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

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

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

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

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


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

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

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

MR. ZACHARY SCHRAG
Delighted to be here.

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

MR. KEVIN CULLEN
Thanks Kojo.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NNAMDI
When bombs are going off everywhere.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CULLEN
Thank you, Kojo.

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

SCHRAG
Thank you.

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

FOI Request: Belfast Project Documents (DOJ-OIA)

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

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

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

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

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

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

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

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

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

Sincerely,

Kenneth Courter
Acting Chief
FOIA/PA Unit

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

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

Download PDF Version

Introduction

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

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

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

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

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

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

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

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

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

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

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

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

II. The Moloney Decision

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

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

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

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

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

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

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

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

III. Proposal for an Adequate Balancing Test

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

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

1. Qualified Individuals

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

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

2. Confidentiality

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

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

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

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

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

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

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

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

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

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

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

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

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

B. The Opposing Interest: The Need for the Information

1. The Nature of the Proceedings

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

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

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

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

2. Exhaustion of Alternative Sources

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

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

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

Conclusion

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

 


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

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

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

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

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

FN6. See Wagner, supra note 2.

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

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

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

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

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

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

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

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

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

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

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

FN18. Havemann, supra note 3 at 82.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FN33. Havemann, supra note 3.

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

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

FN36. Id. at 671.

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

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

FN39. See Silvergate, supra note 32.

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

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

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

FN43. Havemann, supra note 3 at 83.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Chris Bray: BC, NBC, and the PSNI

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

They’re too late.

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

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

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

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

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

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

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

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

Adams in DC: Confirmed, and Still Ignored

Adams in DC: Confirmed, and Still Ignored
Chris Bray
Friday, May 30, 2014

A news story on the website of RTE, Ireland’s national broadcaster, confirms that Gerry Adams discussed his arrest with American officials during his visit to Washington. While the PSNI pursues new subpoenas, the RTE headline tells the whole story: “Adams arrest discussed at Washington briefing.”

An email to Adams’ office this morning produced a list of officials who met with Adams: In addition to a sizable group of Congressmen — gendered term intended, because he somehow only met with men — Adams met with some moderately well-placed officials at the State Department. The White House took relatively little notice of the meeting, sticking Adams with an official from the Office of the Vice-President. Imagine flying four thousand miles and then finding yourself in a meeting with the vice-president’s staff.

In any event, yes: Gerry Adams was in a foot race with the PSNI, talking to U.S. government officials about his arrest and the foolishness of the police investigation at exactly the moment the police are trying to get new subpoenas of the Boston College archival material that they hope to use against him.

Besides RTE, which news organizations noticed the presence in the capital of a foreign official engaged in a lobbying effort against a criminal investigation that the United States is helping with? Take a look:

adams blackout

When I picture the American news media, I imagine a little ring of saliva around the spot on the desk where they put their heads during nap time.

Adams in Washington DC: Blackout

Blackout
Chris Bray
29 May 2014

Gerry Adams is in Washington, D.C. today, “briefing senior political figures and the Obama administration on the current difficulties within the peace process.” He is, in other words, lobbying one of the governments that’s supposedly trying to put him in prison. Taking the mutual legal assistance treaty process and the PSNI investigation at face value, Adams is trying to talk a murder investigation off the rails — to use politics against the police. Of course, taking that investigation at face value is…problematic, and the more likely reality is that an Irish politician is employing diplomacy this morning against a nasty piece of British politics.

Still, the drama in the moment is extraordinary: The same month he walked away from four days of police interrogation over a murder, a prominent politician is in the country where the supposed evidence against him was found, publicly announcing his intent to meet with officials in the government that helped to get him arrested. It’s as if a murder suspect in New York City walked out of the interrogation room, smiled, buttoned up the cuffs of his shirt, and sauntered over to City Hall to have coffee with the mayor, patting a detective on the head as he left the precinct.

But then here’s the fucking incredible part: The American news media isn’t covering the visit at all. As I write this on Thursday morning, Adams has been in the country for about 24 hours, and no American news source that I can find has even mentioned his presence. He got to D.C. last night: nothing. Silence. Try your own search terms, but here are the results of a Google News search for “Gerry Adams Washington DC,” narrowed to the last 24 hours:

no gerry

Why is this not news? Adams is here to kill the PSNI’s new request for subpoenas, full stop. He’s here to prevent the complete disclosure of an entire archive full of detailed and extensive interviews about paramilitary violence in Northern Ireland during the Troubles. The stakes are plainly very high, for both Adams and Northern Ireland as a whole, and Adams will be urging the U.S. government to take a step that will put it sharply at odds with one of its closest allies. It’s a dramatic narrative and an important piece of policy news at the same time, crossing multiple beats: diplomacy, law enforcement, Irish politics, the state of the peace process in Northern Ireland. Reporters, who is Gerry Adams meeting with? Does he have a meeting at the Department of Justice?

How is it that this aggressive piece of high stakes diplomacy is drawing no attention at all?

TRANSCRIPT: Digging Too Deep? NBC News Seeks ‘Belfast Tapes’

Digging Too Deep? NBC News Seeks ‘Belfast Tapes’
Beat the Press
WGBH News
Fri May 23, 2014

Boston College’s archive on the Irish “Troubles” was supposed to be sealed and be a historical time capsule that future scholars could use to understand years of brutal sectarian conflict. Then the British government cracked the archive open, and now, NBC News wants to make the contents public. But critics are crying foul, saying NBC’s request could make Ireland’s “Troubles” surface yet again.

PANELISTS
•Dan Kennedy is a journalism professor at Northeastern University.
•Callie Crossley is the host of WGBH News’ Under the Radar.
•Adam Reilly is a reporter for WGBH News.
•Roy Harris is an author and journalist.

WGBH News Reporter and Programme Host Adam Reilly (AR) files a report on the attempt by NBC News to obtain the material from the Boston College tapes that was sent to the Police Service of Northern Ireland pursuant to subpoenas.

In the report he interviews The Boston Globe columnist Kevin Cullen (KC) and takes sound bites from Sinn Féin President Gerry Adams’ (GA) address to his supporters after his release from police custody and questioning concerning the 1972 kidnapping, murder and “disappearing” of Jean McConville.

Reilly then goes into the studio for a round table discussion with Northeastern University journalism professor Dan Kennedy (DK), author and journalist Roy Harris (RH) and the host of WGBH News’ Under the Radar Callie Crossley (CC)

AR: Boston College’s oral archive on the Irish “Troubles” was supposed to remained sealed; an historical time capsule on the Irish “Troubles future scholars could use to understand years of brutal sectarian conflict.

But then the British government cracked the archive open and now NBC News is trying to make the contents public.

When Sinn Féin leader Gerry Adams was questioned recently about the 1972 IRA killing of Jean McConville he was indignant.

GA: …a sustained, malicious, untruthful and sinister campaign…

AR: It was yet another headache for Boston College’s ill-fated Belfast Project, a series of interviews with combatants in Ireland “Troubles”.

Researchers promised to seal the recordings. But after a subpoena from British authorities BC was forced to hand over interviews linking Adams to McConville’s murder.

Adams accuses BC researchers Ed Moloney and Anthony McIntyre of pushing a vendetta.

GA: Both Moloney and McIntyre are opponents of the Sinn Féin leadership.

AR: Now NBC News wants to unseal all Belfast Project material related to the British subpoena.

Critics say NBC is acting acting recklessly. Journalist Niall O’Dowd warns the request could “rip the skin off numerous atrocities” and “catapult the entire Irish peace process in an uncertain direction.”

The Boston Globe columnist Kevin Cullen agrees that disclosure could bring violence.

KC: Northern Ireland remains a very,very small place – a very byzantine place.

And could I see a circumstance when one of these disclosures could lead somebody

to take retribution against somebody? Absolutely!

AR: But Cullen, who covered The Troubles for years, says that doesn’t mean the media should back off.

KC: Sure I want the peace process to survive and I want it to thrive.

I don’t think that’s our call. And if the peace process is not strong enough to withstand these kinds of disclosures then I don’t think we really have a peace process.

AR: Now police in Northern Ireland are trying to get BC’s archive, too, which could diminish NBC’s chances of success. Still, the network’s move raises a troubling point.

Sometimes full disclosure and the public interest may not go hand-in-hand.

(News report ends and in studio round table discussion begins)

So is NBC News pushing too hard?

Joining me to hash it out are author and journalist Roy Harris, Callie Crossley of WGBH News and Dan Kennedy of Northeastern University.

I am genuinely ambivalent on this one. If Gerry Adams ordered the murder of Jean McConville or anyone else it is most certainly newsworthy.

That being said, the people who spoke with these BC researchers believed that their comments were going to be sealed for their lifetimes.

We as journalists I think take our promises to sources very seriously and here you have NBC News basically looking to upend an agreement that these people made.

So I don’t know how I feel. Dan, what do you think?

DK: I think we’ve really got two competing first amendment interests here.

Just a few weeks ago we were talking about this issue and at that point the first amendment weight seemed to be on the side of the researchers and Boston College which did not want to turn over these documents because essentially these were confidential interviews – there’s journalistic issues involved, there’s academic freedom issues involved and they were forced to turn them over.

Now NBC’s taking the position that because these documents moved through the court system at some point they therefore become public records so they’re claiming a first amendment interest in flushing these out.

AK: And you’re skeptical of their legal rationale, right?

DK: Well, I’m not a lawyer but it seems to me that the original first amendment interest in keeping these interviews confidential ought to take precedence over NBC saying that these documents should become public simply because they passed through the court system.

AR: What do you two think?

RH: Well, I think the judges will make the call on this and that’s very important.

But in this case I’m fascinated to see what NBC can do with this if they get the documents – if they are allowed legally to get the documents.

Why am I constantly being reminded of the Whitey Bulger case with this?

You know going back into those years and seeing Kevin Cullen it reminded me again that there’s something cleansing about figuring out what happened with that murder and to have that somehow sealed in mystery I think is a real concern.

As a reader, as a viewer that’s something I would want to know about once the legal decision’s made.

CC: Yeah, but see we wouldn’t even know about it if this information hadn’t been leaked.

That’s what bothers me is that these people signed on for this for posterity’s sake, for history’s sake but in confidentiality.

And if that was an agreement made with me as a journalist I just would be extremely uncomfortable with that. Everybody knew what the stakes were in having the conversation – the participants.

For me, it needs to be a very, very high road to upend that.

AR: Ray, you use the term “cleansing” to describe the effect that bringing old information like this to light can have.

That makes sense but on the other hand there’s also a genuine risk of violence here.

I mean if material comes out and Person “X” says they killed Person “Y” and then Person “Y” learns of this – it’s new information – and they decide that they’re going to avenge that killing shouldn’t that give journalists pause?

I mean Kevin Cullen argues, I think fairly persuasively, it’s not our job to think about that but shouldn’t we take into account the effects our reporting might have? At least in extreme cases like this.

DK: I mean, we should absolutely. But there’s also the fact that it’s known who was interviewed. The authorities can interview all of these people themselves.

The fact is the only reason these people spoke frankly was because they thought they were operating under the privilege a journalistic and academic inquiry.

So essentially it’s just changing the rules in the middle of the game. Let the authorities question these same people and see what they have to say knowing that they don’t have those protections.

CC: I was just going to say just to take issue with you about the Whitey Bulger thing and that is: there were not a group of people who sat down and said: I’m going to tell you what happened but you can’t release this until afterwards.

There was all kinds of information that had come out in the interim. In that case I’m with the families – all right now, if somebody knows I should know, too because it’s out there in these various other forms.

But this was not the same situation so I don’t quite see the comparison.

RH: Well, the families certainly are the same. You know, the families want to know what happened.

And the cleanest way to do it obviously would be to have kind of a commission that would look into that would have the rights to do that but we haven’t seen that in what? Forty years.

AR: Alright. We’ve got to move on and I think we’ll probably be able to come back to this one for better or worse.

(ends)

 

We mustn’t turn historians into informers

We mustn’t turn historians into informers
Ben Macintyre
Sunday Times
May 2 2014

The enforced handover of taped evidence by paramilitaries from the Troubles will have a chilling effect on research

Three years after the Good Friday agreement a group of historians and researchers affiliated to Boston College in Massachusetts set out to gather an oral history of the Troubles by interviewing paramilitaries on both sides of the conflict.

The rules were simple: IRA and loyalist veterans could speak freely on the strict understanding that the tapes would not be released until after their deaths.

Over the next five years the researchers, including a former IRA prisoner, gathered a remarkable trove of information about the last 40 years of violence in Northern Ireland. A total of 176 interviews were recorded with 46 people who, believing they were speaking to posterity, revealed secrets they would never have divulged otherwise. The tapes were securely locked away in the Burns Library at Boston College.

Brendan Hughes, the former IRA commander who was one of the key participants in the project, died in 2008. It subsequently emerged that Hughes’s taped interviews included the allegation that Gerry Adams had directly ordered the “disappearance” of Jean McConville, the widow and mother of ten, kidnapped and murdered by the IRA in 1972.

The IRA veteran Dolours Price, the Old Bailey bomber who died last year, claimed she had made similar allegations about Adams’s involvement in interviews for the “Belfast Project”.

The Police Service of Northern Ireland, scenting a breakthrough in the most chilling of “cold cases”, launched a legal bid in the US to obtain the tapes, citing the US-UK mutual legal assistance treaty.

After a protracted two-year legal battle that reached all the way to the US Supreme Court, Boston College was eventually forced to surrender portions of the relevant tapes. Adams, who has always denied any involvement in the murder of McConville, was arrested on Wednesday night.

At stake here are two different, but complementary principles of justice: a legal accounting set against the search for a wider historical truth; the protection of academic freedom versus the state’s duty to solve a heinous crime.

The murder of Jean McConville was savage in the extreme. There is no evidence to support IRA suspicions that she was an informer; her crime was to help an injured British soldier. She was torn from her family, executed with a shot to the head and buried on a remote beach. In a particularly vile twist, her children were told that she had abandoned them.

Anything that brings the killers to account should be applauded, but the way the taped evidence has been obtained in this case comes with a heavy cost. The Supreme Court was given the task of balancing the protection of historical research against the interests of the US government in upholding treaty obligations to Britain. It ruled that criminal investigation takes precedence over academic study.

The gathering of confidential oral history is central to any process of truth and reconciliation. As the South African experience shows, finding out what happened, based on the honest, unforced testimony of those involved, is as much a part of the healing process as punishment of the guilty.

Source protection is not just a central pillar of journalism, but vital to any sensitive historical inquiry. My own book research into intelligence and espionage history would be impossible without being able to make, and keep, a promise to my sources of permanent anonymity. The researchers on the Belfast Project set out, in good faith, to uncover history but have now been turned into police informers, arguably putting both interviewers and interviewees at risk.

The Belfast Project was intended as an important addition to the peace process, to obtain as full an account of what happened as possible. Diverting the project from the library to the courtroom has already had a chilling effect on historical research: others, including former members of the RUC, who were once prepared to come forward with their own accounts have backed off since the US court ruling.

Retrieving the memories of all sides in the conflict is vital to understanding, demystifying and ultimately defusing an explosive past. If the witnesses to grim events fear prosecution for telling the truth in confidence, then that history cannot move on.

There is no certainty that the Boston tapes will be admissible in court: the interviewees were not under oath and were not given any legal warning about self-incrimination. Neither Hughes nor Price can be cross-examined, since both are dead; Price’s testimony is particularly open to challenge since she was on day release from a psychiatric hospital when she was interviewed.

The archived interviews in Boston are believed to contain evidence relating to at least 16 more abductions and killings; they may also contain testimony about atrocities committed by loyalists. If the British courts demand an accounting from one side, will they also pursue the other?

British police have been hunting the killers of Jean McConville for 42 years without success. The breakthrough came not from dogged police work but by using the US courts to extract bona fide historical research obtained in good faith.

As one of the Belfast Project researchers put it: “Journalists, academics and historians need protection if they are to gain the necessary information which offers a valuable insight into the past.”

The McConville family deserves justice; but historians who seek to explore the past also have a right to uncover the truth.

Surveillance claims over Boston College tapes reported to Irish police

Surveillance claims over Boston College tapes reported to Irish police

Wife of ex-IRA prisoner involved in recordings has asked Garda to investigate phone and email spying allegations

Henry McDonald, Ireland Correspondent
The Guardian
Friday 23 May 2014

The wife of an ex-IRA prisoner who was the key researcher involved with the controversial Boston College archive tapes has complained to the Irish police that her phone and email communications are being spied on.

Carrie Twomey told the Guardian on Friday night she wants the Garda Síochána to investigate her claims that her family are being subjected to electronic surveillance.

Her husband Anthony McIntyre recorded and collated the recorded testimonies of dozens of former IRA activists, some of whom have claimed on tape that Gerry Adams ordered the death and secret disappearance of mother of ten Jean McConville in 1972.

The Sinn Féin president has always denied any involvement in the kidnapping, killing and covert burial of the widow, who the IRA accused of being a British Army informer.

Since Adams was arrested earlier this month and questioned for four days by detectives about the McConville murder, McIntyre and the founder of the Boston College-Belfast Project, Ed Moloney, have come under sustained verbal attacks. Sinn Féin councillors and their supporters have labelled them “Boston College Touts” – a euphemism for informers.

Twomey said she was certain that her phone calls and emails had been subject to “illegal privacy violations” in recent weeks.

The blogger and writer said a recent communication between herself and the US embassy in Dublin had been compromised and its contents leaked to a Sunday newspaper in Belfast.

“I haven’t a clue who precisely is carrying out the surveillance – it might be the NSA in the States, GCHQ in Britain or even the Provisional IRA’s spying department. But whoever is doing it this is an offence in Irish law and I want the Garda to take it seriously. “

She added that the alleged surveillance was linked to the recent announcement that the Police Service of Northern Ireland wanted to seize all of the Boston College-Belfast Project tapes, even those not related to the McConville murder, which the police currently hold in Belfast.

Ed Moloney has urged the US government to resist police demands that all of the remaining tapes detailing paramilitary testimonies be sent to Belfast.

Moloney said that to allow a raid on “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.”

The author of a critically acclaimed history of the IRA added: “I also called upon Boston College to vigorously resist this action and to rally the rest of American academia in the cause of research confidentiality.”

Participants in the Belfast Project, both former IRA members and ex loyalist paramilitaries, are currently involved in legal action to take back their tapes. Many of the loyalists want the material destroyed fearing future arrests over past Troubles-related crimes. All of those who took part agreed to do so on the condition that the tapes would not be released until they were dead.

If the PSNI seizes all of the Boston College archive material it could lead to dozens of veteran IRA and loyalist paramilitaries being arrested.

Twomey said: “These claims now circulating are a direct result of a phone conversation I had with the embassy on Wednesday 14 May, 2014 and subsequent email correspondence sent Thursday 15 May, 2014, in which I highlighted the heightened risk to our safety and the safety of the participants in the project as a result of Sinn Féin’s orchestration.

“That contents/aspects of our communication, however inaccurately spun, appeared days later in a Sunday tabloid is a matter of serious concern, not least because of the privacy violations and increased risk it indicates.

“I have requested from the [US] State Department a formal investigation into how information that I had raised our safety with the embassy last week ended up in the papers. Either our phone/email is compromised, or the embassy’s communications are, and/or there has been a serious breach of protocol and illegal privacy violations have occurred.”

 

Gerry Adams: Arrested by Northern Ireland’s past

Gerry Adams: Arrested by Northern Ireland’s past
Kevin Rooney
Spiked Online
2 May 2014

Northern Irish politicians have allowed the ghosts of war to rule the present.

It was 11 in December 1972 when Jean McConville was taken from her home down the road from where I lived in West Belfast. It was not until 1999 that the Provisional IRA admitted responsibility for her killing and informed the authorities where the body was buried.

You would hardly know it from the current media coverage of McConville’s killing, following the arrest of Sinn Féin leader Gerry Adams in connection with it this week, but McConville’s disappearance was not the stand-out event of 1972. There was a lot going on in West Belfast. Just a few years before McConville disappeared, the British state had sent the Army into Northern Ireland to occupy our streets and quell the growing civil-rights uprising. In 1971, the British had introduced internment without trial for those same civil-rights activists who were defying bans on demonstrations. And in the same year as McConville’s disappearance, on Bloody Sunday, the Army shot dead 14 unarmed people who had taken to the streets with thousands of others to protest against internment. And there was more. About 500 people died on all sides in the Irish war in 1972 and, in the weeks running up to McConville’s disappearance, 11 people were shot dead by British paratroops in the streets around Ballymurphy where I lived. There were also numerous republicans and Catholic civilians assassinated by British soldiers acting on information from touts (informants). Indeed, the IRA killed McConville because they believed she was a tout.

I would apologise for the quick history lesson were it not for the fact that Adams’ arrest seems to have prompted a rather more selective retelling of that period, with journalists and commentators presenting this event as a uniquely brutal and heinous crime carried out by cold-blooded murderers. It was not; it was part of a war.

The reason you will not hear anyone else present this wider context is that in Northern Ireland today a social and political history of the Irish war has been replaced by a victims’ history of that war. We now rarely talk about the fundamental conflict at the heart of this long war – the struggle of Irish nationalists for a united Ireland against the British state determined to maintain the union with Britain. So fundamental was this political principle that people on both sides were willing to kill and be killed for it. Both the IRA and the British Army continued to fight for many years knowing full well that innocents would die, that normal peacetime values would be perverted, and that things never tolerated in peacetime would be justified by both sides. The IRA stated clearly that informers were legitimate targets; in 1981, the then UK prime minister, Margaret Thatcher, allowed 10 men to die on hunger strike rather than concede the principle that they were political prisoners.

But today, few are prepared to provide the context, or to explain the wartime backdrop against which the killings and the bombings took place. Instead, we talk about the legacy of pain and hurt left by individual deaths. We talk of the need for closure and catharsis, and of the rights of victims. Therapeutic politics has usurped politics proper, and anyone daring to suggest we should leave the past behind and ‘move on’ is lambasted by Northern Ireland’s victims’ commissioner. Our political news programmes, like Today and Newsnight, replace political actors with family members and the spokespeople for victims’ groups. And when politicians do appear, they talk about victims’ rights rather than politics.

But the victim culture embraced by all shades of political opinion presents problems for all. Sinn Féin has virtually transformed itself into the party of victims in recent years; it must often have felt that this approach had finally given nationalists the equality they failed to achieve through an armed struggle. After all, if all suffering is equal, then the nationalist community can certainly claim its fair share of grief.

However, as Gerry Adams languishes in a police cell, he should reflect on the way that he and his party have been hoist by their own petard. He was only too happy to turn the complex political struggles of the past into a tale of victims and victimisers when it benefited him; now this strategy appears to have bitten him.

The British and Irish governments clearly want to move on and are prepared to issue limited apologies and make symbolic gestures and compromises. But the constant dredging up of the past is preventing the progress they seek. The next 10 years in Northern Ireland look set to be dominated by backward-looking commemorations and investigations into past crimes that are likely to be bitter and divisive.

I am not interested in re-fighting the war in Ireland through the lens of the victims. No one listening to the children of Jean McConville telling their story can feel anything other than pity and sympathy. It was a terrible tragedy and it wrecked their lives. But it does not follow that those who suffered during this period of history should get to block progress and keep us in the past. Victim culture is essentially undemocratic. This was demonstrated recently when a campaign by one victim’s family resulted in two Sinn Féin politicians being barred from holding office because of their past IRA activity.

While it might be necessary to accept that we may not see a united Ireland in our lifetimes, we can at least ensure that we do not spend the next 10 years obsessing over each tragic act from a long, drawn-out conflict. Revelling in this mawkish and divisive raking over of the past will do no one in Ireland any good – least of all the victims. We should instead learn the lessons of the war and work together to create a progressive and less divided political future.

Kevin Rooney is a writer and based in London.