I wonder what’s under: Chris Bray reviews Palys & Lowman ‘Lessons From the Boston College Subpoenas’

I wonder what’s under: Chris Bray reviews Palys & Lowman ‘Lessons From the Boston College Subpoenas’
Chris Bray
21 November 2012

In a new article in the peer-reviewed Journal of Academic Ethics, longtime researchers John Lowman and Ted Palys discuss “Lessons from the Boston College Subpoenas.” Palys and Lowman, who teach in the School of Criminology at Simon Fraser University, couldn’t be more qualified to address the questions that follow the BC subpoenas. Both have a long record of sensitive research on people who are alive and can be targeted by governments, and together they have written extensively on the topic of confidentiality and human subject research.

Their new article on Boston College reflects the knowledge and care that come from long experience. Palys and Lowman identify in the BC conflict “the two approaches that have developed over the past 40 years to the threat of court-ordered disclosure of confidential research information.”

On the one hand, an an “ethics-first approach” requires that researchers protect their research subjects under all circumstances and at whatever personal cost. This approach strongly implies a willingness to defy governments and their efforts to turn academic research to state purposes; the ethics-first approach to a subpoena is to refuse disclosure and fight back, even to the point of being jailed. The sociologist Rik Scarce embodies this approach. So do Belfast Project researchers Ed Moloney and Anthony McIntyre, who have waged — and are waging — a determined legal battle against the BC subpoenas for more than a year and a half.

On the other hand, a “Law of the Land approach…holds that academic institutions and researchers must always obey the law, including a court order to violate research confidentiality.” In the matter of the BC subpoenas, Palys and Lowman write, Boston College itself has come to exemplify this approach. The university has gestured at legal resistance, but signalled its intentions with the declaration of its media spokesman that they had “fought the fight and the fight was lost.” If you go to court and the judge says to hand over confidential research material, then that’s what you do.

The posture of fake helplessness in that choice is clear enough, and Palys and Lowman show through careful discussion that BC has invented some of the ropes that bind its hands. The university first tried to keep the subpoenas a secret, then fought a polite and unmistakably limited courtroom battle, even going as far as to hand a federal judge a much broader range of materials than legally required so that he could perform an in camera review and determine for himself which were germane to the subpoenas.

Meanwhile, researchers Moloney and McIntyre fought not just a legal battle but a political battle, enlisting the assistance of Irish-American groups to lobby the State Department and members of Congress for their intervention against the subpoenas.

Those political efforts have failed, so far, to convince the grotesquely obtuse bureaucrats at the Justice Department to withdraw the subpoenas. But think what a political effort might have accomplished if Boston College had led it, calling other universities to its defense (and to the general defense of research confidentiality). The professional associations — the American Historical Association, the Association of American University Professors, and so on — have stayed firmly on the sidelines, with academia as a whole choosing to look on as passive spectators to someone else’s fight. That professional quiescence is the product of institutional quiescence: American academics are staying out because the American academics who could have rallied a political effort chose instead to preclude a political effort.

“In view of the record,” Lowman and Palys conclude, “Boston College has provided an example that will be cited for years to come of how not to protect research participants to the extent American law allows. Instead, it has allowed its Law of the Land doctrine to devolve into a form of caveat emptor.” A research university has shoveled the problem of research confidentiality onto the laps of its research subjects, effectively saying that hey, listen, you should’ve considered the possibility that we’d give you up to the police. “As is so often the case with advocates of Law of the Land limitations to research confidentiality, Boston College’s perspective reflects the attitude that law is merely constraining, something to be reacted to rather than something that is enabling, dynamic, and that academics can influence.”

Laying down, a university depicts itself as a helpless victim of outside forces. Lowman and Palys quite reasonably conclude that BC’s posture with regard to the subpoenas is an example of “moral bankruptcy.”

There’s much more to this new article than I’ve covered here, and I encourage you to read the whole careful and detailed thing. In a particularly enjoyable moment, the authors catch BC spokesman Jack Dunn in a characteristically sloppy and foolish lie about the history of the university’s institutional review protocols.

Beyond the limited and practical boundaries of an article about the dimensions of a conflict over confidentiality and its lessons for researchers, what we need next is a longer and more embarrassing discussion about the current state of institutional courage and principle in academia. We know that Boston College has capitulated to an absurd set of government demands, treating a political fishing expedition as a murder investigation that cannot responsibly be opposed. We know that American academics have, on the whole, stayed out of the conflict, declining to add their voices to a political effort against a politicized government action.

What we don’t know, or at least haven’t made public and explicit, is how we came to live inside the borders of this Vichy academy. Like Marshal Pétain, Father William P. Leahy and his subordinates have gone farther than the moment requires. They didn’t just surrender subpoenaed materials; instead, they rushed to court with every Irish Republican interview in their possession, dumping the whole pile on a government official with an invitation to read it all and decide what he thought should go to the police. Under fire, Boston College chose to stay quiet and go along, rather than to start a fight and summon a broader resistance.

And what American academics have objected, or have intervened to insist on a political fight?

The Boston College debacle does give us a clear and disturbing picture of the state of academic research confidentiality. It also gives us an ugly picture of academia as a whole.

How and why have we come to this? Where is our courage? What is it that we do, and how much are we willing to do in the defense of our professional purpose?

Moloney & McIntyre: Petition for a Writ of Certiorari in the Supreme Court of the United States

No. 12A310
In the Supreme Court of the United States
ERIC H. HOLDER, Attorney General;
JACK W. PIROZZOLO, Commissioner,

Defending Research Confidentiality “To the Extent the Law Allows:” Lessons From the Boston College Subpoenas

Defending Research Confidentiality “To the Extent the Law Allows:” Lessons From the Boston College Subpoenas
Ted Palys, John Lowman
Journal of Academic Ethics
November 2012


Although in the US there have been dozens of subpoenas seeking information gathered by academic researchers under a pledge of confidentiality, few cases have garnered as much attention as the two sets of subpoenas issued to Boston College seeking interviews conducted with IRA operatives who participated in The Belfast Project, an oral history of The Troubles in Northern Ireland. For the researchers and participants, confidentiality was understood to be unlimited, while Boston College has asserted that it pledged confidentiality only “to the extent American law allows.” This a priori limitation to confidentiality is invoked by many researchers and universities in the United States, Canada and Great Britain, but there has been little discussion of what the phrase means and what ethical obligations accompany it. An examination of the researchers’ and Boston College’s behaviour in relation to the subpoenas provides the basis for that discussion. We conclude that Boston College has provided an example that will be cited for years to come of how not to protect research participants to the extent American law allows.

Within this Article:

Origins of the Belfast Project
Due Diligence, Institutional Conflict of Interest and Ethics Review
Engaging Legal Protections
Avoiding a Legal Achilles Heel
Walking One’s Talk
Opening Pandora’s Box
The First Set of Subpoenas
The Second Set of Subpoenas
The District Court’s Decision
Plan B
Discussion and Conclusions
Other actions

Contact for comment: T. Palys palys@sfu.ca and J. Lowman lowman@sfu.ca
School of Criminology at Simon Fraser University, Burnaby, BC, Canada V5A1S6

Access full article available at SpringerLink.com

Of Interest: President Michael D Higgins and Professor John A Murphy on History

These quotes from President Higgins and Professor Murphy are of interest to those following the Boston College subpoena case, in the context of the historical value of the Belfast Project.

The first quote comes from Professor Murphy, as described in the Irish Times:

“Prof Murphy was speaking at a conference on the Irish Home Rule Crisis 1912-14, hosted by the School of History at UCC, and he took issue with comments made earlier by the British ambassador, Dominick Chilcott, when he officially opened the conference.

Mr Chilcott called for the commemoration of the past in as inclusive a way as possible, as the best means of hindering those seeking to damage relations between Britian and Ireland, and he warned against allowing them to “wind back the clock”.

Mr Chilcott argued that one of the best ways of preventing this was for governments and historians to come together “in a spirit of transparency and truth seeking to commemorate the past. We should make this as inclusive an endeavour as we can.”

However, Prof Murphy sounded a note of caution about such an approach, saying Mr Chilcott had made it clear when using words such as “inclusiveness” and “reconciliation” that he was referring not just to governmental co-operation over the next decade but also to historians.

“I want to make it clear that the business of historians is history – it is research and teaching – it is not reconciliation and he [Mr Chilcott] seemed to think that the processes attached to historical research could themselves lead to happy conclusions in terms of reconciliation,” said Prof Murphy.

“In fact, it is quite possible that the more we know about the past, the less helpful it could be to the present – there’s no a priori evidence that the study of history is necessarily a good thing in terms of reconciling past differences between Irishmen.

“There’s a flawed logic there and I hope that, as historians, we all recognise that distinction – to understand all is not necessarily to forgive all in a historical context,” said Prof Murphy in an address entitled “Governments, historians and commemorations”.”

– Historian warns about 1916 events, The Irish Times – Monday, October 22, 2012

In an interview with President Higgins by Patsy McGarry, also in the Irish Times, this issue is addressed:

McGarry: You may have seen recently the challenge by Prof John A Murphy to those who would use history for political ends in the context of these centenaries?

Higgins: I totally agree with John A Murphy. John A Murphy has it right. We are not there to put a gloss, what I call a false amnesia. If people contest versions of history, you offer your versions and you’re judged by your peers. And then in turn if it becomes a principle you live with, you construct at most an amnesty and you say we agree to differ and, who knows, in times our narratives revisited from one side or the other can be amended and we move on to a new position. But the one thing you don’t do, you don’t falsify. That wouldn’t work and it wouldn’t be a contribution at all.

I know a lot about this. Remember my father and my two uncles were in the War of Independence. My father was on the republican side and spent 1923 in Newbridge prison on the Curragh and my uncle on the Free State side in Renmore Barracks. They never talked about it. But I think if we are to talk things through,…we are talking about a parity of revisionism where, if you like, the revisionism is not just a case of such a self-examination by one side as will make them amenable to the other. It is about both sides facing the task of a self-interrogation of history. And that’s the way it will be.

– Edited transcript of interview with President Michael D Higgins, The Irish Times – Saturday, November 3, 2012