.

FN39. See Silvergate, supra note 32.

FN40. United States v. Moloney, 685 F.3d 1, 20-21 (1st Cir. 2012) (Torruella, J., concurring in the judgment only).

FN41. See Kraus & Palmieri, supra note 28 at 674.

FN42. Katie Zezima, College Fights Subpoena of Interviews Tied to I.R.A., N.Y. Times, June 10, 2011, at A12.

FN43. Havemann, supra note 3 at 83.

FN44. Jim Dee, Death of Dolours could be a major game-changer, BelfastTelegraph.co.uk, Jan. 29, 2013, http://www.belfasttelegraph.co.uk/opinion/news-analysis/death-of-dolours-could-be-a-major-gamechanger-29041219.html.

FN45. Radio Free Eireann Interview with Anthony McInture and Ed Moloney: The Death of Dolours Price, Boston College Subpoena News (January 26, 2013), http://bostoncollegesubpoena.wordpress.com/2013/01/27/radio-free-eireann-interview-with-anthony-mcintyre-and-ed-moloney-the-death-of-dolours-price/.

FN46. Branzburg v. Hayes, 408 U.S. 665 at 707-08 (1972).

FN47. Petition for Writ of Certiorari, Moloney v. Holder, 2012 WL 5838450 (U.S.).

FN48. See Spinneweber, supra note 7 at 10-15.

FN49. United States v. Moloney, 685 F.3d 1, 18 (1st Cir. 2012) (distinguishing Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998)); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 595-99 (1st Cir. 1980).

FN50. United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983).

FN51. Reporter’s Privilege Legislation: An Additional Investigation of Issues and Implications: Hearing Before the Committee on the Judiciary United States Senate; 109th Cong. 6 (2005) (statement of Hon. Chuck Rosenberg, U.S. Attorney for the S. D. of Tex.) (stating that the Governmental interest includes enforcing federal criminal law, protecting national security, protecting vital secrets, and protecting public safety).

FN52. United States v. Moloney, 685 F.3d 1, 21 (1st Cir. 2012) (Torruella, J., concurring in the judgment only) (citing UK-MLAT Technical Analysis, S. Exec. Rep. No. 104-23, at 11).

FN53. Bert Black, Research and Its Revelation: When Should Courts Compel Disclosure?, 59 Law & Contemp. Probs 169 at 179 (1996).

FN54. Id. (referencing In re Grand Jury Subpoena Dated January 4, 1984, 750 F.2d 223 (2d Cir. 1984)).

FN55. Curtis, supra note 9, at 888-889.

FN56. Cusumano v. Microsoft Corp., 162 F. 3d 708 at 712 (1st Cir. 1998).

FN57. See Radio Free Eireann Interview with Anthony McInture and Ed Moloney: The Death of Dolours Price, Boston College Subpoena News (January 26, 2013), http://bostoncollegesubpoena.wordpress.com/2013/01/27/radio-free-eireann-interview-with-anthony-mcintyre-and-ed-moloney-the-death-of-dolours-price/

 

Judge Says He Will Not Unseal Records of Boston College’s Belfast Project

Judge Says He Will Not Unseal Records of Boston College’s Belfast Project
Andy Thomason
Chronicle of Higher Education
June 4, 2014

A federal judge said on Tuesday that he would not unseal records related to the Belfast Project, Boston College’s oral history of the conflict in Northern Ireland, The Boston Globe reported.

Judge William G. Young of the U.S. District Court in Boston said during a hearing that he did not have transcripts from the project but had only reviewed them and returned them to the college. NBC News sought the release of the documents in May.

The project has been the subject of controversy since the U.S. Justice Department demanded some interviews, which had been conducted anonymously, on behalf of the police in Northern Ireland, who were investigating a decades-old murder. Researchers involved in the project fought the release of those records, saying that they would expose sources who had participated only after being guaranteed that the interviews would not be released until after they died. Some records were turned over in 2012 as a result of a court order.

The researchers also opposed NBC News’s request to unseal the records, citing the same concern. Justice Department officials also opposed the release of some records, including affidavits and other information about the continuing investigation into the murder.

Judge Young said on Tuesday that he would release some sealed documents unrelated to the investigation, mostly legal arguments.

Judge won’t unseal records in Belfast Project case

Judge won’t unseal records in Belfast Project case
Milton J. Valencia
Boston Globe
June 03, 2014

Police in Northern Ireland last month arrested Sinn Fein leader Gerry Adams for questioning in connection with the killing of Jean McConville. He was released and has denied being involved.

A federal judge decided today to keep records related to the controversial Boston College Belfast Project case under seal, saying they relate to an ongoing criminal investigation in Northern Ireland.

The decision was, in part, a response to a request by NBC News to unseal transcripts of the controversial project, which has made international headlines.

US District Judge William G. Young said he did not have most of the transcripts in his possession. He had only reviewed copies of them, and then returned them to Boston College.

He refused to unseal the few transcripts that he did have, but agreed to turn over other records that had been sealed. Those records mostly consisted of legal arguments.

The request had been opposed by researchers involved in the Boston College project.

Young had first ordered Boston College in 2011 to turn over certain interviews collected under the Belfast Project, an academic project on the Troubles, the decades-long conflict between those who would unite Northern Ireland with the Republic of Ireland and those who want it to remain within the United Kingdom.

The United States government sought the interviews on behalf of the United Kingdom, which continues to investigate crimes committed at the time of the Troubles, including the murder of Jean McConville, whom the Irish Republican Army suspected of being an informant.

Some of the interviews were with former members of the IRA, who agreed to speak to the journalists under the condition of anonymity, under an agreement that the interviews would not be released until after they died.

US Department of Justice officials had also opposed the unsealing certain records, such as affidavits and characterizations of the investigation, saying the investigation is ongoing. Police in Northern Ireland last month arrested Sinn Fein leader Gerry Adams for questioning in connection with the killing of McConville. He was released and has denied being involved.

“It is critical to the United States that we be able to work with our partners abroad, that we can obtain information for them without compromising the integrity of an investigation,” John McNeil, the First Assistant US Attorney in Massachusetts, said. “There is an ongoing investigation in the United Kingdom, and the United Kingdom has asked us to maintain the integrity of that investigation.”

Chris Bray: BC, NBC, and the PSNI

The PSNI Arrives on Tuesday for a Monday Lunch
Chris Bray
Friday, May 30, 2014

They’re too late.

The Police Service of Northern Ireland recently announced that they intended to make a broader MLAT request for every interview from the Boston College oral history collection they first began to mine in 2011. But Boston College also announced that it intended to return interviews to the former members of Northern Ireland paramilitary organizations interviewed for the university’s Belfast Project. For a while, it appeared that the PSNI’s announcement trumped BC’s announcement: The news that more subpoenas were on the way would prevent the return of interviews.

For at least one Belfast Project interviewee, however, that’s not what happened. Whether or not the PSNI gets the U.S. Department of Justice to subpoena the Boston College archives again, some of the interviews are out of their hands forever. They have already gone home.

Take a look at this remarkable set of documents that was posted on Pacer, the federal court system’s document website, on Thursday:
NBC O’Rawe from PACER

Of particular interest are pages 3 and 4 of the PDF file, a May 1, 2014 letter from Jeffrey Swope, Boston College’s outside lawyer for matters involving the Belfast Project, to Kevin Winters, the Belfast-based solicitor who represents former IRA member and Belfast Project interviewee Richard O’Rawe. Swope details a long list of documents and audiotapes that he is returning to O’Rawe through the offices of KRW Law, Winters’ Belfast law firm. They are all of O’Rawe’s interviews — tapes and transcripts — except the ones that the PSNI already received on account of the 2011 subpoenas. Also returned: O’Rawe’s complete correspondence with the Belfast Project. There’s nothing left but the material that police already have.

I don’t know if material from other interviewees has already been sent back to them. Boston College and Jeffrey Swope have long since stopped responding to questions from me, and other people who would know about the return of interviews are either not responding to messages or not saying. (And I wouldn’t respond to the questions I’m asking them, either, if our positions were reversed.) But if Boston College began returning interviews, there’s no reason for them to have returned interviews to Richard O’Rawe but not to other interviewees, some of whom have been asking for the return of their interview material since shortly after the 2011 subpoenas arrived.

Bottom line: At least one interviewee has beat the PSNI to the archive, and maybe more. (Interviews that are unlikely to have been returned, and that are unlikely to ever be returned, are those for which Boston College has lost identifying material. So the PSNI may still be able to get its hands on interviews with unidentifiable research subjects, the legal value of which will be limited.)

Meanwhile, the political floor is beginning to give way beneath the PSNI’s effort to treat the Troubles as ordinary crime.

The likelihood of a successful PSNI / DOJ return to the Belfast Project archives is rapidly fading.