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

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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/

 

Hunger strike episode important in explaining reaction to Boston College project

Hunger strike episode important in explaining reaction to Boston College project
The story is about who controls the narrative of the IRA’s part in over 30 years of violence in the North
Ed Moloney
Irish Times
Tue, May 20, 2014

In his seminal account of the 1981 IRA hunger strikes, Afterlives, Richard O’Rawe writes that when, in 1991, he canvassed the idea that he might go public with his story of what really happened during the protest, that someone close to the Sinn Féin leadership told him, “as a friend”, that if he did, he could be shot. He wrote: “While he never used the words ‘shot dead’, I nonetheless felt that that was implicit in his warning” (p66). And so, fearful of the consequences, he kept his mouth shut.

And he did, for over 10 years, until the Boston College project reached out to him and he agreed to be interviewed about his role as public relations officer for the IRA inmates during the protest. He found the interviews such a liberating experience that, against my advice that his safety could be at risk, he wrote Blanketmen, his first book about the prison protest. If I had had my way Richard O’Rawe’s story would have stayed secret until his death. But he was insistent it be told.

O’Rawe’s account of the hunger strike gave an entirely different account of events from the one peddled by the Sinn Féin leadership, which placed responsibility for all the deaths on Margaret Thatcher. In O’Rawe’s account the late prime minister was responsible for just four deaths, the republican leadership for six.

Essentially, O’Rawe’s story, which in subsequent years was substantially confirmed by contemporary British documents released in response to his books, went as follows. In July, 1981, after five months of protests and four deaths, the British offered to concede a majority of the hunger strikers’ demands. O’Rawe and his immediate superior, the IRA jail commander, Brendan McFarlane, recommended that the fast should end but they were overruled by Gerry Adams; the hunger strike continued and a further six prisoners went to lingering, painful deaths. (This has been denied by Brendan McFarlane and senior Sinn Féin figures such as Gerry Adams and the then Sinn Féin publicity chief Danny Morrison).

Motive

So what was the motive for overruling the prisoners’ leaders? One possible reason was that a continuation of the hunger strike helped ensure the success of Owen Carron in that August’s Westminster byelection in Fermanagh-South Tyrone caused by Bobby Sands’s death.

That was because preserving the hunger strike also kept in place a deal with the SDLP not to intervene electorally in the constituency, thereby avoiding a split in the nationalist vote to the unionists’ advantage. Carron’s win was entirely dependent on IRA prisoners still being on protest when polling happened. Had the prisoners accepted the British offer, the SDLP would have fielded a candidate and Carron would have lost.

Instead Carron’s victory paved the way for Sinn Féin’s electoral strategy and set in motion forces that, as I write, have placed Sinn Féin on the cusp of government on both sides of the Border.

That July 1981 episode thus assumes critical historical importance. Arguably it also explains why O’Rawe was warned to keep his mouth shut in 1991, why he was so badly abused when he did make his story public and why Sinn Féin, and those like Dr Martin Mansergh (“Adams episode sounds warning on peace process”, Irish Times, May 7th, 2014) who recycle Sinn Féin’s talking points, are so agitated about the Boston College project.

The truth is that without the Boston College project this crucial chapter in modern Irish history would have been buried – perhaps disappeared is a better word – and hidden from view at the point of a gun. The only account to survive would be the one that suits Sinn Féin best, the version that heaps all the blame on Thatcher and keeps the focus well and truly off the Sinn Féin leadership.

This story, and the Sinn Féin-led offensive against the Boston project, is about more than the character of the man who might be Ireland’s next tánaiste, although it is surely that as well. It is about who controls the narrative of the IRA’s part in over 30 years of violence in the North.

Just as Adams wishes the world to believe that he was never in the IRA, so he also wants those like Richard O’Rawe who dare challenge his control of that narrative, his version of events, to remain silent.

The current campaign of intimidation led by Sinn Féin against the Boston project is really aimed at anyone tempted to imitate our efforts by trying to explore the reality behind the propaganda.

Hypocrisy

Mansergh accuses the Boston project of hypocrisy when I wrote that it was carried out in a “professional and detached” way. But when Dr Anthony McIntyre approached Richard O’Rawe – and others – for an interview he carried a tape recorder in his hands, not a pistol behind his back. We sought accounts about life in the IRA in interviews freely given by former activists motivated only by a desire to tell the truth as they saw it. Our crime was to unearth some accounts that were inconveniently at odds with the version of history that Sinn Féin wishes the world to believe and we interviewed people such as Brendan Hughes and Dolours Price who would be central in any narrative about the IRA. Not to have interviewed such people would have been remiss beyond words.

The logic of Mansergh’s critique of the Boston project is unavoidable. Should anyone wish to imitate our project, the potential interviewees should be asked one of two questions: do they believe Gerry Adams was in the IRA? Or, do they give unequivocal support to the peace process?

If they answer “Yes” to the first, and “No” to the second, or even hesitate in their answer (after all, one can favour peace, but dislike the process), then they will be excluded from recording their memories since they are, in Mansergh’s view, likely to be motivated by malice towards Adams or the policies he has helped put in place. Only in such a way can subversive, anti-peace sentiment be prevented from contaminating historical research.

That is the history telling of totalitarianism.

Northern Ireland seeks all Belfast Project interviews

Northern Ireland seeks all Belfast Project interviews
Peter Schworm
Boston Globe
May 23, 2014

Boston College will contest a new legal bid by British law enforcement to seize the entire trove of interviews from the university’s Belfast Project, university officials said Friday, joining a renewed battle over the controversial archive.

In a statement Thursday, the Police Service of Northern Ireland said it would seek to obtain the collection of interviews with former members of militia groups that clashed during the decades-long conflict known in Northern Ireland as the Troubles. But police did not specify a course of action or timetable.

“Detectives in Serious Crime Branch have initiated steps to obtain all the material from Boston College as part of the Belfast project,” the Police Service said. “This is in line with PSNI’s statutory duty to investigate fully all matters of serious crime, including murder.”

A spokesman for Boston College said Friday that the university had not received any information about the move to acquire the archives. But the spokesman said the blanket request for all materials, including interviews with more than a dozen members of a militia group loyal to Britain, seemed aimed at rebutting critics who have accused British authorities of using the archives for political purposes.

“The [Police Service of Northern Ireland] has been criticized for only pursuing the interviews of former IRA members,” said spokesman Jack Dunn. “This appears to be an attempt to deflect criticism that their actions were politically motivated.”

A spokesman for the Police Service declined to comment.

From 2001 to 2006, researchers interviewed former members of the Irish Republican Army, who sought a united Ireland, and former members of the Ulster Volunteer Force, a paramilitary group that wanted Northern Ireland to remain part of the United Kingdom.

Dunn said Boston College would fight to protect the interviews and hoped that US authorities would reject the legal request.

“Since the first subpoenas were issued in 2011, Boston College has pursued legal, political, and diplomatic efforts to oppose the effort of British law enforcement to obtain the interviews in an effort to protect the enterprise of oral history and the peace agreement in Northern Ireland,” Dunn said. “We will continue to do so and hope that the State Department and the Department of Justice will reject this latest request.”

A spokeswoman for the US attorney’s office in Massachusetts declined to comment.

Former militia members consented to interviews for the oral history project with the assurance that their statements would be kept confidential until their death. But Northern Ireland authorities, using a mutual legal assistance treaty with the United States, pursued the interviews as potential evidence of past crimes.

The treaty requires the nations to share information that could aid in criminal investigations.

After a lengthy court battle, Boston College was compelled to hand over 11 interviews with former members of the Irish Republican Army, leading to the recent arrest of Gerry Adams, the leader of Sinn Fein, in connection with the notorious 1972 killing of Jean McConville.

After being released without charges earlier this month, Adams said interviews from the oral history project formed the basis for his arrest. Adams has denied any involvement in the killing of McConville, a mother of 10 who the IRA believed was an informer.

McConville was abducted and secretly buried. Years later, the IRA admitted responsibility for her death.

Information from the interviews also led to the arrest of Ivor Bell, a former IRA member who was charged in the slaying of McConville.

The arrests have led to criticism that Northern Irish authorities are exploiting the archives to cause political damage to Adams and Sinn Fein, the former political arm of the Irish Republican Army. Adams has criticized researchers for focusing on former IRA members who became critics of Adams and the peace process.

After Adams’s arrest, Boston College said it would return interviews to any participants who requested them and would not keep copies. Several people had already made requests.

Ed Moloney, an Irish journalist who led the project, blasted the British authorities’ latest bid to obtain the archives.

“I call upon the US government to resist this fishing expedition by the PSNI and to remember that the major consequence of this bid to invade an American college’s private archive will be to undermine a peace deal that was in no small way the product of careful American diplomacy and peace building,” he wrote on his blog.

“I also call upon Boston College to vigorously resist this action and to rally the rest of American academe in the cause of research confidentiality,” he wrote.

NBC News has also requested that previously subpoenaed materials be unsealed, writing that “any case involving incidents of terrorism and criminality . . . is a matter of great public interest.”

Sarah Wunsch — staff attorney at the American Civil Liberties Union of Massachusetts, which backed two project researchers in their effort to protect the interviews — called on American authorities to reject the police request.

“I think it’s time for the US government to call a halt to this, which is not only damaging to oral history and academic freedom, but also immensely damaging to peace in Northern Ireland,” she said.

Moloney Statement On PSNI Threat To Boston Archive

Ed Moloney with a statement in response to the British PSNI moving to raid the remainder of the Boston College oral history project. It featured on The Broken Elbow today 22 May 2014.

I call upon the US government to resist this fishing expedition by the PSNI and to remember that the major casualty of this bid to invade an American college’s private archive will be to undermine a peace deal that was in no small way the product of careful American diplomacy and peace building. The United States has the power to invoke vital foreign policy interests in order to reject this PSNI action.

I also call upon Boston College to vigorously resist this action and to rally the rest of American academe in the cause of research confidentiality. It is no accident that this move comes hard on the heels of BC’s spokesman Jack Dunn’s public announcement that interviews could be returned. This action by the PSNI raises serious questions about the motivation and control of the police in Northern Ireland. Those in the PSNI who took and approved this decision could hardly have been unaware of the grave political consequences of their planned action.

Boston College tapes: US network NBC launches legal bid

Boston College tapes: US network NBC launches legal bid
Andy Martin
BBC Ireland Correspondent
BBC News

The American news network, NBC, has made a formal request to have transcripts from Boston College’s Belfast Project released.

Its news investigations team made the application to a US Judge, William Young, who is one of the few people to have read the entire archive.

Information from the recordings has led to a series of arrests, including that of Sinn Féin president Gerry Adams.

The project was designed as an oral history of the Troubles.

Dozens of former paramilitaries from the IRA and the Ulster Volunteer Force gave candid interviews to researchers employed by the university, on the understanding that their involvement would not be made public until after their deaths.

“I am furious that a news agency is trying to expose sources. I am extremely hostile to this action.”
Anthony McIntyre
Lead researcher, Boston College oral project

The course director, journalist Ed Moloney, published a book based on two of the accounts given to the project, after the interviewees had died.

However, the PSNI became aware of the existence of the tapes.

They used a treaty between Britain and the United States to obtain any material that could help their investigation into the murder of Jean McConville in 1972.

Mrs McConville is the best known of The Disappeared, a group of people abducted, murdered and secretly buried by republicans.

The researchers fought the release of the interviews through the US courts, maintaining that it would represent a breach of contract and trust, and violate the ethical code on the protection of sources.

Judge Young, who read the archive in order to determine which testimonies made reference to Mrs McConville, acceded to the PSNI request.

He did, however, describe the project as “a bone fide academic exercise of considerable merit”.

‘Furious’

Dr Anthony McIntyre, who conducted the interviews with former IRA members, said he was shocked to learn that a news organisation had attempted to have the documents released.

Mr McIntyre has been made aware of threats to his life as a result of his involvement in the project.

He said he could not understand how a news organisation could be prepared to violate the code on the protection of sources.

“I am furious that a news agency is trying to expose sources,” he said. “I am extremely hostile to this action.”

The real threat to peace in Northern Ireland

The real threat to peace in Northern Ireland
Ed Moloney
Special to The Globe and Mail
Published Saturday, May. 10 2014

History, Stephen said, is a nightmare from which I am trying to awake – James Joyce, Ulysses

The past is certainly proving to be a nightmare for long-time republican Gerry Adams, whose arrest last week has left Northern Ireland’s peace process in crisis.The dramatic turn of events – he has been released after four days in custody but may still face charges related to a murder that took place almost 42 years ago – raises important questions. Is the failure of Northern Ireland’s peace pact to deal with the sins of the past the real reason for the current crisis? And, by refusing to acknowledge the true nature of his background, did Mr. Adams bring this on himself?

For most of the quarter-century or so during which I reported on the violence, it was an accepted truth among nearly all my colleagues that, like the Middle East, this dispute was impervious to a peaceful resolution. It would go on, we reckoned, forever.

British troops had patrolled the streets of Belfast and the pretty lanes and byways of counties Tyrone and Armagh since 1969 and, while the carnage had declined from the bad, early years, the warring groups – the Irish Republican Army (IRA), which fought to reunite the north with the rest of Ireland, and Protestant paramilitaries that killed to keep it under the Union Jack – had stubbornly resisted all efforts by the British security forces to extinguish them.

The death toll surpassed 3,000 – equivalent (given that the population was just 1.5 million) to 600,000 in the United States and 70,000 in Canada, and large enough to be regarded as a civil war in most countries. The Troubles, as we Irish called the conflict, had touched nearly everyone. There was hardly a person in the place who had not had a family member, a friend, an acquaintance killed or injured, imprisoned, forced to flee their homes or affected in some way.

The political leaders of the divided Catholic and Protestant communities were as immovable as their paramilitary brethren. If anyone symbolized their inflexibility, it was the towering Ian Paisley, who seemed to roar “No!” to almost every suggestion for moving out of the morass.

And then suddenly the ice moved and cracked and things began to change. Of course, it had not happened suddenly, just out of view. Behind the scenes and for several years, unknown even to their supporters, leaders of the paramilitary groups had started to talk about peace.

Prime among the groups doing this was the IRA, whose political wing, Sinn Fein (Irish for We Ourselves), glimpsed the possibility of political gains if the violence ended.

In 1994, an IRA ceasefire was called. It broke down briefly, was restored and, in 1998, with the direct assistance of the U.S., British and Irish governments, the political parties brokered the Good Friday Agreement.

The Troubles had come to an end – or so it appeared.

The peace pact foresaw a power-sharing government in Belfast, a complete end to violence and the destruction of paramilitary arsenals, the release of prisoners and a new policing arrangement, one that was more acceptable to Catholics.

It took another eight long, hard years of negotiating to put all the pieces in place. Eventually the IRA agreed to decommission its weapons, and its political leaders accepted the new police. Strangely, or not, the two most extreme parties, Sinn Fein and Ian Paisley’s Democratic Unionist Party, had gained most from the new dispensation, by now officially termed “the peace process.” Gorged with votes and now the dominant representatives of their communities, they formed the senior partners running the new government.

And so the world – and Northern Ireland – was treated to the extraordinary sight of Martin McGuinness, a former IRA commander, and Ian Paisley, the “Mr. No” of local politics, in the two top jobs. A photo of them in 2006 seated side by side and grinning like Cheshire cats earned them the sobriquet, “the chuckle brothers.” The seemingly impossible and unthinkable had happened. Everything seemed rosy.

Who did what to whom

Fast-forward eight years, and not only does the future look less promising but it is the past that dominates. An almost daily squabble about who did what to whom, why, what happened and – most crucially – who should be brought to book and how, permeates both media coverage and the political discourse.

When constructing this most complex of peace deals, much thought and more energy were expended on how to remove the most obvious obstacles, like IRA guns or agreement on the policing of Northern Ireland, and almost none on how to resolve the unanswered questions of the past and, more important, how to bring solace to victims and the relatives of those killed.

That failure is now exacting a possibly destructive cost on the peace process. And in the wings are armed groups opposed to the accords, hoping for the worst.

It is in this context that the arrest of Mr. Adams, Sinn Fein’s longtime leader, has hit the headlines, complicating an already difficult problem.

Dealing with the past was prominent in my mind back in 2000 and 2001 when I was approached by a Belfast academic on behalf of Boston College with a proposal. The college library had a gap in its collection; there was almost nothing dealing with the conflict on its shelves. Did I have any ideas? College funding could be available.

For some time it was clear to me that the war in Ireland was coming to an end and someone had to think about making sure it was chronicled properly. When conflicts draw to a close, the accounts of what happened and why are invariably written by the winners and leaders who always have axes to grind and reputations to preserve or reshape.

Seldom do the activists at the bottom, those involved in the bloody cutting edge, get to tell their stories. The Irish government in Dublin had collected stories from IRA activists involved in the 1916-1921 War of Independence; the project had started in the late 1930s with publication postponed in case the stories had an inflammatory effect in the north. Only with the peace did these accounts start to emerge.

It was doubly necessary to do the same in Northern Ireland because of the length of the conflict, over 30 years. Those who had been 20 at the start were now middle-aged; those in their thirties and forties were approaching death. If it wasn’t started soon, it might be too late.

Boston College agreed. I also stressed the need for legal safety. The archive might not be immune to an American subpoena, but why would any U.S. law-and-order agency be interested in events in Ireland? It was the British we had to worry about.

The college agreed on one principle: Nothing would be allowed into the archive if it was at risk. Contracts we drew up giving the interviewees “ultimate” control over their tapes and transcripts until their death had been, we were assured by the college, vetted and approved by its lawyers. After the deaths of those interviewed, the material became the property of Boston College, to do with as it wished.

Sadly, we had been misled. College lawyers now admit they never examined the contracts, and the librarian who gave us the assurance has departed his post. The damage was done, though.

The U.S. and Britain have a treaty that allows the exchange of alleged criminal evidence, and it was invoked to obtain interviews conducted for the project. This was a disaster but also ironic; we had been happy working with a U.S. college because America was considered neutral by both sides. None of our interviewees or researchers would have trusted a British or Irish university to keep things secret.

But back to 2001 and the project’s beginnings. The first archive dealt with Irish republicans, primarily but not exclusively with the IRA. Another principle behind the project was unique. I had decided that the sensitivity of the subject made it impossible to use conventional oral-history researchers; they wouldn’t know whom to interview or what to ask, and the participants simply would not trust them. So we would need to recruit former combatants who were academically qualified – and, crucially, trusted and knowledgeable. Anthony McIntyre, an ex-member of the IRA who spent 18 years in prison, had later earned a doctorate in political science and his thesis dealt with the IRA in the 1970s. He was an ideal candidate.

We also started an archive dealing with the Ulster Volunteer Force (UVF), a ferocious pro-British, Protestant group that killed many people, mostly Catholics, often in awful ways. It, too, was part of the story, and we hired Wilson McArthur, a politics grad from a pro-UVF family. There also were plans to create an archive for the police, but the promised funding dried up.

By 2006 we had created a valuable archive from both sides of the conflict. While small – perhaps 40 interviewees altogether – it was unique and contained insights that would be valuable to historians.

That is when the college suddenly stopped funding. It had asked us to alter the terms of the contract to allow publication while the interviewees were still alive, and we’d refused. A few weeks later, the cheques stopped. We never did understand why but disappointment at our response was clearly a possibility.

IRA leadership a greasy pole

At the outset of the project, we faced a tricky dilemma. The UVF leadership had no problems co-operating with the researchers, but the IRA’s command would never have allowed its rank and file to take part. So it had to be kept in the dark.

The IRA is a much more controlling organization, and no one more so than Gerry Adams. He has been the president of Sinn Fein since 1982 and a member of the IRA’s leadership since the early 1970s. The IRA is a very greasy pole and to stay at the top as long as he has requires particularly sharp claws.

For reasons that even seasoned observers cannot understand, Mr. Adams decided, when the peace process began to get serious, to deny any and all association with the IRA. Now, while it is customary for members never to admit belonging to the IRA, not least because that would mean a jail term, they never deny it, either, because to do so means disowning their beliefs. If asked, IRA members usually refuse to comment or tell reporters to mind their own business.

Mr. Adams decided to deny his past completely, the first ever to do so. It may turn out to be the greatest mistake of his career.

To many of those in the IRA who had killed or maimed and gone to jail for lengthy terms, it looked as though he was seeking respectability, as the peace process brought him into the White House, to Hollywood and to the homes of the rich and powerful in the U.S. and elsewhere. Meanwhile they lingered in Belfast, disowned by their leader and with little to show for years of fighting.

One of those most upset was the late Dolours Price, famous for having led a bombing team that devastated the centre of London in 1973. Caught and jailed, she then embarked on a hunger strike for more than 200 days, kept alive by force feeding and nearly succumbing to anorexia.

“We had worked so closely with him and taken orders from him on many occasions,” she told a reporter in 2010 (three years before her death), “and then to deny us … we were offended that he chose to deny us as much as he chose to deny belonging to the IRA. He is a liar.”

Also irate was Brendan Hughes, who had been in a leader of the Belfast IRA with Mr. Adams and was, in the 1970s, his closest friend. He agreed to be interviewed for the archive, telling Mr. McIntyre the denial “means that people like myself … have to carry the responsibility for all those deaths, for sending men out to die and sending women out to die, and Gerry was sitting there … trying to stop us from doing it? I’m disgusted by it because it’s so untrue and everybody knows it.”

Mr. Hughes and Ms. Price were both privy to, or involved in, the case that led to Mr. Adams’s arrest: perhaps the most pitiless murder of the Troubles.

It took place in December, 1972 – less than a year after the infamous “Bloody Sunday” killings of Catholic marchers in Londonderry. Jean McConville, a 37-year-old widowed mother of 10 accused by the IRA of informing to the British Army, was abducted from her West Belfast apartment, shot and buried in an unmarked grave across the border. Her children were left to fend for themselves, and her body was not found for 31 years.

In his interview for the archive, Mr. Hughes said that Mr. Adams had given the order – a claim that he asked be kept confidential while he was still living. When it became public in my 2010 book, Voices From The Grave (he had died two years earlier), Ms. Price, who hadn’t mentioned the killing to the college, admitted that she had helped to ferry Mrs. McConville to the republic on Mr. Adams’ instructions.

Arrest is badly timed

In the wake of such revelations, police in Northern Ireland asked the U.S. Department of Justice to serve subpoenas on Boston College. They wanted the Hughes and Price interviews and, last fall, after a lengthy and controversial legal battle marked by conflict between the college and Irish researchers, finally got them.

This led to the arrest of Mr. Adams, which could not have come at a worse time for the peace process.

Months of squabbling over the past between the Irish political parties persuaded Washington to intervene. Last December, former State Department official Richard Haass was dispatched to Belfast to try to broker an agreement that would satisfy victims and allow Northern Ireland to move on. His efforts failed largely because the pro-British parties balked. Some suspect they knew the Adams arrest was possible, and were delighted.

Whatever the truth, the Sinn Fein leader has been released while prosecutors decide whether to charge him. It will be an anxious wait, both for him and for the country. Either way, the decision will cause a row. If he is released, Protestant parties will allege a cover-up; if he is charged, the power-sharing government will be under threat.

None of this would have had happened had the architects of the Good Friday Agreement invested as much political capital in devising a satisfactory way of dealing with Northern Ireland’s bloody past as they did with the accord’s other elements. It a salutary lesson for peacemakers everywhere: History matters; if not addressed, it poisons the present and pollutes the future.

Ed Moloney is an award-winning Irish journalist and author now based in New York.

Gerry Adams arrest: surrender of interview tapes has dealt ‘blow’ to research

Gerry Adams arrest: surrender of interview tapes has dealt ‘blow’ to research
By David Matthews
Times Higher Education
1 May 2014

Researcher on Boston College project criticises pursuit of recordings

The handing over of research that appears to have led to the arrest of Sinn Féin leader Gerry Adams has dealt a “death blow” to academic work in the US involving confidential interviews.

That is the view of a key member of the university team that recorded the Boston College interviews that police have pursued as part of their investigation into an IRA killing.

The Sinn Féin leader was arrested yesterday and questioned by Northern Ireland police over the 1972 murder of Jean McConville, which he has long denied having any role in.

His arrest comes after the release to police of parts of interviews with Irish Republican and Loyalist paramilitaries conducted for a research project by academics at Boston College.

Two of the former paramilitaries interviewed for the tapes implicated Mr Adams in the murder of Ms McConville, although it is thought both had fallen out with the Sinn Féin leader.

Boston College academics fought unsuccessfully through the courts keep the tapes private.

Speaking about Mr Adams’ arrest, Ed Moloney, an Irish journalist who was one of the researchers in the Boston project, said that the “damage” was “done” to academic freedom.

“The whole process of conducting academic research in the United States of America on sensitive subjects with confidential sources has been dealt a death blow by the Obama Department of Justice,” he told the Boston Globe.

“It’s a disaster in Ireland, as well, because it means people are not now willing to sit down in front of a tape recorder and tell the truth about what happened.”

Sinn Fein Boss Gerry Adams Wanted This Murder Bust

Sinn Fein Boss Gerry Adams Wanted This Murder Bust
Ed Moloney
Daily Beast
World News
05.01.14

The killing of a widowed mother of 10 has been hanging over Gerry Adams for 40 years. His arrest is a calculated gamble to clear his name—and began with the Obama Justice Department.

It was, nearly everyone agrees, one of the most cold-blooded and pitiless killings in Northern Ireland’s 30-some years of bloodshed and conflict.

Now, 42 years later, it threatens to place Gerry Adams, the man most responsible for ending the IRA’s brutal violence, behind bars for murder and put the Obama Justice Department in the dock for endangering a prized monument to American diplomacy and peace-building.

On a cold December evening in 1972, 37-year-old Jean McConville, a recently widowed mother of 10 young children, was with her family in their cramped apartment in Divis Flats, a working-class housing project on the edge of Catholic West Belfast, when the door was forced open and a gang of masked young women burst in and dragged her away.

Her crying children were left to fend for themselves for weeks, begging and stealing food, until eventually the local social services were alerted to their plight and they were sent to foster homes. The children were never to be reunited again as a family.

Their mother’s fate was worse. The women who burst into her flat were from the female branch of the Irish Republican Army (IRA), which had been fighting the British army and government for two years to reunite Ireland and achieve full independence from Britain. West Belfast, and the Divis Flats in particular, was one of the IRA’s toughest strongholds.

The IRA women had come for Jean McConville because they believed she had been acting as an informer, passing on low-grade intelligence to the local British army barracks about local members of the IRA. A small radio transmitter had been found in her apartment, and she had been arrested by the IRA and admitted her involvement.

But a local IRA commander had given her one last chance. Brendan Hughes, a veteran IRA activist, told this writer that he had given McConville “a yellow card,” a soccer term that means another offense would result in “a red card,” or an ejection. But in the IRA’s case, “a red card” always meant death.

McConville’s family and the vast coterie of supporters who champion her cause bristle at the accusation, pointing out that a mother of 10 would hardly have time to gather intelligence on the IRA. Instead they say she was killed for giving aid to a wounded British soldier and that local people disliked her because she had been a Protestant until marrying her Catholic husband, when she converted. An inquiry headed by the Police Ombudsman, a sort of referee figure, came down against the informer allegation.

Whatever the truth, the IRA claimed to have evidence that McConville had ignored the “yellow card” warning and had resumed her treacherous activities.

What happened next, according to Hughes, sealed her fate. In the fall of 1972, the IRA in Belfast was commanded by Gerry Adams, regarded inside the IRA as the brightest strategic mind in the organization. He was also, Hughes said, a man who was very media savvy.

If the British put Adams on trial, his hardline opponents’ accusations of naiveté or selling out will be justified and the peace process will be seriously undermined.

A meeting was held of the top IRA leaders in Belfast with only one item on the agenda: what to do with McConville. Those present agreed that the penalty for informing had to be death. The only point of dispute was what to do with her body. Normally the IRA advertised the execution of traitors; the dead bodies of informers would be left in the open, “thrown in the street,” as the phrase had it, as a warning to others tempted to go down the same road.

But admitting that the IRA had killed a widow and mother of 10 was a potential public relations disaster. The media would be appalled and the British delighted. Much better, some IRA leaders argued, to kill her and hide the body, bury it in a secret grave, South American-style, so no one would ever know what had really happened—except the IRA leaders themselves.

The decision came down to “disappear” McConville. Hughes, who also gave the same testimony to Boston College’s oral history archive, said Adams agreed with the order.

And so McConville, believing she was in the hands of a Catholic charity and safe from the IRA’s vengeance, was taken across the Irish border by members of a special IRA unit called “The Unknowns,” so called because the authorities were unaware of their existence.

The unit was, according to Hughes, answerable to Adams, the Belfast commander. And so, Hughes said, the order to disappear McConville came ultimately from Adams.

McConville was taken to Dundalk, a small town just across the Irish border, held for a few days and then taken to a lonely beach at Carlingford Lough, one of Ireland’s most picturesque spots,. At the edge of an already excavated grave a single bullet was fired into the back of her head and she fell lifeless into the hole. There she lay until 2003, when a member of the public walking the beach noticed a bone sticking out of the sand.

One of “The Unknowns” who had ferried McConville to Dundalk was Dolours Price, a strikingly attractive member of a renowned Belfast IRA family. Price had joined the IRA in 1971, inspired by an aunt who had been blinded and who lost both hands in an accidental IRA explosion in 1938. Dolours Price would later gain infamy as the leader of a bombing team that devastated London in 1973.

Arrested and imprisoned, she then embarked on one of the lengthiest hunger strikes in British prison history, during which she was force-fed so often she developed life-threatening anorexia and nearly died. Released from jail, she left the IRA, married the movie star Stephen Rea, and had two sons, settling down in an affluent part of Dublin.

But she never lost her Irish Republican beliefs. When Adams concluded secret negotiations with the British, U.S., and Irish governments that resulted in an IRA ceasefire and the acceptance by the IRA’s political wing, Sinn Fein, of the existence of Northern Ireland along with government posts for Adams’s colleagues, Price sensed betrayal.

She had ferried more than McConville to secret graves, and the burden of what she had done took its toll. Like Hughes, Price was interviewed for the Boston College archive, but she kept silent about McConville. When Hughes’s interviews were made public, however, she decided to break her silence and gave a number of newspaper interviews claiming that Adams had ordered McConville to be “disappeared.”

It is these two sets of interviews that form the core of the case against Gerry Adams, that the architect of the IRA’s peace strategy was an Irish Pinochet, responsible for the “disappearing” of innocent victims.

A British government effort to subpoena the interviews held in the Boston College archive has worsened Adams’s dilemma. The archive, begun in 2001, gave interviewees a promise that their memories would stay secret until they died, but a legal loophole created by an international treaty gave the British access to the trove. After nearly three years of legal battles, last fall several other interviews were handed over to the police in Northern Ireland. In March the police moved, arresting Ivor Bell, Adams’s closest confidant in 1972, in effect his No. 2, and charged him with aiding and abetting the McConville killing.

The arrest reignited a firestorm of speculation and controversy over Adams’s role. If Bell had been involved as the police alleged, then what role did the No. 1 play? As the firestorm raged, Adams issued a challenge to the police: “If you want to question me about McConville, then here I am. I will be happy to answer your questions.”

On Wednesday, Adams surrendered himself to the police for interrogation in what is undoubtedly the biggest gamble in his political life.

The McConville allegations have been like a monkey on his back for the best part of a decade. His party, Sinn Fein—Irish for “We Ourselves”—is well placed to enter government in Dublin at the next election, but his opponents have a potent weapon to use against him: his alleged role in the disappearance of McConville. He badly needs to throw the monkey off his back, and that explains his extraordinary move in giving himself up to the police.

It is a calculated gamble. Two of those who claim he gave the order to kill McConville, Hughes and Price, are dead. (Hughes died in 2008, Price in January 2014.) And anyway, their evidence is hearsay and can’t be used to charge, much less convict, anyone.

So if Adams can hold out for the days of interrogation that lie ahead, there is a good chance he can come out of police custody, declare himself an innocent man who answered police questions truthfully, and finally throw the monkey off his back.

There is much more at stake than just Adams’s freedom and reputation, however. He was the principal architect of the IRA peace strategy; without him the IRA would never have been maneuvered out of violence. If the British put him on trial, his hardline opponents’ accusations of naiveté or selling out will be justified and the peace process will be seriously undermined.

In all of this, the role of the Obama Justice Department has escaped the scrutiny that it deserves. The road to Adams’s arrest began in May 2011, when the DoJ served subpoenas on Boston College on behalf of the British government without conducting due diligence.

In an affidavit to the Boston District Court justifying the subpoena seeking Price’s interview with the college, U.S. Attorney Carmen Ortiz cited a Belfast Sunday newspaper report that claimed to have heard Price’s tape admitting her part in McConville’s death.

But Price never mentioned the McConville killing in her interview for the archive, and a moment’s reflection would have revealed as nonsensical the idea that a Belfast newspaper, the equivalent of a supermarket tabloid in the United States, would be allowed access to such a secret, well-protected archive held by one of the country’s most prestigious colleges. The police in Northern Ireland pulled the wool over Ortiz’s and Attorney General Eric Holder’s eyes, and they did not even notice.

The peace process in Northern Ireland is a monument to American diplomacy. Without the efforts of Bill Clinton and George W. Bush, it is doubtful whether a power-sharing government would be in Belfast or whether IRA guns would not only have been silenced but destroyed. The peace process is testimony to the fact that with enough effort, jaw-jaw can prevail over war-war.

What a shame that a slipshod approach by the Obama administration to such a crucial issue has put it all at risk.

TRANSCRIPT: Belfast Media’s Abysmal Reporting

TRANSCRIPT: Belfast Media’s Abysmal Reporting
Radio Free Éireann
WBAI 99.5FM Pacifica Radio
New York City
29 March 2014

John McDonagh (JM) and Sandy Boyer (SB) interview author, journalist and former director of The Belfast Project Ed Moloney (EM) about the Boston College tapes.

(begins time stamp 31:58)

SB: We’re talking to Ed Moloney, the author of Voices From the Grave (and) A Secret History of the IRA. And Ed was the director of what was called The Belfast Project. It was a unique oral history of The Troubles speaking to people from the Provisional IRA and the Ulster Volunteer Force who actually did the fighting.

And now, if you are a regular listener to the show you know, those tapes were handed over the the Police Service of Northern Ireland (PSNI) and now they’ve been used to charge Ivor Bell, former Chief-of-Staff of the Irish Republican Army, with aiding and abetting the murder of Jean McConville. Ed, thanks for being with us and what can you tell us about that?

EM: Which bit, Sandy? There’s a lot there.

SB: About the use of the tapes from the project you directed to charge Ivor Bell.

EM: First of all there is no evidence that this is Ivor Bell that was interviewed.

As I understand it one of the reasons why the police have let it be known that they want to question Anthony McIntyre, the interviewer, is to provide evidence about the identity of someone who’s only known in court as “Z”, “Interviewee Z”.

And they’ve also let it be known that if they do proceed to trial on this they will identify the person “Z” by what they call “the jigsaw method”.   I’m not exactly sure what that means.

But there is no confirmation, believe it or not, despite all the media reports that this is actually Ivor Bell that is featured in this interview at the center of this court case. So that’s point number one. And that should be borne in mind.

There’s a great deal sloppy journalism and reporting about this case and that has to be up there at the top of the list I think.

SB: And what tapes were actually handed over the the Police Service of Northern Ireland?   Was it all the tapes from The Belfast Project?

EM: No, no, no, no indeed. As you said in your introduction that the Boston College tapes were handed over as if all them were handed over.

My estimate is that maybe two to three percent of the archive has actually been handed over to the PSNI. A very small fraction – much, much less than the PSNI were actually seeking in the first place and a very, very small number of interviews. I mean, if the police had been trying to get say all of a person’s interviews that they gave to the Boston College (archive) they were refused that.

They were only allowed interviews which actually made mention of the Jean McConville case or associated elements of it and that dramatically reduced the number of interviews that were actually handed over.

So again, I was watching news reports in Belfast during the week which were saying that the PSNI now have full access to Boston College archives. Nothing could be further from the truth. They’ve got as I said my estimate is about two to three percent – very small number – eleven in total – and that is very small.

JM: Ed, you were speaking about how it was covered over in Ireland. We’re going to go to two clips now: ne from Ulster Television and the other from RTÉ and this is how they covered it.

(Audio clip of two news broadcasts by UTV Reporter Sharon O’Neill and RTE Northern Editor Tommie Gorman)

JM: And that was two news clips about how it’s being reported over there.

Also Ed, what’s coming out now is how Sinn Féin is going on the attack, particularly of you and Anthony McIntyre, calling the Boston tapes a “touting programme” on one hand and then Gerry Adams issuing statements that if anyone has any information on the killing of Jean McConville to please come forward to the PSNI.

So, they want it both ways.

EM: So what’s your question, John? I don’t quite follow you.

JM: How did you perceive the two clips there? Were they accurate? And Gerry Adams’ hypocrisy on telling people to come forward and then criticising the tapes themselves.

EM: Both of those reports were just so full of inaccuracies that it highlights exactly what I’m talking about here.

In Belfast at the moment we do not have a fully functioning media.

First of all, Paul Bew’s involvement in this project, which is now being highlighted by Gerry Adams, was marginal. He was a message boy from Boston College to a number of people in Belfast back in 2000- 2001.

If anyone had any ideas for projects or things that Boston College could do commemorate the peace process – to record The Troubles – Paul Bew would pass on their ideas to Boson College and we were one of the ideas that was put forth.

So his role is marginal but is being played up by Gerry Adams because he was also at one stage advisor to David Trimball so he’s trying to make this appear to be a Unionist plot of some sort which it is absolutely not.

Secondly, I was never an interviewer. I coordinated the project. The interviews were conducted on the Republican side by Anthony McIntyre and on the Loyalist side by Wilson MacArthur. So again, another inaccuracy.

And Sharon O’ Neill, the UTV person, is the one I was referring to who said that The Belfast Project, the archives at Boston College, that the PSNI now have full access to them.

I rang her up and I said: Sharon, that is not true and I repeated to her what I just repeated to you, that they got a very tiny percentage of the reports.

And she said: Oh, terribly sorry, Ed, it was because it was a live report. In other words when you go on live reports for UTV and you’re the Justice Correspondent you’re apparently allowed to say the first thing that comes into your mind and accuracy is a second option as far as people like that are concerned.

And this is part of the problem. You’re getting just absolute rubbish journalism covering this story.

If this was the United States of America and it was happening by this stage, for example, The New York Times and The Washington Post – I would certainly hope and I think they probably would – would have had a team working on the story:

Is it possible to get a conviction?

Would a case like this even go trial on the basis of the evidence that we have?

And the evidence? Let me just go through it:

We have this interview or portion of an interview, small portion of an interview from someone called “Z” who the police are claiming is Ivor Bell.

That was an interview that was not taken under caution such as most police statements have to be in order to be presented into court.

It was not a sworn statement. It was conducted by someone who was an academic researcher and not someone who was a forensic interrogator from the RUC. Or PSNI. (excuse the Freudian slip.)

There’s no supporting evidence. There’s no forensics evidence. There’s no ballistic evidence.

And most crucially of all: there is no admission by anyone, least of all “Z”, least of all whoever “Z” is, if it’s Ivor Bell or not I don’t know.

There’s not a lawyer that I have talked to in the week or so since Ivor Bell was arraigned on these charges who believes: a) that this could secure a conviction and many of them believe this won’t even go to trial.

Yet none of this is reflected in the media coverage. Not one journalist as far as I can make out has made an issue of trying to examine what are the real legal possibilities of even going to trial on something like this never mind securing a conviction.

And on the basis of that the PSNI have been allowed to present a fantastic triumph – breaking, cracking the case of Jean McConville’s disappearance – when in fact as I think events will ultimately prove – you couldn’t be further from the truth.

Now in relation to what Gerry Adams is calling for well, we’ve gone through this before. And we’ve gone through all the attacks that he has launched against Boston College and against this particular project.

I’m asking, or I’m saying this very simply:

if anyone was to conduct a serious history of the Provisional IRA during The Troubles and decided to leave out, because they have fallen out of favor, people like Brendan Hughes and Dolours Price…

…incidentally it would help if Tommie Gorman could actually pronounce her name – it’s not Dolers or Dolores – it’s Dolours. It means sadness. He couldn’t even get that basic fact right.

But if he were to try to construct a history of the Provisional IRA during The Troubles and you left those people out – Dolours Price was in charge of the first bombing team that attacked London back in 1973.

Brendan Hughes was at the side of all the Belfast Commanders from the early 70’s onward including Gerry Adams. He was the closest friend of Gerry Adams. He shared a cubicle with Gerry Adams in a hut in Long Kesh during internment.

He led the 1981 hunger strikes.

He led the debate inside Long Kesh which led to the reorganisation of the IRA in the mid and late 1970’s.

He was involved in all the major phases of the Republican struggle.

And one’s supposed to leave someone like that out because Gerry Adams doesn’t like or didn’t like Brendan Hughes’ attitude towards him and towards the peace process?

I don’t think so.

I think if you were an historian and you left those sort of people out of any attempt to chronicle the real story of the IRA you would be accused by historians of utmost bias.

We went and we sought people like Brendan Hughes because of their value and the totality of what they could contribute in terms of their knowledge of the IRA and their knowledge of the Provisional’s and their history.

And the sections in which he criticises Gerry Adams actually, when you look at the totality of these interviews, were very small indeed. The rest of it, in relation to the Gerry Adams was either neutral or in fact very pro, because he was very close to Gerry Adams and very fond of him and said many, many nice things about him as well as being critical of him.

SB: Ed, getting back to Gerry Adams: I find it very interesting that Ivor Bell is charged with aiding and abetting the murder of Jean McConville.

As far as we know Gerry Adams has not even been questioned about that. But both Brendan Hughes and Dolours Price said he gave the orders for that.

Why is it do you think he doesn’t even get questioned?

EM: I don’t know what’s happening on that particular issue, Sandy, because Gerry Adams issued that offer, if you want to call it that, to the PSNI a couple of days ago and the PSNI have been conspicuous in their silence since.

Some people have said this is a very clever move by Gerry Adams because it will force the PSNI to say “no” we don’t want to interrogate or question Gerry Adams.

But on the other hand the PSNI might consider it wiser to leave the option open and not to give him an answer at this stage. What all that is about I am not entirely sure.

But from what we know – and incidentally – the only person who has actually linked Gerry Adams to the Jean McConville disappearance in our interviews that I know of is Brendan Hughes. Everyone seems to forget this.

Dolours Price DID NOT MENTION the Jean McConville business in her interview with Anthony McIntyre.

Not once did the words “Jean” and “McConville” leave her lips!

She did not talk about her disappearance. She did not talk about the woman. She did not talk about how she was killed or anything like that.

That’s forgotten. It’s just assumed – as was assumed in those reports – none of which are based upon any research. None of those journalists bothered to ring me up, the director of this project, to ask basic, factual questions before they went on air.

I mean it’s astounding! The abysmal standard of journalism that we have in Northern Ireland these days. And that’s a perfect example.

There is only one person who has actually linked Gerry Adams to Jean McConville and that is Brendan Hughes.

Yes, Gerry Adams is coming on and painting with this hugely broad brush about what was said about him and Jean McConville in the Boston archive in fact it comes down to one person out of all of the ones that have been talked about.

Where do you hear that mentioned in the media reports? Not at all. It’s disgraceful!

JM: Ed, you’re talking about the small percentage of the tapes that were handed over. And it seems to be there might be six other people involved.

Do you know what the process that Boston College went through of the editing of these tapes? And who sat down and picked out which parts were going to be handed over?

EM: This is the interesting story, isn’t it?

As you know myself and Anthony McIntyre tried to get included in the case and we were consistently rebuffed. First of all at the district court level, then at the First Circuit level and then we tried to get into the Supreme Court and apparently we quite narrowly failed on that as well.

We were trying to argue that we had certain rights and what have you – those were not recognised by the courts. So the entire case in relation to dealing with the tapes was left to Boston College.

They claimed at district court level that the librarian at Boston College when asked by the judge to go through the interviews and to hand over to him those interviews which were respondent to the subpoena he claims, can you believe, that he had not read one of them and didn’t know what was in them.

Now you can take that with as large a pinch of salt as you can possibly manage to get between your forefinger and your thumb.

But anyway that’s what he said so the judge said well in that case I’ll go through them all. Hand over the entire archive to me. So Boston College handed over the entire archive to the judge, Judge Young, in the district court.

When the case was then lost and Boston College announced that it was not going to appeal and the process of resisting the subpoena as far as they were concerned was over there was an outraged reaction from all sorts of people, not least ourselves, leading the criticism of Boston College for abject cowardice.

That forced them into a re-think.

And the re-think was that they then appealed to the First Circuit that only those interviews which actually dealt with and were respondent to subpoena – i.e. dealt with the Jean McConville case – should be handed over.

So originally something like forty-six or forty-seven interviews were to be handed over (if not more) but as a result of that action and the judgment of the First Circuit that was reduced down to eleven out of forty-six.

So as result of that a very, very much smaller number of interviews were put at risk as a result.

But no thanks to Boston College. None of this need have happened. If they had been honest at the outset and told the judge: Yeah – we’ll go away and look at them and we’ll give you over – they could have handed over even less if they really wanted to.

I know, for example, that one of these interviews – it was handed over on the basis of a question and answer which amounted to: did you know anything about the “unknown cells”. (This was unknown cell that “disappeared” people.) Answer: I heard of them but didn’t know anything about them.

And on the basis of that or a question very similar to that an interview was handed over and therefore, in the words of Tommie Gorman and Sharon O’Neill, that is then translated into really crucial, exciting evidence about Jean McConville’s disappearance.

A lot of nonsense being is talked. Very little research, very few questions being asked by the media and the result is what we have.

SB: Ed, thank you very much for setting the record straight. This is an incredibly important case and we’re going to continue to keep on top of it. I think we’ll be back next week with more on this subject. So thank you very much, Ed.

EM: No problem.

(ends time stamp 53:20)

Ed Moloney and NPR

NPR Admits Mistakes In Boston College Programme
Ed Moloney
The Broken Elbow

This last weekend America’s National Public Radio (NPR) – the nearest the US has to the BBC or RTE – broadcast a follow up to the Chronicle of Higher Education’s devastating examination of Boston College’s handling of the Belfast Project, the oral history archive which sought to collect the life stories of former Republican and Loyalist paramilitaries, but which has been the subject, since May 2011, of subpoenas from the Police Service of Northern Ireland (PSNI) which allegedly is investigating the IRA’s disappearance of Jean McConville.

NPR’s ‘On The Media’ programme, which regularly deals with issues affecting the American media, used two interviews by Brooke Gladstone, one with Anthony McIntyre, the former IRA prisoner and Belfast Project researcher and the other with Jack Dunn, Boston College’s public relations person to ask what the future of Oral History was in the wake of the subpoenas.

As the more avid followers of the story will know, ourselves and Boston College have been at daggers drawn in both our radically differing accounts of what happened when the project was set up and over our stinging criticism of the college’s cowardly approach to resisting the subpoenas both inside and outside the courts in the US. Invariably this dispute has set ourselves and Dunn at each other’s throats.

That happened again on the NPR programme and in a colourful way, but this time Dunn showed a disregard for the truth that was staggering even by his tacky standards. So outraged was I by the lies he told about McIntyre and myself that I lodged a complaint with NPR’s ombudsman, sent a message to the interviewer, Brooke Gladstone and posted this comment on ‘On The Media’s website which summarised all but one of the gripes I had with her interview with Dunn.

That dealt with what Dunn called McIntyre’s ‘lengthy history of criminal activity’, i.e. his life sentence for the murder of a UVF member in South Belfast. Because of space limitations imposed by the website I was not able to make two points in answer. One was that the US courts have recognised that IRA violence is fundamentally political in nature and to call it criminal is legally inaccurate in this country. And as a friend pointed out, ‘On The Media’ would not dare call a Palestinian fighter a ‘criminal’.

The second point was that it was because of his IRA associations – not despite them – that McIntyre was hired in the first place. The project was constructed on the idea that former paramilitary activists would not speak frankly to academic oral historians but they might to people from their own community and background. That applied to both IRA and UVF interviewees. Boston College enthusiastically embraced that approach and Jack Dunn would have been very aware of it. For him now to use McIntyre’s background against him is despicable hypocrisy.

Anyway here is what I wrote on NPR’s website:

NPR1

Today, Brooke Gladstone responded, admitting faults in the programme, and this what she had to say:

NPR2

And here is my response:

NPR3

Incidentally, for those interested in what Jack Dunn looks like, and for a sample of what he believes, have a look at this. I was pondering for some time what message his face sent and then it hit me: “I am a kiss up, kick down sort of guy”: