The Boston College Oral History Project and ‘Voices From the Grave’

THE BOSTON COLLEGE ORAL HISTORY PROJECT AND ‘VOICES FROM THE GRAVE’
An Phoblacht

Foot in the mouth
» BY DANNY MORRISON
(See also original version published in June)

ED MOLONEY and Anthony McIntyre surely had their tongues protruding from their cheeks like gumboils when they claimed that they believed they could be killed if the interviews they carried out as part of the Boston College project were handed over to the British authorities. It is such nonsense and a very weak defence when there are better and more proper ethical and academic grounds for resisting the handover – not that Ed or Anthony, it seems, in their haste, properly warned participants that their confessions/boasts/toutings could be seized under subpoena.

I would be ashamed to make such a claim and no one would believe that I believed I would face the threat of death, especially since I had not formerly balked at the prospect and had already profited from the slanders of one dead man against the living. Had a few more of the participants who Anthony interviewed died prior to the issuing of the subpoena, nothing would have prevented the fearless and courageous Ed from publishing Volume II of ‘Voices From The Grave’, just as he did with Volume I.

What I find incredible is that both Ed and Anthony were well aware of the dangers to the participants given that Ed covered a case against 14 republicans in 1978/1979, including myself, and that Anthony (who was in Long Kesh) would have not been unaware of the prosecution (which received much publicity and was taken up by the National Union of Journalists). Indeed, Ed might even have been at the NUJ conference in Portrush which hosted a debate on freedom of speech and condemned our prosecution.

In 1977, Tom Hartley, then Managing Editor of ‘Republican News’, entered into an agreement with an official in the Public Record Office on the understanding that archive material he was submitting (mostly press statements and the notebooks of those of us who wrote for and edited the paper) would not be released for 30 years. However, as the material came in through the front door, the RUC were seizing it and removing it through the back door. Once they had compiled what they believed to be damning evidence – in my case, my handwriting and fingerprints on telex messages carrying reports of IRA claims of responsibility – they arrested ‘Republican News’ workers (as well as Sinn Féin advice centre workers), seized our photographic archive and office equipment, and charged us with conspiracy to pervert the course of public justice and/or IRA membership. The case eventually fell apart and after some time on remand the charges were withdrawn in 1979.

Perhaps I am wrong and Ed was on extended holiday during this time and not writing for ‘Hibernia’ and Anthony was doing no reading and talking to no one in Long Kesh.

Since ‘Voices From The Grave’ was published I have spoken to many republicans – some of whom do not support the politics of the Peace Process nor agree with Gerry Adams – who dispute many of the claims made by Brendan Hughes in regard to ‘D’ Company [Belfast Brigade, IRA] operations. If Ed or Anthony wishes to talk to them I can set up the meetings. Speaking to them would be more than Ed ever did when he chose to publish carte blanche claims of a man who was not in good health.

My involvement is quite minor. There is a claim in the book that my Uncle Harry, a former Chief of Staff of the IRA who was once sentenced to death, threw me out of his house in Dublin over the direction that Sinn Féin was taking. The incident never happened but it is there in black and white in Ed’s book. On 30th April 2010, I wrote to Thomas Hachey at Boston College and his reply many weeks later was less than satisfactory and did not contain answers to my questions. Here are some extracts:-

1. Could you explain to me what are the exact terms/conditions under which the tapes of Hughes and Ervine were/are to be made available to the public?

2. If there are conditions, could you tell me who set them?

3. If there were/are legal concerns, what are they and who advised them?

4. Did Brendan Hughes and/or David Ervine specifically give permission for their voices on the tapes [as opposed to the narrative/content of the tapes] to be available for broadcasting in the media?

5. As I said, I am a writer and have written historical features and political commentary. Can I have full access to the tapes of Brendan Hughes? If not, can you explain why?

6. Can you explain why in some cases there were redactions in Mr Moloney’s book from Brendan Hughes’s published reminiscences: that is, why incriminating actions were attributed to some named people whilst their alleged accomplices’ names were omitted – or had this nothing to do with Boston College and was solely Mr Moloney’s decision or, perhaps, the libel lawyers at Faber & Faber?

In his review of the book in ‘The Irish Times’, Professor Richard English, Professor of Politics at Queen’s University in Belfast, and himself a published author on the history of the IRA, noted, “far more could have been done to test the claims of Ervine and Hughes against sources reflecting very different perspectives”.

There are about a dozen references to myself in the book. Neither the named researcher, Anthony McIntyre (who interviewed me for his doctorate), nor the author, Mr Moloney (who has also interviewed me dozens of times), asked me to respond to any of the allegations Hughes made against me.

7. Was it the intention of the Boston College for this archive to be used in this way?

8. Is this the use that the late Professor Adele Dalsimer, co-founder and co-director of the Irish Studies Programme, had in mind – for I doubt it?

Mr Moloney’s book is full of such examples of attacks on people who won’t sue because of the prohibitive costs or people who wouldn’t succeed in our courts because they have prison convictions.

Here is what the respected author and historian Tim Pat Coogan had to say about the book in his review in ‘The Irish Independent’:

“Moloney’s introduction says that the interviewers for the programme’s archive have followed the example of the Irish Bureau of Military History, which collected statements from War of Independence veterans.

“But the Bureau programme was purely a historical record. It safeguarded the living by guaranteeing no publication until the last interviewee to receive a military pension had died . . .

“Moloney does not indicate that both himself, and McIntyre, an ex-IRA prisoner and Blanket Man, are two of Gerry Adams’s most prominent and relentless critics . . .

“This book then is no mere academic exercise.

“Based on the words of a dead man, it constitutes a journalistic hand grenade hurled into contemporary Six-County politics which, compounded by the effects of the abuse scandal, has been damaging to Gerry Adams and brought glee to his opponents.”

9. Why should Mr Moloney have exclusive access to all of this and editorial control over what is put into the public domain?

10. Is it the case that Mr McIntyre and Mr Moloney have exclusive access to the tapes?

This is of major concern to me and, presumably, many others, including many I have spoken to who have been named in the book in unflattering or incriminating terms but who were never offered the opportunity of rebuttal by Mr Moloney. Sources, to paraphrase Professor Richard English, who hold very different perspectives to Brendan Hughes but against whom Brendan Hughes’s claims were never tested.

11. Do you agree with me that the access to the tapes given to Mr Moloney should be afforded to every living individual referred to in his publication where these references arise from your archive? For example, the extracts used from the tapes are selective. There may be inconsistencies elsewhere. There may also be parts of the tapes that were not published because they are favourable to the individuals being attacked.

I was very surprised and disappointed at Boston College’s involvement in the commercialisation of a project which flies wholly in the face of all concepts of natural justice and which has seriously tarnished what was envisaged as a valuable oral historical archive. I would respectfully suggest that a serious and fundamental review of the project is necessary.

Feds take court action to get ‘confidential’ tapes for British Government

A PRESTIGIOUS United States university has been plunged into an international crisis that is the talk of academia across the globe.

Boston College has held numerous seminars on the Irish Peace Process and runs an Irish Studies Programme. Some years ago, journalist and author Ed Moloney and Paul Bew, Professor of History at Queen’s University Belfast and a former adviser to Ulster Unionist Party leader David Trimble, suggested an oral history project to record people involved in the most recent phase of the conflict in the North of Ireland. Boston College thought it was a good idea.

Each interviewee (between 30 and 50 republicans and loyalists were interviewed) was assured that their tape would not be released until after their death.

But now the British Government has thrown the whole project into chaos and jeopardised oral history projects in political conflicts and war zones elsewhere all over the world by having the US Department of Justice subpoena Boston College to force it to hand over two of the taped interviews.

Questions are being asked — and not just by Irish republicans — as to how and why Boston College thought it was appropriate in the first place to lend its name to a project headed by Ed Moloney and Anthony McIntyre, two vociferous opponents of the Peace Process and both of whom have publicly displayed their personal antipathy to Sinn Féin leader Gerry Adams. Moloney and McIntyre were in charge of the project and they selected the people to be interviewed.

And the fact that Ed Moloney and Anthony McIntyre were allowed by Boston College to use some of the tapes for personal commercial gain is also being questioned by academics.

While the story of the tapes being subpoenaed broke in an article by Jim Dwyer in ‘The New York Times’ in March of this year the subpoena had been obviously been served sometime before that — as Gerry Adams was campaigning to win a Dáil seat in Louth and Sinn Féin in the 26 Counties was on the verge of making a breakthrough with the election of 14 TDs (including Adams).

The only extracts from interviews to have been made public so far are those of IRA veteran Brendan ‘The Dark’ Hughes and Progressive Unionist Party leader and former UVF man David Ervine in Ed Moloney’s book and TV film, both titled ‘Voices from the Grave’. Brendan Hughes died in 2008; David Ervine in 2007.

The British Government is trying to force Boston College to hand over two of the full interview tapes – Hughes’s and that of Dolores?Price, a one-time IRA activist.

IN CONFIDENCE?

The usual practice for academic oral history projects is to offer confidentiality agreements but with the clear understanding given to participants that these would likely not stand up in court if challenged by law agencies. Was this done in the Boston College case by Ed Moloney or Anthony McIntyre?

“If that had been there, we would have had no interviews at all,” Ed Moloney has said.

“If we were saying to them: ‘We want you to tell us everything about your life as a bomber and gunman. And, by the way, if the cops come, we’re going to hand all this over. Is that okay with you?’ – it would have never gotten off the ground.’’

Stephen Pope, a theology professor at Boston College, told the Boston Globe that the guarantee of confidentiality to interview subjects is at best, naive, and at worst, “manipulative”, especially when conducting research in project that “has such grave significance for society”.

Judge Richard G. Stearns replaced by Judge Joseph L. Tauro

Date Filed	#	Docket Text
07/11/2011		ELECTRONIC NOTICE of Reassignment. Judge Joseph L. Tauro added. Judge Richard G. Stearns no longer assigned to case. (Rynne, Michelle) (Entered: 07/11/2011)

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Oral History, Unprotected

Oral History, Unprotected
Inside Higher Education
Scott Jaschik
July 5, 2011

Researchers who conduct oral history have no right to expect courts to respect confidentiality pledges made to interview subjects, according to a brief filed by the U.S. Justice Department on Friday.

The brief further asserts that academic freedom is not a defense to protect the confidentiality of such documents.

With the filing, the U.S. government has come down firmly on the side of the British government, which is fighting for access to oral history records at Boston College that authorities in the U.K. say relate to criminal investigations of murder, kidnapping and other violent crimes in Northern Ireland. The college has been trying to quash the British requests, arguing that those interviewed as part of an archive on the unrest in Northern Ireland were promised confidentiality during their lifetimes.

Particularly now that the Justice Department has weighed in, the case could have an effect on oral history well beyond the archives at Boston College — and some experts predict a negative impact.

The U.S. position in the case deals with a number of issues raised by Boston College — some of which don’t relate to issues of academic rights. (For example, the college suggests that release of the records could endanger the peace process in Northern Ireland, and the U.S. rejects that view.)

On the issues related to the rights of researchers and colleges, the brief rejects all of the college’s arguments. The government argues that there is no right of confidentiality a researcher can grant that would withstand a subpoena. The Justice Department notes that Boston College acknowledged in its communication with research subjects that its confidentiality pledges assure privacy “to the extent American law allows,” which the government says isn’t very far in cases like this — whatever implication may have been read into that statement by researchers or by interview subjects.

Just because college researchers thought they could maintain confidentiality — and told sources they would do so — is no reason for the courts to go along, the brief says. Boston College wants “the court [to] enforce a promise simply because it was unwisely or mistakenly made,” the brief says. “This too should be rejected because it would turn the law on its head. To grant the motion to quash would encourage other persons engaged in collecting ‘oral histories’ — whether they be legitimate academics, or the purveyors of pulp fiction collecting ‘confessions’ about organized crime — to promise complete confidentiality, relying on the court to enforce that ill-advised promise.”

The brief goes on to argue that while professors’ documents have been protected from release in the context of civil lawsuits, this case involves serious criminal charges. Academic protections don’t apply, the Justice Department says.

“Courts have not recognized an ‘academic privilege’ akin to the attorney/client privilege or the Fifth Amendment protection against self-incrimination,” says the federal brief.

Many historians have been backing Boston College in the case. Clifford M. Kuhn, a historian at Georgia State University who is a past president of the Oral History Association, filed an affidavit on behalf of Boston College in which he said that if Britain’s request is granted, the field of oral history could be damaged.

“Trust and rapport are at the very core of the oral history enterprise,” he said in his brief. As part of the process of “informed consent,” interview subjects request certain levels of confidentiality, and researchers approve them. “The reason for this protocol is to foster candor and openness in the interview itself, so as to most fruitfully and fully enhance the historical record.”

If researchers can’t make such pledges, Kuhn said, they may face “self-censorship during the interview.” He added that “if promises made by a repository are not kept to narrators, there might be a damaging ripple effect on potential future oral history interviews and projects.”

Writing on the history blog Cliopatria, Chris Bray, a graduate student in history at the University of California at Los Angeles, called the Justice Department’s brief “unmistakably aggressive in tone and in scope.”

Kathi Westcott, associate counsel of the American Association of University Professors, said that the AAUP recognizes that colleges are not immune from subpoenas. But she said that the association rejects “the government’s contention that academic freedom is irrelevant to the court’s assessment of what circumstances necessitate a response to these types of subpoenas and the scope of response that is appropriate.”

Westcott said it was “disappointing to see the government take a position that disregards clear legal precedent protecting academic research.” She said that many courts have “recognized that academic scholarship is deserving of specified protection and that such protection requires a balancing approach in attempting to ensure that investigative demands are sufficiently factually based and narrow so as to limit the potential chilling effect these types of requests might have on future academic research.”

One leading expert said that it’s possible that both sides are correct in this case: oral history may not have the legal protections Boston College asserts, and the field may pay a big price if the British government prevails.

John A. Neuenschwander is the author of A Guide to Oral History and the Law, published in 2009 by Oxford University Press. In an interview, Neuenschwander said that he searched for precedents that would create a true legal privilege for oral history confidentiality pledges — and could not find any. “There is nothing to absolutely defend a promise of confidentiality,” said Neuenschwander, a professor emeritus of history at Carthage College and a municipal judge in Kenosha, Wis.

At the same time, Neuenschwander said that offers of confidentiality are common and much needed to create a frank record of history. “Let’s say you are working on a project on the Texas Legislature, and you talk to legislators right after a session. You promise to seal the interviews for 20 years, and they in turn can really let it rip because what they say won’t be out any time soon. That’s the bargain you make, and it gets the historian the fullest possible record,” he said.

Typically, these promises aren’t challenged in court by anyone. And Neuenschwander said that he thought it was safe to indicate that they would protect confidentiality — unless hit with a court order. “They just can’t give an ironclad guarantee.” (Boston College is private, but he noted that public colleges and universities also need to check state open records requirements on these issues to see if they can protect interview subjects.)

For many oral history projects, it is hard to imagine a subpoena, but trends in research may mean more controversies, Neuenschwander said. In the past decade, oral history projects have been much more likely than in previous years to examine recent history and to interview people who may have committed or who know about illegal acts, Neuenschwander said.

Social scientists who study dangerous or controversial behaviors (some of which are illegal) deal with these issues, Neuenschwander said, by simply making the names of research subjects anonymous. There is a process through which the National Institutes of Health can grant “certificates of confidentiality” for such research. But history research is different, Neuenschwander said, in that — eventually — historians want to say who did what. A long-term seal of an interview protects confidentiality while needed, but eventually lets people write about the players involved.

The Boston College case — involving charges of murder and an information demand from Britain — is highly unusual, Neuenschwander said. He said he hoped that people “don’t overreact” based on the outcome in this case.

“Given the publicity this case has gotten, I think it’s going to have a fallout effect of people not being willing to come forward,” he said. “It will have a chilling impact on future interviewees, and that’s very sad.”

Boston College, asked about the Justice Department’s brief, released a statement Monday that said: “In filing the motion to quash the subpoena, Boston College is asking the court to weigh the important competing interests in this matter in light of our contention that the premature release of the tapes could threaten the safety of the participants, the enterprise of oral history, and the ongoing peace and reconciliation process in Northern Ireland. Given the ongoing legal proceedings, we will reserve further comment until the matter is resolved by the court.”

— Scott Jaschik

The Whole Story Behind the Boston College Subpoenas

The Whole Story Behind the Boston College Subpoenas
The Chronicle of Higher Education
Chronicle Review
By Chris Bray

If you study living people who stir up controversial things overseas, this story is about you. In one possible ending, federal prosecutors seize your research materials and send them to a foreign government. Big pieces of the narrative of what happens next vanish, though, because it’s mostly written in secret. Despite the opacity, the lesson is clear: A significant threat to academic freedom has largely escaped notice.

A small piece of this story has been reasonably well covered in the news media. In May, Boston College received a federal subpoena for oral-history materials held in its John J. Burns Library. The documents filed in support of the subpoena were sealed, but one fact is evident: The U.S. Department of Justice is acting on behalf of the British government. The notes and audiotapes sought by the U.S. attorney in Massachusetts were created under the guidance of Boston College’s Center for Irish Programs, in its Belfast Project. Researchers recorded detailed interviews with former loyalist and republican paramilitary members who fought in Northern Ireland during three decades of the Troubles over the status of Northern Ireland.

Because frank discussion about armed civil conflict could get interviewees killed or arrested, researchers secured cooperation with a promise of strict confidentiality until the interviewees’ deaths. Now the subpoena threatens that promise. Dolours Price, one of the two members of the Provisional Irish Republican Army whose interview tapes are being sought, is still alive. If the Justice Department succeeds, a private discussion about historically recent political violence in Northern Ireland will be sent home, for purposes that are at best unclear, into the setting of a recent and fraying peace. In fact, that has already happened: The second Provisional Army interviewee, Brendan Hughes, died in 2008. Boston College has already turned over his interview materials, while trying to quash the subpoena for its interview with Price.

Promises of confidentiality are always problematic in oral-history scholarship. In a legal guide to the field, John Neuenschwander says “the law is quite clear”: Guarantees of secrecy “do not survive a subpoena.” But aggressive action against scholarly secrets threatens to eliminate the very materials that governments may wish to use. That is the warning in an affidavit in the Boston College case by Clifford M. Kuhn, past president of the Oral History Association, who cautions that once potential sources see the confidentiality of materials breached, “they will be far less likely to take part in such activities.” Turn scholarship into a police instrument, and scholarship shrivels into silence.

These pieces make up the story that has appeared in newspapers. The rest is more troubling.

More than 30 years ago, national governments began to simplify and accelerate the process by which they could ask other governments to assist with criminal investigations. A new type of agreement, the Mutual Legal Assistance Treaty, known as MLAT, gave police a way to get direct investigative help from other countries. Before the creation of such treaties, justice systems communicated across national borders through diplomatic channels. Signatories to the new treaties each now designate a “central authority” for receipt of foreign requests. In the United States, that is the Office of International Affairs, part of the Criminal Division of the Justice Department. Diplomats don’t need to be involved.

The United States has several dozen of these treaties with other countries. You can find them on the State Department Web site by searching for “Treaties in Force.” The United States ratified its first MLAT in 1976, and the other party to that treaty gives a hint of what officials had in mind. They started with a financial center, Switzerland. Since then, treaties have mostly been used to control money laundering, cybercrime, and the flow of funds for terrorist organizations, arms traffickers, and drug cartels.

But those boundaries are usual, not inevitable. A 1996 report from the Senate Committee on Foreign Relations describes mutual legal assistance as an “obligation” imposed on treaty signatories. While authorities have some leeway to refuse requests, they are generally expected to say yes. That requirement drags American law enforcement into problematic investigations, as the committee report makes clear: “Most, but not all, MLAT’s have covered a broad range of crimes with no requirement that a request for assistance relate to activity that would be criminal in the requested State.” When another country regards its political dissenters and antiregime activists as criminals, the Department of Justice can be asked to adopt that position as an investigative proxy. The United States has agreed to help other countries investigate “crime,” wherever that word may take us.

Nor are the boundaries around the concept of investigation well defined. The same Senate report explains that the MLAT between the United States and the United Kingdom obligates the signatories to assist one another with legal “proceedings,” which can include civil-asset forfeiture or the imposition of civil or administrative sanctions by any tribunal. You would have to work hard to come up with broader parameters: Any agency conducting any kind of administrative investigation or hearing may have recourse to investigative assistance by the Justice Department.

There are exemptions, but they are defined with similar imprecision. The U.S. government can refuse to provide assistance if doing so would diminish American sovereignty or security, or if it would harm some other “essential interest,” or if it “would be contrary to important public policy.” Those are conditions that protect governments, not citizens—or scholars or archives. One condition in the treaty with Britain verges on reassurance, however, the Senate report tells us: “Requests related to political offenses usually are excepted.”

To understand how that undefined exemption works in practice, though, look again at the subpoena delivered to Boston College. News reports have sugested that the British request for Belfast Project interviews originated with the Police Service of Northern Ireland, the successor agency to the Royal Ulster Constabulary. The identities of the Provisional Army members whose interviews are being sought suggests investigators are looking for information about paramilitary murders that took place during the Troubles.

There are many problems with that claim. The first is that the Belfast Project recorded interviews with paramilitary members on both sides of the conflict; the British government is only seeking those of republican militants. The Ulster Volunteer Force, the Ulster Defence Association, and other loyalist paramilitaries get a pass. Crime, or politics?

The second problem is what the British investigation intends to accomplish. So far, that point is a matter of guesswork. But it’s not hard to guess. The British request follows a newspaper interview Dolours Price gave last year in which she discussed the 1972 murder of Jean McConville, a Belfast widow (and mother of 10 children) killed by the Provisional Army as a suspected informant. Brendan Hughes, the other interviewee whose tapes were sought, also discussed McConville’s murder in his Belfast Project interview, a fact disclosed in a book published after his death. So the British government is seeking only two interviews from a larger project, and both interviewees have spoken about the same unsolved murder.

But none of those connections mean that the police are conducting a murder investigation, in the usual sense of the term. A 2006 report from the Police Ombudsman for Northern Ireland determined that the police had never bothered to investigate McConville’s murder. Commenting on that report, the chief constable of the police service admitted it was almost certainly too late to solve and prosecute a then 34-year-old murder, especially one that had been ignored in the first place.

So what’s the point of an investigation that no one really believes will lead to arrests and convictions? Both Hughes and Price have claimed that their commander was Gerry Adams, the longtime Sinn Fein leader, who has always denied having been a member of the Provisional Army. While the audiotapes of the two Belfast Project interviews have no use in court against McConville’s murderers, they promise to give the British government the voices of former members saying that Adams belonged to the group. Acting under the terms of a treaty that compels them to help another government solve crimes, the Justice Department is using the subpoena process to gather materials that can embarrass the principal antagonist of the British government in Northern Ireland.

On paper, Mutual Legal Assistance Treaties draw a boundary between crimes and political offenses. In practice, that line blurs.

The implications for academic researchers are clear and disturbing. Recently, the Republican Party of Wisconsin used public-rec­ords laws to gather messages from the state e-mail account of William Cronon, a professor at the University of Wisconsin at Madison who had publicly criticized the state’s Republican governor. Responding to that request, the university’s lawyers were able to carve out a broad range of exemptions that protected Cronon’s right to communicate privately with students and people discussing continuing research with an academic professional. Clear statutory language and well-settled case law provided unambiguous protection against a politically motivated inquiry.

No such clarity exists when foreign governments use MLAT’s to pursue information on American campuses, a process untested and hopelessly opaque. I traded e-mails with a press officer at the Department of Justice’s Criminal Division recently, trying to get general information about how federal prosecutors evaluate requests for mutual legal assistance from foreign governments. The answer to every question was the same: We will not comment in any way. A sealed request for a federal subpoena and a news-media blackout leave us to wonder what our government is doing on behalf of a foreign government, and why. Its officials simply won’t say.

Boston College is fighting in court to protect Belfast Project interviews from disclosure. It had asked the United States District Court in Boston to quash the subpoena for its records on the grounds that release could threaten the safety of interviewees, the continuing peace process in Northern Ireland, and the future of oral history. On July 1, the Justice Department filed a response to the motion to quash, dismissing academic freedom as a legally meaningless “quasi-privilege” and saying the college had offered “no claim of a cognizable federal privilege.”

The outcome will have implications far beyond a single campus. There is no reason to leave the question to the courts. Universities and professional organizations like the American Association of University Professors and the American Historical Association belong in this fight, pressuring the Justice Department to proceed with greater care. The boundaries around MLAT’s are a political problem, and they will be shaped by political efforts. Foreign governments have opened a door to confidential research material held on American campuses. That door must be closed and locked.

 

Chris Bray is a Ph.D. candidate in the history department at the University of California at Los Angeles. He blogs regularly for Cliopatria.

Boston College (Cont.): Fixing a Broken Frame

Boston College (Cont.): Fixing a Broken Frame
Cliopatria – History News Network
Chris Bray

News reports frame the federal subpoena for confidential interview materials at Boston College as a threat to oral history scholarship. This is how the framing began; nearly two months later, this is how it continues.

But this framing misses the point. The Department of Justice did not say, in its friday court filing, that academic freedom is a meaningless claim of privilege in cases involving oral history research. What they said is that academic freedom is a meaningless claim of privilege, full stop. They did not say that the courts have no role in evaluating foreign requests made under the terms of mutual legal assistance treaties for oral history materials; they said that the courts have no role in evaluating foreign requests made under the terms of mutual legal assistance treaties.

Confidential oral history materials are at risk. So are embargoed correspondence, memoirs, journals, and other personal papers given to archives. So are the research notes of academics who study war crimes and dissident political movements overseas. Why on earth not? What does anyone see in the government’s claims, here, that draws a clearly bounded target around oral history alone?

The federal government has shoved open a door to archives and research material, period.

And the potential damage keeps going. On both sides of the Irish border, an independent commission is searching for the bodies of the Disappeared, relying on information from confidential informants to find the bodies of people killed and buried by paramilitaries during the Troubles. The lead investigator for that commission is now warning that the Boston College subpoenas are a threat to the commission’s sources, as former paramilitary members worry that promises of confidentiality are made to be broken.

The threat is not simply to oral history. It goes on and on.

Boston College (Cont.): AUSA Todd Braunstein, the Infamous Irish Politician

Boston College (Cont.): AUSA Todd Braunstein, the Infamous Irish Politician
Cliopatria – History News Network
Chris Bray

One new fact, twice the clarity.

In two previous posts, I argued that the federal subpoena for confidential oral history materials held at Boston College was probably not what it seemed. Pursuing the records of historical interviews with former members of the Provisional IRA following a request from the British government, the Department of Justice claims to be aiding a murder investigation; the more likely reality is that they’re helping to frame a purely political case against Sinn Fein after its recent successes during the February election in the Republic of Ireland. I won’t rehash that claim here, but you can follow the two links above for background.

So then, on Friday, the DOJ filed its response to BC’s motion to quash the subpoena. I discussed that response here, if you missed it.

But here’s one more exceptionally interesting thing about that response, which you can read here. It’s on pg. 2, at the start of the section titled, “Procedural History” (emphasis added): “On March 30, 2011, the United States submitted an application to the Court pursuant to the Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland…”

Before the DOJ filed this response, all that was known publicly was that BC got a subpoena in early May; the first news stories appeared around the middle of that month. But now it’s clear that the DOJ first walked into court with their request a little over a month earlier. Subtract a week or two for the DOJ to process the request and prepare its filing. Subtract a week or two for the British government to decide on, prepare, and transmit the request.

The general election in the Republic of Ireland that brought Gerry Adams into the Dail took place on February 25, 2011.

The murder of Jean McComville went without investigation for nearly forty years.That fact is undisputed. But then, at the very moment that Gerry Adams was elected to a parliamentary seat that he was willing to take — in an election that brought Sinn Fein back from the dead in the Republic of Ireland — it became suddenly urgent to get to the bottom of the McConville murder. And the way to do that was to subpoena only the interviews of the very two people who are publicly known to have said that Adams approved the killing.

The British government is engaged in politics, not a murder investigation. No one is going to be convicted on murder charges as a result of the DOJ’s subpoena. Everyone involved knows that. The point is politics. And the DOJ is playing along.

Assistant U.S. Attorney Todd Braunstein, you got a request for a subpoena of material that would damn Gerry Adams, and you got it immediately afteran election that saw a significant new political development for Adams and Sinn Fein — and you couldn’t figure out what you were being asked to do?

Or he knew exactly what he was being asked to do, and he cheerfully did it anyway. Which would be worse?

It’s a shameful abuse of power in either case.

DOJ on Boston College: Academic Freedom a Legally Meaningless “Quasi-Privilege”

DOJ on Boston College: Academic Freedom a Legally Meaningless “Quasi-Privilege”
Cliopatria – History News Network
Chris Bray

On Friday, the Department of Justice filed its response to the motion by Boston College to quash a federal subpoena for confidential oral history materials related to Northern Irish paramilitary violence. The government’s response is unmistakably aggressive in tone and in scope. Read the briefhere. The most remarkable claims, with emphasis added:

1. In its Mutual Legal Assistance Treaty with the United Kingdom, the federal government has traded away the role of the courts, leaving discretion only in the hands of the executive branch: “Notably, the US-UK MLAT reserves the authority [to] decline a MLAT request, or to limit its scope, to the Attorney General, not the courts” (pg. 8). Under the terms of the treaty, an assistant U.S. attorney is acting as a “commissioner” to make a determination regarding the validity of the request and to act upon it (pg. 3). Federal law “does not vest the U.S. courts with discretion to evaluate MLAT requests where none exists under the applicable treaty” (pg. 9). Federal case law reflects “the narrow scope of the Court’s discretion in this case,” concluding “that district courts should not evaluate MLAT subpoenas under the standards applicable to domestic subpoenas” (11-12). Furthermore, the courts may not evaluate the political implications of information sought by a foreign government under the terms of an MLAT. “This is precisely the type of assessment left to the Central Authority of the United States, here the Attorney General, and the Central Authority in the UK” (pg. 19, and  pg. 2). In short, the federal government has granted the British government a mechanism to obtain what are effectively writs of assistance, subject to mandatory execution and beyond review or protest. This is an ironic historical development.
2. Academic freedom is a legally meaningless “quasi-privilege,” and BC’s attempt to apply protected status to academic research makes “no claim of a cognizable federal privilege” (pp. 10-13, with quotes from the beginning and end). Academic researchers have fewer protections against compulsory disclosure than journalists, since “the courts have long recognized the unique role which news reporters play in our constitutional system.” In contrast, “[t]he limited protections afforded news reporters in the context of a grand jury subpoena should be greater than those to be afforded academics engaged in the collection of oral history” (pg. 14). Journalism is a protected activity; academic research is not.
3. While the courts have no discretion in considering subpoenas issued pursuant to MLATs, the executive branch doesn’t have much, either: “In this case, the US-UK MLAT requires that, ‘the Requested Partyshall take whatever steps it deems necessary to give effect to requests received from the Requesting Party’…Under the US-UK MLAT, the United States is obligated to obtain the documentary evidence requested in this instance and provide it to the authorities in the UK” (pp. 6-7; emphasis in original).

So when foreign governments that have entered into MLATs with the United States wish to demand access to confidential academic research materials, the executive branch is compelled by treaty obligations to say yes, the courts have no discretion to say no, and “academic freedom” is a meaningless claim.

Clear enough?