BC Files Appellate Brief in Belfast Project Case

BC Files Appellate Brief in Belfast Project Case
Chris Bray
THURSDAY, MAY 3, 2012

Here’s the brief Boston College filed today in its appeal of a portion of the Belfast Project subpoenas. I have limited time to write about this, because a dissertation is calling my name, but it seems to me there are some extremely strong arguments here. Unfortunately, those strong arguments appear alongside some tendentious and untenable representations of fact.

See especially the extraordinary footnote on pg. 7, which suggests that Dolours Price waived the confidentiality of her interview materials by speaking to a reporter about the murder of Jean McConville and about the fact that she had done interviews with academic researchers. Price’s public statements, the brief argues, “indicated that she was not seeking to protect the confidentiality of her Belfast Project interviews.” Boston College is claiming that human subjects can waive research confidentiality indirectly and informally, not just by directly and explicitly notifying researchers and archivists that they no longer wish to have research materials protected from disclosure. That’s a hell of a claim, and you can expect to see it attacked by other academic researchers.

Bc Brief May 3 2012


COMMENTS:
Ed Moloney
May 3, 2012 05:06 PM

Boston College’s lawyer says that Dolours Price made “public statements” admitting that she had given interviews to Boston College and that this indicated that she was no longer prepared to protect the confidentiality of her interviews.

My question is a simple one: exactly which statements are these? As far as I know Dolours Price has made no public statement about her involvement with BC and has never been quoted saying that to anyone anywhere, to journalist, lawyer, newspaper or whoever.

The only reference to her having a connection to Boston College came in a Belfast Sunday tabloid article that appeared in February 2010. The article, in the Sunday Life, had this to say:

“Price, who has made taped confessions of her role in the abductions to academics at Boston University (sic), will relay this information to ICLVR (Independent Commission for the Location of Victims’ Remains) investigators later this week.”

That is all there is. A bald statement (which manages to name the wrong university) based on what? Where are Dolours Price’s quotes? Where is the evidence for this claim? Where does this information come from? The reporter, Ciaran Barnes, does not say even though he claims to have listened to tapes stored in the vaults at Boston College. It seems to me quite extraordinary that in a legal case as important as this that claims are being made about what Dolours Price said with absolutely no evidence to back them up.

BC’s lawyer goes on to say: “(Dolours Price) provided much of the information about her role in the IRA and the disappearances of individuals, including Jean McConville, in public interviews”.

Excuse me, but exactly which public interviews were these? If the reader wishes to check here (see: https://bostoncollegesubpoena.wordpress.com/supporting-documents/sunday-life/) or here: (https://bostoncollegesubpoena.wordpress.com/supporting-documents/irish-news/), not one IRA action allegedly ascribed to Dolours Price is backed up by as much as a single quote.

The two articles allege that Dolours Price made admissions about Jean McConville’s disappearance and cite taped interviews she made as the source. So, where are the quotes from these taped interviews, supposedly made by her in conversations with Anthony McIntyre? If she told McIntyre these things then why not quote her? A simple question to ask, a simple demand to make and most journalists would regard their work as unworthy of publication if it wasn’t backed up by such quotes or equivalent convincing evidence. But the single defining and damning feature of the newspaper articles upon which this whole subpoena saga has been based (and which in turn Boston College’s lawyer bases his and the college’s desertion of Dolours Price) is that there is not a single quote anywhere to back anything up, not a shred of evidence that she said anything to McIntyre about Jean McConville or anyone else “disappeared” by the IRA in the early 1970’s.

If the New York Times or the Boston Globe were presented with such stories their editors would correctly reject them as being a series of unsubstantiated assertions and they would be spiked. Yet here we have a protracted and expensive legal process which could have devastating consequences for many of those involved which is based upon newspaper articles that carry no quotes nor any evidence of any meaningful sort to back up what they publish. If it wasn’t so serious it would be laughable!

Reply
Chris Bray
May 3, 2012 05:18 PM
Ed, a very important comment, and much appreciated. I’ll invite BC’s press office and lawyers to respond, however unlikely that is.

Going further, say for the sake of argument that all of your conditions were met: Dolours Price made specific comments in public about the McConville murder and the BC tapes, and those statements were precisely described and documented. Would that constitute a waiver of confidentiality? The answer is still no. The promise a researcher or an archivist makes to a research subject to hold interview material confidential requires a direct, explicit waiver. This idea of an implicit and indirect waiver is ridiculous under any circumstances. These claims will be remembered.

Guessing Games

Guessing Games
Chris Bray
TUESDAY, MAY 1, 2012

On Thursday, Boston College owes the First Circuit a brief that will lay out the basis for their appeal of the district court’s order to turn over Belfast Project interview materials to the U.S. Attorney’s Office in Boston. Because of some bad timing, the lawyers working on that brief are stuck with an unfortunate guessing game: The same court has already heard argument in another appeal regarding many of the same subpoenaed materials, but the court has not announced its decision in that case.

Remember that in its April hearing, the court brushed aside the government’s efforts to limit the issues before the court, insisting that Assistant U.S. Attorney Barbara Healy Smith address a set of constitutional challenges raised against the subpoenas by the lawyers for Ed Moloney and Anthony McIntyre, BC’s Belfast Project researchers. Asked if the First Amendment protects the confidentiality of academic research, Smith responded that there “is not a recognized privilege that would protect someone from giving evidence absent a strong countervailing interest — constitutional, common-law, or statutory privilege.”

That’s the heart of the position that BC will need to attack if it wishes to kill any part of these subpoenas, and the university’s lawyers have to frame their argument without knowing what the court thinks of a set of issues it has probably already considered.

It’s possible that the court’s decision in the appeal by Moloney and McIntyre wouldn’t help BC figure out the landscape anyway, since one possibility is that the court simply concludes that the researchers don’t have standing and so have no place in court to begin with. But the point is that BC doesn’t know, and has to write and present an argument without knowing.

In other news, the court has not responded to an unusual exchange of letters between the U.S. Attorney’s Office and the lawyers for Moloney and McIntyre. The government opened the exchange with a letter insisting that, contrary to claims made before the court, the researchers are in no danger at all from the disclosure of confidential interview material with the IRA over the murder of an informer. Eamonn Dornan, the principal lawyer for Moloney and McIntyre, had argued that the threat to the safety of the researchers and their families could be proven by the State Department’s efforts to ensure the security of McIntyre’s wife and children, who are U.S. citizens.

In response, Smith offered to prove that the State Department doesn’t believe the subpoenas present any threat to McIntyre’s family, and State and Justice are on the same page regarding the subpoenas. That claim is absolute nonsense, and will be easily disproved if a court opens the door to evidence, but the door is still closed.

Finally, a personal note. I owe the final draft of a dissertation in exactly two months, and will be grimly lashed to the thing day and night until then. Posting here will be light, though I’ll still note major developments regarding the Boston College subpoenas.

House of Commons Written Answers 30 April 2012: Boston College

Dr Alasdair McDonnell: To ask the Secretary of State for Foreign and Commonwealth Affairs whether he has discussed the Government’s request to subpoena recordings from the Boston College oral history project with the US Secretary of State. [106233]

Alistair Burt: The Secretary of State for Foreign and Commonwealth Affairs, my right hon. Friend the Member for Richmond (Yorks) (Mr Hague), has not discussed the issue of the Boston College oral history project with the US Secretary of State. In line with the Government’s bilateral treaty with the United States on mutual legal assistance, all requests for assistance are transmitted via the Home Office.


HOME DEPARTMENT
Boston College

Dr Alasdair McDonnell: To ask the Secretary of State for the Home Department pursuant to the answer of 16 April 2012 from the Secretary of State for Northern Ireland, Official Report, column 49W, on Boston College, what discussions she had with (a) the Police Service of Northern Ireland, (b) the Secretary of State for Northern Ireland, (c) the Northern Ireland Justice Minister, (d) the Prime Minister and (e) the Attorney General (i) prior to and (ii) after the Government’s request to subpoena recordings from the Boston College oral history project. [106235]

Nick Herbert: Home Office Ministers have regular meetings with ministerial colleagues and others as part of the process of policy development and delivery. As was the case with previous Administrations, it is not the Government’s practice to provide details of such meetings.


Previously:

House of Commons Written Answers 16 April 2012: Northern Ireland: Boston College
NORTHERN IRELAND
Boston College

Dr Alasdair McDonnell: To ask the Secretary of State for Northern Ireland whether he has held discussions with the US Secretary of State regarding the Government’s request to subpoena recordings from the Boston college oral history project. [102545]

Mr Paterson: I have not held discussions with the US Secretary of State regarding the request to subpoena recordings from the Boston college oral history project.


Dr Alasdair McDonnell: To ask the Secretary of State for Northern Ireland what discussions he has had with the (a) Police Service of Northern Ireland and (b) the Northern Ireland Department of Justice on the Government’s request to subpoena recordings from the Boston college oral history project (i) prior to and (ii) subsequent to that request being made. [102546]

Mr Paterson: I have not had discussions with either the Police Service of Northern Ireland or the Northern Ireland Department of Justice on the request to subpoena recordings from the Boston college oral history project. My Department is not routinely informed of such requests for mutual legal assistance. In line with the Government’s bilateral treaty with the United States on mutual legal assistance, all requests for assistance are transmitted via the Home Office.


Dr Alasdair McDonnell, MP for South Belfast, is the leader of the SDLP.

See previously:

Secretary of State for Northern Ireland Owen Paterson discusses Boston College Case
(March 24, 2012 interview transcript and October 29 2011 interview transcript)

Irish Americans Meet Paterson in NY
(November 9, 2011)