Boston College: Time for Resignations
Boston College has done something disgraceful, and everyone involved should lose their jobs. I’m willing to be talked out of that position, but the evidence that follows sets a high bar for that possibility.
Now. This post will be long and difficult to read, with a large set of embedded documents (that you can enlarge to full screen, if you have trouble reading them). But when you make it to the end, you’ll clearly see two things:
1.) BC has shamed itself as an institution, and has unnecessarily broken a set of extraordinarily serious promises, and
2.) You don’t have to take my word for it, because the evidence speaks clearly, and the documentary evidence appears right here on the page.
Some background: Boston College sponsored the Belfast Project, an effort to secure interviews with former members of paramilitary organizations on both sides of the Troubles in Northern Ireland. Because such a project would require people to speak frankly about their participation in acts of unlawful violence, the project’s researchers promised participants that their interviews would be embargoed until their deaths. Each tape and transcript of an interview with a former member of the Provisional IRA, for example, or the Ulster Volunteer Force, would be closely held in BC’s Burns Library, securely locked away from historians and journalists until the contents of the material could no longer cause legal harm or political retribution to the interviewee.
BC and its researchers took the sensitivity of their work very seriously, shielding their work from disclosure just as they shielded the content of their interviews. For example, in a discussion over Skype on Dec. 27, Irish journalist and Belfast Project director Ed Moloney told me that he discussed interviews with his researchers only by encrypted email, using PGP to protect their messages. I’ve confirmed that claim with other participants.
At BC, the academics responsible for commissioning and managing the project shared that commitment to secrecy. For example, in a March 23, 2010 email message sent at 2:50 PM, BC Professor Thomas Hachey, the executive director of the university’s Center for Irish Programs, reassured Belfast Project researcher Anthony McIntyre that “B.C. is firmly and unconditionally committed to respecting the letter and intent of what is a contractual agreement never to release any of the material to anyone unless given permission in writing (notorized) beforehand by the participant, or until the demise of a participant.” (McIntyre recently forwarded the message to me.)
Then, in March of this year, the British government asked the U.S. Department of Justice to subpoena some of the embargoed Belfast Project materials, pursuant to an investigation of the 1972 murder of Jean McConville by the Provisional IRA.
For more background, see my posts at Cliopatria, starting with this one, or see this at the Chronicle of Higher Education.
Now, this is very important: Even if you believe that BC’s promise could not reasonably protect interviewees from a government subpoena, what follows will show you that BC has behaved with unconscionable neglect and recklessness. You can believe that BC has an obligation to hand over subpoenaed material and still see that the university has failed in its responsibility to protect its Belfast Project interviewees.
I’m going to start backwards, to immediately show you the posture that BC has adopted in the face of this government effort to secure embargoed and confidential academic research materials. Immediately below is an extraordinary Dec. 27 letter, hand-delivered to the federal district court in Boston, from Jeffery Swope, BC’s outside counsel for the Belfast Project subpoenas. Look at the paragraph on pg. 2 that begins, “The Clerk’s notes of the Court’s order…”
Dec 27 in Cam Receipt
The DOJ is pursuing two sets of subpoenas: First, they have successfully subpoenaed interviews with two specific Belfast Project interviewees, Dolours Price and Brendan Hughes. Second, they have obtained subpoenas for “any and all interviews containing information about the abduction and death of Mrs. Jean McConville.” (I’ll show the evidence for that subpoena language in a moment.)
The Provisional IRA has admitted to that abduction and killing — and told the police, in 2003, where to find McConville’s body — and a subpoena for information about McConville’s death is necessarily a subpoena for interviews with members of that organization. The court has acknowledged as much, as BC’s lawyer writes in this letter. There is no reason for a subpoena of material relating to McConville’s murder to cause BC to produce interview material with members of loyalist paramilitaries, the enemies of the organization that killed McConville.
But here’s this remarkable occurrence in which the government “asked” BC to review the loyalist interviews in its confidential collection and see what it should turn over, and “Judge Young stated that the Court was eager to have, but not ordering, Boston College to do so.”
The government has “asked,” the court is “not ordering”…and “Boston College is working with the United States Attorney’s Office to obtain a list of search terms for Boston College to use in searching the pdfs of the non-IRA transcripts for information that relates to the abduction or death of Mrs. McConville, which transcripts, if any, will then be submitted to the court for review in camera” (emphasis added).
Of course, “non-IRA” interviews are not likely to contain information about an IRA-conducted killing. But whatever the likelihood, BC is offering to turn over material that has not been subpoenaed, that the DOJ is only requesting and that the court is “not ordering” that they turn over.
I’m repeating myself, but here’s Thomas Hachey, executive director of BC’s Center for Irish Programs, on March 23, 2010: “B.C. is firmly and unconditionally committed to respecting the letter and intent of what is a contractual agreement never to release any of the material to anyone unless given permission in writing (notorized) beforehand by the participant, or until the demise of a participant.”
How do you square that statement with BC’s offer to review and possibly hand over material that the court has “not ordered” them to provide?
But this is just a hint about BC’s attitude. Look farther, and it gets so much worse.
The first subpoenas BC received, the ones for interviews with two specific people, were served in early May. The second set of subpoenas, the broader set seeking “any and all interviews containing information about the abduction and death of Mrs. Jean McConville,” were served on BC in early August. The court order giving permission for the subpoenas (formally issued by a DOJ lawyer acting as a “commissioner” under the terms of an international treaty) is sealed, but the response from BC’s lawyer is available on the federal court system’s document website, and is embedded immediately below.
Motion to Quash New Subpoenas 8-17-11
See pg. 2: “A second set of subpoenas, each dated August 3, 2011, were served and by agreement accepted by counsel for Boston College on August 4, 2011.” Remember that date.
Both times it received subpoenas for Belfast Project materials, BC filed motions to quash. On December 16, the court rejected those motions and ordered BC to produce the subpoenaed material for in camera review. (More about that review later.) Here’s the court’s memorandum and order, with the order appearing on pg. 48:
The relevant portion: “This Court ORDERS Boston College to produce copies of all materials responsive to the commissioner’s subpoenae to this Court for in camera review by noon on December 21, 2011, thus allowing time for Boston College to request a stay from the Court of Appeals.”
Below, BC’s response.
Receipt for in Camera Filing
See especially Items # 5 and 6, which describe affidavits filed under seal regarding BC’s knowledge of the Belfast Project material in its collection. Robert K. O’Neill is the Burns Librarian at BC, the person who has held these materials since their delivery to the university.
The good news is that we can tell what information these affidavits contain, even though they’re filed under seal. First, and I apologize for being tedious, go back up to the first document embedded in this post, “Dec 27 in Cam receipt.” Look at the longest full paragraph on pg. 2 for this statement from BC’s lawyer, describing the university’s “responsibility to identify specific interviews that it has determined to be germane” to the broad second set of subpoenas: “As I stated in the conference held on December 20, 2011, and Dr. O’Neill stated in his affidavit dated December 21, 2011, Boston College has not made such a determination as to the individuals formerly associated with the IRA.”
Nor did Anthony McIntyre, who conducted the IRA interviews, help BC to determine which interviews were germane to the subpoena. BC’s outside lawyer, Jeffrey Swope, first asked McIntyre to help BC to identify which interviews were germane to the August 4 subpoenas in an email sent to McIntyre on the evening of December 20. I know this because McIntyre forwarded Swope’s email to me. Here’s how Swope’s December 20 email request for help ends: “Judge Young directed that Boston College file an affidavit in response to his order by tomorrow, December 21, at noon EST. I would be grateful to hear from you as soon as you can contact me.”
So BC got a set of subpoenas, for material in its possession, on August 4. Ordered on December 16 to turn over the materials relevant to the subpoena, BC tried on December 20 to make a first effort to find out what materials in its collection were germane to the August 4 subpoena, with a hearing scheduled on the matter before a federal judge the very next day.
August 4 to December 20: 139 days, including December 20.
Here comes the big finish. Not having figured out what material in its possession was germane to the second set of subpoenas, BC lost the ability to hand over only those portions of the IRA interviews. From the court clerk’s notes of a December 22 hearing:
|Filed & Entered:
|Docket Text: ELECTRONIC Clerk’s Notes for proceedings held before Judge William G. Young: Hearing held on 12/22/2011. After addressing counsel and hearing from counsel, the Court Orders the following: Boston College is to deliver all remaining 192 transcripts of IRA interviewees to the Court for in camera review by Noon, Tuesday, December 27, 2011. Copies are acceptable to the Court. The Court reminded Boston College of its responsibility to identify specific interviews that the Burns Library and Boston College have determined to be germane, per the hearing on Dec. 20, 2011 and accompanying clerk’s notes.
Go back up to the first embedded document in this post, “Dec 27 in Cam receipt,” to see BC’s statement that it has now handed over its entire collection of interviews, in full, with IRA members.
So: Boston College now offers to review, and possibly turn over, material that the DOJ has “asked” for and that the court has “not ordered” that it produce, while the university has also turned over complete transcripts and tapes of interviews that the DOJ did not subpoena in full, because they didn’t bother to figure out — in 139 days — what material was germane to the subpoena.
Thomas Hachey, executive director of BC’s Center for Irish Programs, March 23, 2010: “B.C. is firmly and unconditionally committed to respecting the letter and intent of what is a contractual agreement never to release any of the material to anyone unless given permission in writing (notorized) beforehand by the participant, or until the demise of a participant.”
I have invited BC to respond. If they do, I’ll post their response in full. I did ask BC spokesman Jack Dunn, in a Dec. 19 email message, what course BC was planning to take as it decided what material to hand over to the court. Dunn replied, “At this stage I cannot answer your question. We intend to cooperate with the Court, but no specific process has yet to be determined.” You can see for yourself how well that turned out.
Meanwhile, a final note about the significance of the judge’s in camera review of these materials. A few days ago, BC gave the court the transcripts and tapes of the interviews in its collection with Dolours Price. The judge has already completed his in camera review, and ordered on December 27 that the DOJ be given Price’s full interviews “on or before” December 30:
Young Dec 27 Order
By the standard the court has so far adopted, anything BC turns over to the court will end up at the U.S. Attorney’s Office, and from there to the British government. Everything anyone said to BC: right to the British government.