Boston College Must Release Oral-History Records, but Court Will Review Them First

Boston College Must Release Oral-History Records, but Court Will Review Them First
By Jennifer Howard
Chronicle of Higher Education
December 19, 2011

A federal court has denied Boston College’s motion to thwart a government request for sensitive oral-history records. But the court will review those records confidentially on Wednesday before it decides what, if anything, must be handed over to federal authorities.

A spokesman for the college said it was happy with the decision because the court acknowledged the need to protect confidential research.

Friday’s ruling, by the U.S. District Court in Boston, rejected the college’s request to quash the subpoenas for material from what’s known as the Belfast Project. In the project, from 2001 to 2006, researchers and journalists conducted interviews with paramilitary fighters and others who lived through the decades-long sectarian conflict Northern Ireland, always with the promise that the talks would be confidential until they died.

Boston College holds the tapes and transcripts of the project, including interviews with two members of the Provisional Irish Republican Army, Dolours Price and Brendan Hughes. They alleged that Gerry Adams, head of Sinn Fein, the IRA’s political arm, ran a kidnapping ring suspected of involvement in the death of Jean McConville, a Protestant mother of 10 who was kidnapped and killed in 1972. Mr. Hughes died in 2008, and the college has turned over the records of his interviews.

The U.S. Department of Justice subpoenaed the interview records on behalf of the British government. Under what’s known as a mutual-legal-assistance treaty, the two countries help each other in certain criminal proceedings. The Belfast Project records are being sought “in reference to alleged violations of the laws of the United Kingdom,” the court said, including kidnapping and conspiracy to commit murder.

‘Heightened Scrutiny’

The case has created concern among scholars, especially oral historians, who rely on confidentiality in the conduct of their research. Chris Bray, a Ph.D. candidate in history at the University of California at Los Angeles and a regular contributor to the history blog Cliopatria, has been a vocal critic of the proceedings.

The court’s ruling “means that there’s no such thing as confidential research, if a foreign government wants your research material,” he wrote in an e-mail to The Chronicle. “Academic researchers have fewer protections from foreign governments than we do from our own government. The way the DOJ [the Justice Department] applies mutual-legal-assistance treaties, and the way the courts interpret them, the door to the archives is wide open.”

In Friday’s ruling, Judge William G. Young agreed with Boston College’s position that requests for “confidential academic information” must be treated with “heightened scrutiny.” He noted that forced disclosure generally hurts “the free flow of information.” But he also said that the allegations involved were serious and “weigh strongly in favor of disclosing the confidential information.”

Boston College is “very pleased” with the decision, according to the spokesman, Jack Dunn. “It’s the outcome we hoped for,” he said. “In agreeing to review the research materials in camera,the court granted Boston College the relief it was seeking by providing us with guidance on what materials, if any, are relevant and need to be produced.” The ruling “recognizes the importance of protecting academic research and oral-history projects,” he said.

The college will not seek a stay of the ruling, Mr. Dunn said. “We took this legal position,” he said, “to protect the enterprise of oral history, to protect the participants who had been assured of confidentiality, and to protect peace and reconciliation in Northern Ireland that we have promoted as a university for more than four decades.”

Boost for British bid to obtain IRA tapes from US university

Boost for British bid to obtain IRA tapes from US university
By Jim Dee
Belfast Telegraph
Monday, 19 December 2011

British Government efforts to obtain taped interviews that former IRA members gave to an American university a decade ago have been given a major boost.

A US federal judge has rejected motions by Boston College and its researchers to dismiss the case.

Among the interviews sought is one given by former IRA prisoner Dolours Price, who, according to a newspaper, has implicated Gerry Adams in the 1972 killing of mother-of-10 Jean McConville.

However, US District Court Judge William G Young stopped short of ordering the university to surrender the tapes to US authorities.

Instead, he directed the college to present to him all its archived material by December 21, so he can review it ‘in camera’ before rendering his final verdict.

In addition, Judge Young said the December 21 date will give the college time to “request a stay from the Court of Appeals”, thus opening the possibility that the already protracted legal battle may continue for many more weeks yet.

Expressing his disappointment at the ruling in a blog post, Irish journalist Ed Moloney, the overseer of the project, said that he and his fellow researchers “confidently expect the college to take up Judge Young’s implied invitation to lodge an appeal”. Boston College’s oral history archive, officially titled the Belfast Project, involved interviews with dozens of republican and loyalist paramilitaries.

Republican interviews were conducted by former IRA prisoner and independent journalist Anthony McIntyre.

According to Moloney, McIntyre and Boston College, interviewees told their stories after being assured that those interviews would only be published after they’d died.

To date only two interviews — former IRA man Brendan Hughes and former UVF member David Ervine — have been published.

They formed the basis of the Moloney-edited book Voices From The Grave, which was published in 2010.

Both men are now deceased.

The stand-off over the tapes began last May when the US Justice Department, acting on behalf of the British Government, subpoenaed tapes from the college. When the case initially hit the headlines, it was reported that all of the tapes — loyalist as well as republican — were being sought.

It later emerged that only the tapes involving some 26 IRA members were at issue, and more specifically the tapes with information about Mrs McConville’s slaying.

She was numbered among the Disappeared and her body was eventually discovered at Shelling Hill beach in Co Louth in 2003.

The fact that no loyalist tapes were requested, coupled with the fact that Hughes also claimed that Adams authorised Mrs McConville’s murder, has led critics of the case to claim that it is politically-motivated and is aimed only at embarrassing the Sinn Fein president.

Federal Judge Refuses to Quash Subpoenas Seeking Confidential Records

Limited Right to Confidentiality
Scott Jaschik
Inside Higher Ed
December 19, 2011 – 3:00am

A federal judge on Friday ruled that he would conduct a private review of confidential research interviews by Boston College to determine whether they should be turned over to the British government, as it and the U.S. Justice Department have requested.

The decision by Judge William G. Young said that Boston College and the two governments both have “significant interests” in their positions in the dispute — with the governments seeking to enforce the law and treaty obligations, and the college seeking to preserve confidentiality promised to research subjects.

In different parts of the decision, Judge Young sided with each party. In support of the government position, he rejected the college’s request to quash the subpoenas, and said that the material they were seeking was important and related to legitimate government interests (law enforcement). But he sided with the college (and its scholarly supporters) in saying that academic freedom issues deserve consideration here. In so doing the judge directly rejected government claims in the case. Similarly, the judge discarded the notion that courts should simply grant such subpoenas without a review.

The case is attracting significant interest in Ireland and Britain — and among historians in the United States who fear the implications the dispute could have for those who conduct oral history interviews. Many such interviews are conducted under pledges of confidentiality for set time periods or (as in the case of the Boston College interviews) until the deaths of the people being interviewed. Researchers say that confidentiality pledges allow scholars to obtain valuable information over the long run — from people who would be reluctant for legal, political or safety reasons to talk frankly if the interviews were made public in the short term.

The Boston College case is a perfect illustration, researchers say, of both the promise of oral history and the complications raised by demands that confidentiality pledges be broken.

The materials in question are part of the Belfast Project, a set of interviews with key figures during “the Troubles,” a period of violence in Northern Ireland from 1969 that extended for several decades. The interview subjects for the project include people who were affiliated with groups accused of numerous violent acts. The British government maintains that access to the records would assist in investigation of serious criminal acts, including murder. The British government, with backing from the U.S. Justice Department, says that treaties between the United States and Britain compel the court to order Boston College to turn over the relevant records.

The U.S. government, acting on behalf of the British government, asserted that the court should just enforce the request for information. Judge Young rejected that idea, and said that while certain kinds of government requests deserve deference, there is no immediate requirement that courts simply enforce these requests.

In its various filings, the government also asserted that there were no academic freedom issues at play in the case — a position that alarmed many historians. A federal brief in the case said that courts “have not recognized an ‘academic privilege’ akin to the attorney/client privilege or the Fifth Amendment protection against self-incrimination.” Further, the brief said that granting Boston College’s request for consideration of academic freedom issues would have a dangerous impact.

“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 Justice Department argued.

But Judge Young said that the potential impact of a ruling on the ability of scholars to conduct research was relevant and appropriate to consider. While he did not recognize any broad immunity for academic documents, he noted evidence that Boston College collected this information in ways that assured research subjects of confidentiality. And he said that government requests “targeting confidential academic information deserve heightened scrutiny.”

The ruling said that it is appropriate to consider the college’s “attempts to ensure the long term confidentiality of the Belfast Project, as well as the potential chilling effects … on academic research.”

At the same time, Judge Young said that the government’s requests were legitimate. Some critics of the government’s request for information have questioned the motivation of the British government in seeking the information, suggesting that it is seeking political revenge against proponents of Northern Ireland’s leaving British rule. But Judge Young made clear that he views the requests for information as part of a law enforcement process — and that view may make it hard for the college to prevail, even with the judge considering the impact on academic research.

“The United States government’s obligations under the [treaty with Britain] as well as the public’s interest in legitimate criminal proceedings are unquestioned,” he wrote in the conclusion of his 48-page opinion. And earlier in the opinion, he first outlined the crimes Britain is investigating — murder, conspiracy to murder, incitement to murder, aggravated burglary, false imprisonment and kidnapping, among others. Then, he said: “These are serious allegations and they weigh strongly in favor of disclosing the confidential information.”

Judge Young ordered Boston College to turn over the documents by noon on Wednesday, but noted that he was giving the college time to appeal for a stay.

The college, however, says it will comply with the ruling, and has no plans to seek a stay. “The court’s decision recognizes the importance of protecting confidential oral history material gathered for academic research, and the need to weigh those considerations against the compelling interests of law enforcement,” said a statement from the college. “Boston College is grateful that the court is willing to undertake the review of the materials in the archives and will cooperate fully with the court as it carries out its review.”

Chris Bray, a graduate student in history at the University of California at Los Angeles who has been blogging about the case at Cliopatria, wrote Friday that Boston College should ask for a stay, and said that academic leaders have not recognized the significance of the case. He said he didn’t have “much hope” that Boston College would appeal, given “the politeness of their arguments before the court.”

Added Bray: “[A]cademia as a whole has been almost entirely silent about these subpoenas. That silence, and the indifference it implies, will continue. After all, we’re only talking about tearing down the confidentiality of academic research. The mere governments of the world are nowhere near as terrifying and powerful as a real behemoth like the Wisconsin GOP.Academics have a shrewd eye for the really important stuff.”

Why is President Obama trying to damage the Irish peace process?

Why is President Obama trying to damage the Irish peace process?
Feds working with British agents win access to Boston College IRA tapes
by Niall O’Dowd
Sunday, December 18, 2011 at 07:01 AM

President Obama’s administration is damaging the still fragile irish peace process.

Federal prosecutors acting for the British won a major victory on Friday when Judge William Young ordered Boston College to turn over the transcripts.

Strange as it may seem the tapes have the potential to damage the peace process.

The British security forces MI5 etc., are looking for any dirt they can find on Sinn Fein leader Gerry Adams among others on those tapes.

Amazingly, when he was here recently, Northern Secretary Owen Paterson was clearly deeply embarrassed by what his security forces, likely without reference to him, had succeeded in doing.

They have a long vendetta against Adams and will use whatever means necessary, including endangering the peace process to get him.

The Obama administration is cooperating openly with this travesty which is damaging for them among Irish Americans to say the least.

IRA veterans, believing the tapes were being kept private until a lengthy time had elapsed spoke freely about past incidents. Now their words may be use against them and others.

The British securocrats are only seeking the IRA tapes, none from the Loyalists who spoke to the oral history project – that in itself is all you need to know.

The Boston College administrators were journalist Ed Moloney and academic Anthony McIntyre. Both men are long time critics of Adams and the IRA personnel chosen to be interviewed reflect that.

BC has stated that turning over the materials will endanger the safety of people involved in the project.

Judge Young, who also presided over the Richard Reid shoe bomber case, set aside BC’s objections saying that the recordings could be relevant to murder and kidnapping investigations and that the US had an obligation under a treaty with Britain to hand over the materials

“These are serious allegations, and they weigh strongly in favor of disclosing the confidential information,’’ Young wrote.

Assistant US Attorney John McNeil, praised the judge. He said the ruling indicates that “the US government’s obligation [under the treaty with Britain and] the public interest in this criminal inquiry are compelling.’’

Which is load of nonsense. People have buried the past and got on with the future in Northern Ireland and created a model of conflict resolution that is the envy of the world.

The Obama administration and the British security hawks are doing their damndest to bring that down.

That’s what is at stake at Boston College.

Judge orders Boston College to hand over IRA secret tapes – Major setback in effort to protect IRA oral history interviews

Judge orders Boston College to hand over IRA secret tapes
Major setback in effort to protect IRA oral history interviews
By JOHN O’BRIEN, Staff Writer
Published Saturday, December 17, 2011, 7:47 AM

A federal judge has ordered Boston College to turnover oral histories of IRA interviews requested by British authorities.

In a 48 page ruling, Judge William Young ordered the handover but did not say they had to be given over immediately.

Federal prosecutors working at the behest of the British government have sought the tapes to see whether there is incriminating evidence against former IRA members on them.

Boston College had moved to quash the federal subpoena in search of access to confidential interviews with the former members of the Provisional Irish Republican Army (IRA).

The motion sought to prevent British authorities from using the oral tapes to investigate kidnappings and killings during the Troubles in Northern Ireland.

Conducted between 2001 to 2006 and known as the Belfast Project, the goal of the college’s academic project was to interview members of the IRA and other Irish paramilitary organizations about their activities during the Troubles. It was not, however, intended to become a tool of a wider government investigation.

All participants were assured their identities would remain confidential and that the interviews would only be released after their deaths. All of the transcripts are currently maintained by Boston College.

According to lawyers for Boston College, releasing the interviews would break the IRA’s so-called code of silence and could lead to punishment by death, according to their court filing.

“Our position is 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,” said Jack Dunn, a spokesman for Boston College, in a statement to The New York Times.

The case is being monitored closely by oral historians at the college, who are concerned that it could erode the trust between historians and interviewees, making it much more difficult to get people to speak unguardedly in the future.

“I think it’s wonderful that Boston College is fighting the subpoena,” Mary Larson, first vice president of the Oral History Association, told the Times. “What all of us in the oral history community are afraid of is this is going to have an incredible chilling effect on what we’re able to do.”

Response to Boston College decision

“We are naturally disappointed but we confidently expect BC to take up Judge Young’s implied invitation to lodge an appeal. One way or another this fight will go on. There are very important issues at stake – legal & political – that could adversely affect vital and essential US interests, both domestic & international. Not least among the latter is the Good Friday Agreement in which President Clinton, Senator Mitchell and virtually the entire American body politic invested so much energy, time, effort and not least their personal & national prestige to bring a seemingly intractable and bloody conflict to an end.

“As anyone familiar with the background to this case can attest, the enforcement of these subpoenas has the real potential to create an immensely destabilising political crisis in Northern Ireland. It comes at a time when the British government is refusing to properly investigate allegations of murder connived at by its own security and intelligence services. The double standards involved in all this will send a clear and unmistakable message to everyone in Northern Ireland, a message that reverberates down through the sad, tragic and bloody history of Ireland’s relationship with Britain.

“It would be an event of extraordinary irony that a decision of a court in a country which expended so much political capital to secure peace in Ireland could threaten all that was achieved over so many long and difficult years. Given Boston College’s long record of nurturing a resolution to the conflict as well as the solemn assurances to protect confidentiality given to those involved in this oral history project, we therefore look forward to an early announcement of the college’s intention to appeal.”

– Ed Moloney, Belfast Project director and Anthony McIntyre, lead researcher for the Belfast Project

“The Logical (and Unconstitutional) Conclusion of the Government’s Assertions”

Boston College: Final Post
Or, “The Logical (and Unconstitutional) Conclusion of the Government’s Assertions”
Cliopatria – History News Network
Chris Bray

In a decision released on Friday morning (entire document is below; orders are on pg. 48), a federal judge rejected the effort by Boston College to quash subpoenas for confidential oral history materials regarding the Troubles in Northern Ireland. The subpoenaed materials will first go to the court for in camera review, an opportunity for the judge to draw some boundaries around the release of particular portions of the records. But this review seems unlikely to mean very much, for reasons that I’ll explain in a few paragraphs.

Start with some cold comfort: During the same week that our morally diseased political class is moving toward the expansion and legal solidification of indefinite military detention, the court said out loud that the executive branch was making an outrageous argument about its own power and its relationship to the judiciary. “This Court is asked to determine what sort of discretion an Article III court has to review or quash a subpoena brought under the authority of the UK-MLAT,” Judge William G. Young writes (pp. 1-2). The United States in 2011: We’re arguing over whether or not the courts are allowed to review subpoenas, or just have to hand them out when the executive branch says so. Thomas Hutchinson was dignified and restrained in comparison to the governmental creatures of our own moment.

Take a moment to scroll down and look at the long blockquote at the top of pg. 15, which quotes an opinion from the 9th Circuit in another MLAT case; the 9th argued that the executive branch was trying to usurp judicial power, and “convert the judicial branch into a mere functionary.” Young finds that the DOJ is up to the same thing again, writing, “this Court wholeheartedly agrees that this is the logical (and unconstitutional) conclusion of the government’s assertions here.”

Amazingly enough, the judiciary declines to self-neuter, as if it still wants to be a whole separate branch of government: “This Court holds that a United States District Court has the discretion to review a motion to quash such a subpoena, under the statutory authority conferred by 18 U.S.C. § 3512 and the framework articulated in the UK-MLAT” (pg. 26).

But it’s all downhill from there. Most significantly, Young entirely accepts the premise that the subpoenas in question are being pursued as part of a serious criminal investigation, rather than as an act of political theater; nothing in his decision takes note of the fact that the crime being investigated was ignored for forty years by a politicized police agency. See pg. 41, for example (finding that the subpoenas are “relevant to a nonfrivolous criminal inquiry”), or pg. 45: “These are serious allegations and they weigh strongly in favor of disclosing the confidential information.”

This acceptance of premises can only have serious effects during Young’s in camera review: he does not perceive himself to be examining evidence that is being sought for political reasons and that will have political uses. How many boundaries is he likely to draw?

Young also closes another important door, finding that the courts cannot examine the DOJ’s treaty obligation to perform due diligence before executing an MLAT request from a foreign government.  “Unlike the motion to compel, the executive decision that the request is not subject to a specific limitation is not reviewable by this Court,” he writes. The DOJ can be all kinds of awful and useless in its consideration of foreign requests, and it’s nobody’s business but Eric Holder’s. The attorney general’s diligence is the attorney general’s business.

Still, a ray of light shines through one thin opening. Young’s decision signals, with flags and banners, that an appeal wouldn’t be a bad idea. That’s because some issues at hand have never been taken up by the 1st Circuit, the appellate court that includes Massachusetts, and some have never been examined by the courts at all. See the references to matters of “first impression” on pg. 16 and pg. 22.

The likelihood of an appeal, though, depends on a desire to fight on. The unmistakable public silence from Boston College, and the politeness of their arguments before the court, don’t inspire much hope. But then, academia as a whole has been almost entirely silent about these subpoenas. That silence, and the indifference it implies, will continue. After all, we’re only talking about tearing down the confidentiality of academic research. The mere governments of the world are nowhere near as terrifying and powerful as a real behemoth like the Wisconsin GOP. Academics have a shrewd eye for the really important stuff.

In other news, this will be my last post at Cliopatria. I thank everyone, and especially Ralph Luker, for the years I had a forum here.

BC Decision

Boston College: The Inextinguishable Rule of Law

Boston Collge: The Inextinguishable Rule of Law*
(*Knock on Wood)
Cliopatria – History News Network
Chris Bray

Below, a brief filed in federal court today by lawyers for two of Boston College’s Belfast Project researchers, who were responsible for conducting oral history interviews with former members of paramilitary organizations in Northern Ireland. The Department of Justice continues to pursue subpoenas for materials from confidential interviews with former members of the Provisional IRA, acting on a request from the government of the United Kingdom (which almost certainly originated in the PSNI). Most recently, the DOJ had asked a judge to refuse to allow BC’s researchers to join the discussion before the court. This new brief continues the argument for that intervention, and is important for the claims it makes about the legal rights of individuals following requests made by foreign governments under the terms of mutual legal assistance treaties (MLATs).

Again, I’m no longer providing detailed background for what has become a very long series of posts, on the assumption that anyone who cares has been following the story for a while. But go back and take another look at the government brief that prompted this reply. The DOJ, I wrote, was arguing for a position that MLATs effectively create “legal proceedings with secret origins, undeclared purposes, and no right to challenge, limit, or appeal them.” A foreign government makes a request; the DOJ decides to honor it; the end.

The brief below makes detailed arguments about federal statutes and case law that I won’t claim to understand or to analyze. But the heart of the argument is that the DOJ has unreasonably invented a set of legal standards that shield it from scrutiny, and that cannot be found in the treaty that governs the matter: “The US-UK MLAT neither extinguishes the Intervenors’ rights under domestic law, nor permits the Government to circumvent the Federal Rules in its pursuit of a Subpoena.”

This argument continues to be important for many reasons, not the least of which is the DOJ’s outrageous claims about executive power that cannot be limited or reviewed.

Related, a quick note about another source for information: Letters Blogatory, a legal blog focused on international judicial assistance, has created a page just for updates on the Belfast Project subpoenas.

Today’s brief follows.

Dec 5 Intervenor Reply