Belfast Project: No lawyers, few historians (and no IRB)

Belfast Project: No lawyers, few historians (and no IRB)
Zachary M. Schrag
Institutional Review Blog
22 February 2014

Discussions of the ill-fated Belfast Project at Boston College often frame the issue as what can happen to an oral history project in the absence of IRB oversight. But a recent account of the project in the Chronicle of Higher Education, as well as subsequent discussion, suggests that the real problem was a lack of involvement by lawyers and historians.

[McMurtrie, Beth. “Secrets From Belfast.” The Chronicle of Higher Education, January 26, 2014.]

No lawyers

The introduction to a follow-up webcast on the Chronicle site exemplifies the framing of the controversy as one over IRBs:

How is oral history different from other forms of scholarship? What obligations do oral historians and their colleges have, for example, if a subject reveals sensitive information? Who is allowed to hear these recordings and when? And should oral-history projects be vetted by institutional review boards?

But the webcast might better have asked, should oral-history projects be vetted by lawyers?

Here’s what we learn from Beth McMurtrie’s story:

In 2001, Robert O’Neill, head of the John J. Burns Library at Boston College, told researchers Anthony McIntyre and Ed Moloney, “I am working on the wording of the contract to be signed by the interview[ee], and I’ll run this by [historian] Tom [Hachey] and university counsel.” But, the article explains, “Mr. O’Neill never did check with a lawyer about the wording.”

This may have been the step when the project went wrong. Indeed, the researchers see it that way. As researchers Ed Moloney, Anthony McIntyre, and Wilson McArthur put it in follow-up statement:

Following the disclosure in the current edition of the Chronicle of Higher Education that Boston College misled ourselves and the participants in the oral history project into believing that the donor contract or agreement for interviewees had been vetted by the college’s legal advisers when it had not been, we are consulting our attorneys about the legal implications.

Let’s be clear. It’s not that the researchers or the university failed to recognize the need for legal advice. Rather, the university promised legal review and then failed to follow through.

In the webcast on the story, both Mary Marshall Clark, director of Columbia University’s Center for Oral History Research, and Clifford M. Kuhn, executive director of the Oral History Association, stressed the importance of consulting lawyers, not ethicists, when making promises of confidentiality. As Clark put it, “IRB is not a legal board, it’s an ethical board.”

Ethics review occasionally offers legal advantage, as when the Quebec court considered it as a factor in quashing a subpoena. But recall that in that case, the University of Ottawa refused legal representation to the researchers, and that the University of Arizona turned over data over the objection of its IRB. I suggest, then, that the problem at Boston College was not the absence of IRB review, but of legal review, which is quite a different thing.

Few historians

The article also shows the relatively small role played by professional historians and historical methods in the project.

• Anthony McIntyre, described in the article as “an independent historian,” received his graduate training in political science. (McMurtrie’s article doesn’t mention this, but Wilson McArthur, who interviewed Loyalists, also has a degree in political science.)
• Thomas Hachey–the Boston College historian most involved in the project–states, “I don’t think any pretense was made by any of us at the time that this was going to be following the template for official oral history.”
• The project was mostly kept away from BC’s history department and its Irish-studies program. And when Kevin O’Neill, an associate professor of history, was eventually consulted, he “wrote a memorandum saying that he was impressed by [the interviews’] potential value to historians, but was very concerned that the interviewer didn’t appear to have much experience with oral-history methodology—asking leading questions, for example.”

Now, what O’Neill considers “leading questions” sound a lot like the two-sentence format used for decades by oral historians. At the risk of an ad hominem argument, I note that O’Neill is listed as a specialist on pre-famine Ireland. What training does he have in oral history methods?

Perhaps knowing that no one involved had much if any training in oral history, Clark used her time on the webcast to repeatedly disavow the project as an oral history project, calling it journalism instead.

I don’t know the exact basis for her distinction; it strikes me that a project aimed at developing an archive of interviews for future use is a lot more oral history than journalism. But this element of the story deserves more exploration.

What are the interests of third parties?

While McMurtrie’s article is a helpful addition to our understanding of the Belfast Project, it leaves unanswered what I consider a key question: what would have happened if all the contracts had been honored, and the researchers had followed all the protocols suggested by Clark? What if, that is, all narrators had reviewed their interviews, and those interviews had remained sealed until the narrators’ deaths?

The answer, it seems, is that the project would still have generated controversy, because the people most exposed by the interviews are not the narrators, but third parties they mentioned.

Here’s a key passage from the article:

Mr. Hughes gave a detailed account of the activities of the IRA’s Belfast Brigade, of which he was a leader, including its role in the murder of Jean McConville. In December 1972 gunmen abducted the mother of 10 from her apartment in front of her children. Ms. McConville was never seen alive again. Mr. Hughes, who monitored the slum known as Divis Flats, where the McConville family lived, said she had been revealed as an informer for the British Army, was ordered killed, and her body buried. That order, he said, had come from Gerry Adams, his commanding officer.

Hughes died in 2008, so the interviewers broke no agreement by releasing his interviews after his death. Nor would the right of review stressed by Clark have kept Hughes from identifying Adams (who denies ever belonging to the IRA) as an IRA commander.

In his insightful take on the project, James Allison King, a doctoral student in information sciences, notes that Moloney claims inspiration from an earlier project conducted by the Irish Bureau of Military History.

[King, James Allison. “‘Say Nothing’: Silenced Records and the Boston College Subpoenas.” Archives and Records (published online 31 January 2014): 1–15. doi:10.1080/23257962.2013.859573.]

From 1947 to 1957, the Bureau compiled 1773 statements covering the Irish independence movement from 1913 to 1921. Rather than seal each interview until the narrator’s death, the Bureau apparently sealed the entire project until 2003, by which point, one suspects, just about everyone mentioned in the interviews was dead. That some of the Belfast Project’s interviews were published much more rapidly reflects not any misunderstanding between Boston College and the interviewers, nor the result of an unexpected subpoena. Rather, it was, at least in part, the decision of the interviewers that only the narrator had an interest in what he or she disclosed. But I haven’t seen an explicit statement from Moloney or McIntyre to this effect.

Oral history, Clark argues, “is a field of ethics.” I think she’s right, and the field may need to say more about the Belfast Project than that it wasn’t oral history.

 

 

Anthony McIntyre: Against the Dying of the Light

Against the Dying of the Light
Anthony McIntyre
The Pensive Quill
11 February 2014

The inferences to be drawn from Beth McMurtrie’s lengthy article Secrets From Belfast in the Chronicle for Higher Education show little sign of fading into the distance where they can be conveniently forgotten about by those least enamoured to being reminded. Her substantial investigation has stirred a hornet’s nest which on top of leaving Boston College fuming like a bear with a sore head has helped illuminate a gulf between aspects of investigative journalism in the US and its non-investigative opposite in Ireland. Flying in the face of the type of evidence uncovered by Beth McMurtrie, a lecturer in journalism in Dublin’s Griffith College with a penchant for using a range of monikers has kept himself busy finding that the researchers were to blame – all on their own. Some years earlier the same lecturer found that the same researchers were at fault for believing that the British had penetrated the IRA through the agent Stakeknife. He also concluded that the British spy Freddie Scappaticci was not in fact a British spy.

Anthony McIntyre Response to Boston College Spokesman’s NPR Comments

Jack in Dunn’s Corner
Anthony McIntyre
The Pensive Quill
8 February 2014

Last week’s in-depth report in the Chronicle for Higher Education by Beth McMurtrie has finally nailed Boston College for its wholly irresponsible approach to the Belfast Project. Its criminal negligence, while concealed during the life of the project, has been exposed as present from the embryonic stages of the exercise.

Since the onset of the subpoenas, Boston College, rather than fully commit to the battle on behalf of its research, sought to shaft both its researchers and research participants, through lies, ‘obvious and dangerous lies‘.

Eagerly expressing the dishonest ethos of the College, BC spokesperson Jack Dunn has played a crooked hand from early on in the case, at all times trying to smear and marginalise the researchers in a corporate decision to protect the institution. That sleekit approach only works when you don’t get caught. Dunn lacked the requisite skill to evade the snare and has at last confirmed what critics of the college have charged all along: that BC was more interested in gutting the researchers rather than waging the political fight.

In Dunn’s own words:

Had our efforts gone to Congress in identifying supporters, to work with the State Department and the Department of Justice, we could have been more effective.

But our efforts were involved in legal matters and distancing ourselves from the reckless rhetoric of Ed Moloney and Anthony McIntyre.

Dunn, stung by the bad press the College took in The Chronicle, spoke to Brooke Gladstone of NPR’s On The Media. Never slow to leap before looking, Dunn confirmed he had been born with a silver foot in his mouth and engaged in what may ironically be described as reckless rhetoric of his own.

To some, like me, who have long charged that Dunn was a vicious smear artist, his contribution was music to our ears. I have always considered it important that anytime Dunn digs a hole for both himself and the College he should be given an ample supply of shovels. Having his inanities, inconsistencies, and mendacities on public record has helped damn the College’s self serving and increasingly false narrative.

During his interview, Dunn moved to smear me as a person who had a long criminal record. That I was an IRA political prisoner with the same record typology as Bobby Sands, Frank Hughes and the eight other hunger strikers who died in 1981 resisting the criminal label, seemed not to figure with Dunn. With no sense of irony whatsoever and a seemingly straight face, he had no problem citing another former IRA member (and therefore a criminal in Dunn’s eyes), Danny Morrison. Any passing consideration for Boston College’s own court assertions that the College adequately represented myself and Moloney went out the window in Dunn’s embrace of a blunt cudgel he could clumsily wield against me for his own nefarious end; if anything clearly demonstrates how unfairly and inadequately BC represented us, it is this unholy alliance between Bangers and Mush.

Dunn, in the same interview, also sought to cast aspersions on the quality of my research. With characteristic dishonesty, he falsely claimed that BC Professor Kevin O’Neill had in a 2002 memo accused my work of being very weak, and that O’Neill was stunned by the leading questions that I had asked, implying that the questions I had formulated were somehow a rhetorical strategy to ensnare Gerry Adams.

If indeed Kevin O’Neill had made such charges, Boston College stands indicted for allowing me to continue in the role as researcher for a further five years, and for publicly singing the praises of the research I had conducted a full eight years after O’Neill’s memo – which I had never been shown until this week. This is to say nothing of the implications for the affidavits sworn and filed on behalf of the Trustees of Boston College that describe the purpose of O’Neill’s review as “confirming for us what we believed to be the value of this unique collection”.

At no point did Kevin O’Neill in his 2002 memo state that my research was weak. What he did say was that ‘what is already collected forms the foundation of a significant historical archive.’

This impression, formed not long into the project, from a brief review of a couple of interview transcripts, was confirmed by Judge William Young. His assessment upon reading the complete Republican archive was,

“This was a bona fide academic exercise of considerable intellectual merit.

[These materials] are of interest – valid academic interests. They’re of interest to the historian, sociologist, the student of religion, the student of youth movements, academics who are interested in insurgency and counterinsurgency, in terrorism and counterterrorism. They’re of interest to those who study the history of religions.”

Bearing in mind Judge Young is not someone regarded as friendly or sympathetic to my position.

The leading questions referred to by Dunn – supposedly meant to cause problem for Gerry Adams – are as follows:

Q: In my view it was very very naïve …

Q: Is it true to say, as many writers and academics claim, that was one of the significant turning points ….[Falls Curfew]

Q: I think that what you are trying to do is argue…

Q: Even in the most functional terms, was it a sledgehammer to crack a nut?

Q: They seemed to be …incestuous….

Q: Most volunteers that stayed the course seemed to have that as an objective, I know I did…

Whatever view people might take of the type of questions, it is very clear that there is nothing in them that would lend weight to the malign interpretation attributed to them by Dunn.

If anything, I feel that I stand vindicated by the 2002 memo of Kevin O’Neill – and that the falsehoods of Jack Dunn lie vanquished in his corner.

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EMAIL: Embarrassed for Jack Dunn… Yet Again

Email sent by historian and journalist Chris Bray to Boston College administration and faculty

From: Chris Bray

Sent: Saturday, February 01, 2014 4:50 PM

To: jack.dunn@bc.edu ; thomas.hachey@bc.edu ; robert.oneill.1@bc.edu ; william.leahy@bc.edu ; kevin.oneill@bc.edu ; delaneyp@bc.edu ; ed.hayward@bc.edu ; sean.hennessey@bc.edu ; bridget.burke.2@bc.edu ; amy.braitsch@bc.edu ; david.horn.3@bc.edu ; adrienne.pruitt@bc.edu ; joseph.quinn@bc.edu ; thomas.chiles@bc.edu
Cc: Ed Moloney ; Anthony McIntyre

Subject: fascinating

Jack,

I’ve just had the extraordinary experience of listening to your interview on NPR’s “On the Media,” and I’m amazed again at your shamelessness.

You’ve discovered that Anthony McIntyre is “an individual from Northern Ireland with a long criminal record” and that “his work was very weak.”

Did you or any of your colleagues notice any of that during the period of years that Boston College contracted with him, paid him, and took his work into your archive?

Did you notice any of that during the years that you boasted about the project to faculty and staff in the BC Chronicle, and during the years when Thomas Hachey and Robert O’Neill wrote the introduction to Ed Moloney’s book and took a share of the royalties?

The project began in 2001; in 2014, a university suddenly discovers that, my goodness, one of the researchers we hired had a criminal record? Poor dear, did you clutch your pearls?

If NPR had interviewers who were sentient — I’m not holding my breath — the follow-up question would have been, “If all of that is true, why did you hire him and continue to work with him?” Lucky for you to have an exchange with a mediocre interviewer, the only kind who would ever believe anything you say.

I invite you, or anyone at BC, to answer this question: If you regard Anthony McIntyre as “an individual…with a long criminal record” whose work “was very weak,” why did Boston College hire him, pay him, and archive his work?

Do you not notice that if your claim is true, you’ve damned the organization and oversight of a project that your university sponsored? Why, gasp, this person is a convicted criminal who does shoddy work, says…the university that hired him.

Yet again, I’m embarrassed for you.

Chris Bray

Author’s accepted manuscript: ‘Say Nothing’

‘Say nothing’: silenced records and the Boston College subpoenas
Archives and Records: The Journal of the Archives and Records Association
James Allison King

This is an Author’s Accepted Manuscript of an article published in Archives and Records, Spring 2014 [copyright Taylor & Francis], available online at: http://www.tandfonline.com/doi/full/10.1080/23257962.2013.859573

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‘Say nothing’- silenced records and the Boston College subpoenas
Author’s accepted manuscript

ABSTRACT

How will subpoenas for Boston College’s sealed Irish Republican Army (IRA) oral histories affect future attempts to archive the Troubles and armed conflict in general? To answer this question, the author examines the long-term implications of subpoenaing Boston College’s Belfast Project, arguing that the subpoenas present a case study of the little-recognized preservation hazard of silenced or uncreated records. The author situates the case within the context of the two types of wartime preservation hazards: the destruction or obfuscation of extant record and the silencing of records that otherwise would have been created. In order to show the subpoenas’ grave implications on the archive’s mission to record the full story of the Troubles for future generations, the article places the Belfast Project within the context of other Northern Irish and international archival projects. Ultimately, the author intends to demonstrate the relevance of the case to archivists, arguing that the Boston College subpoenas pose a preservation risk as hazardous as any fire or explosion by threatening to silence records that otherwise would have been created and thereby creating irreparable holes in the historical record of the Troubles.

FIRST PAGE EXCERPT

‘Northern reticence, the tight gag of place
And times: yes, yes. Of the ‘wee six’ I sing
Where to be saved you only must save face
And whatever you say, you say nothing’
–Seamus Heaney, North

Talk could be deadly during the Troubles, especially in the Catholic neighborhood of Divis Flats, where Jean McConville and her children lived.

Of the 3,709 people killed during the three decades of sectarian violence, the tragic circumstances surrounding her execution as an alleged agent for British military intelligence continues to haunt a traumatized nation.

Although the Irish Republican Army (IRA) executed McConville in 1972, her case remains unresolved more than four decades later. Detailed, first-hand information concerning her murder only became available under the auspices of a relatively recent groundbreaking oral history endeavor called the Belfast Project. Brendan Hughes, a Provisional IRA leader at the time, spoke about the IRA disappearance of the widowed mother of ten for the first time in a Boston College-sponsored oral history project:

I knew she was being executed. I didn’t know she was going to be buried…or ‘disappeared’ as they call it now. I know one particular person on the Belfast Brigade at the time, Ivor [Bell], argued for [her] to be shot, yes, but to be left on the street. Because to take her away and bury her…would serve no purpose people wouldn’t know. So looking back on it now, what happened to her…was wrong.

Like all IRA and Loyalist men and women interviewed by the ‘Belfast Project,’ Hughes was assured by Boston College’s researchers that ‘no material could be used until and unless the interviewee consented or had died.’

The Belfast Project sealed oral histories until the contributor’s death because, in the words of historian and journalist Chris Bray, ‘frank discussion about armed civil conflict could get interviewees killed or arrested.’

The College honored the contract for Hughes, who died in 2008. But federal subpoenas for the complete oral histories of Hughes, Dolours Price, and any other IRA recordings with information concerning McConville’s murder instigated a lengthy court battle extending over two years, which only recently attained some level of resolution. Although all parties concerned assumedly seek resolution for the 2,000 some unsolved murders during the Troubles, efforts to prematurely unlock the archive might paradoxically deepen the secrets of the Troubles by chilling present and future projects to retrieve previously unheard voices.

While some academic and political communities were quick to speak out about the case’s far-reaching cultural and legal implications, archivists have been slow to acknowledge the potential repercussions of the Boston College subpoenas.

Christine George has proven the exception by raising awareness throughout the community in part through the publication of a critical article exploring the future legal and ethical implications of the court case.

Like George, I intend to argue that the fate of the Belfast Project directly affects the archival community. My approach differs from hers, however, by examining the case through a preservation lens. More specifically, I will analyze how the subpoenas — and the inevitable distrust and entrenchment they will engender — threaten to determine how present and future conflicts are, or are not, preserved.

CONFIDENTIAL: 2002 Burns Belfast Project Report

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CONFIDENTIAL

January 28, 2002

Dear Tom,

I did a quick review of the Burns Oral History project material on Jan.24, 2002.

Here are my observations:

1. The files contain very important information on the early days of the Troubles, the formation and development of the PIRA, and subsequent events up to the Hunger Strikes [it may contain more that I did not have time to see.] What is already collected forms the foundation of a significant historical archive.
2. The material condition of files, discs, and recordings seem very professional. However, I would have to listen to the audio to be sure of this.
3. There is a serious problem with the interviewing technique. The interviewer frequently leads his subjects not only into areas of discussion [which he should], but also into modes of analysis [which he should try to avoid], and occasionally even conclusions [which he must avoid!] Some examples:

• Q. “In my view it was very very naïve” [this is from interviewer!]
• Q “Is it true to say, as many writers and academics claim, that was one of the significant turning points….” [Falls Curfew]
• Q. “I think that what you are trying to do is argue…”
• Q. “Even in the most functional terms, was it a sledgehammer to crack a nut?”
• Q. They seemed to be …incestuous….
• A. ⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛ ⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛⬛
• Q. Most volunteers that stayed the course seemed to have that as an objective, I know I did…”
  
  Such leading of subjects would be thrown out in a court; they are equally damaging in the collection of oral history. They leave the future reader unsure whether he/she is looking at attitudes and linguistic formations of the subjects, or of the interviewer. As there is only one interviewer this provides the possibility of a large scale “corruption” of this “data”.

Conclusion:
There is much of value here, but before I could offer a professional opinion on the historical merit of the archive I would need to have answers to the following questions:

1. How are the subjects for the interviews chosen/excluded?
2. Does anyone involved in the project have experience/training in oral history collection? If not, why not?
3. The interviewer operates with a clear sense of “engagement” with the Republican movement. This may cause difficulties with some Republican voices [mainstream]; it clearly be quite inappropriate if there is an intention to expand this project to include Loyalists. Is this the intention?
4. What discussion has taken place to insure access to Republicans still active in the mainstream?

---

5. Protection of the interview materials.

Boston College has scrupulously observed the expectations of confidentiality given to those interviewed for the Belfast Project. Interview materials are stored at the Burns Library of Boston College, in a secure area, monitored by cameras, with access controlled by a combination of keyed lock and entry of a security code. Access is limited to select Burns staff, and the key must be signed out by staff. O’Neill Affidavit, ¶9. Only the few interviewers and academicians directly involved in the Project have been permitted to see the materials of those interviewees who have not died. O’Neill Affidavit, ¶10; Hachey Affidavit, ¶8-9. – MOTION OF THE TRUSTEES OF BOSTON COLLEGE TO QUASH SUBPOENA

• A sampling from the transcripts was made available in the 2001-2002 time period to two scholars of Irish history for their assessment of the historical value of these interviews and the quality of the interviewers’ work. – Affidavit of Robert K. O’Neill, June 2011
• Apart from the two interviewers, who saw only the transcripts of the individuals whom they themselves interviewed, the only other people who ever saw any of the material were Robert O’Neill, Ed Moloney, myself, and two academic specialists who were given some of the transcripts to review, but only with coded numbers (not names) attached to them, for the purpose of confirming for us what we believed to be the value of this unique collection. – Affidavit of Thomas E. Hachey, June, 2011

[NOTE: No reference or acknowledgement of any academic reviews, including Kevin O’Neill’s, are in Moloney or McIntyre’s affidavits]

---

“[Kevin O’Neill, an associate professor of history and former director of the Irish-studies program] had been asked by Mr. Hachey in early 2002 to review a couple of interview transcripts. He wrote a memorandum saying that he was impressed by their potential value to historians, but was very concerned that the interviewer didn’t appear to have much experience with oral-history methodology — asking leading questions, for example. He says he never heard back from Mr. Hachey.” – excerpt from ‘Secrets from Belfast’, Beth McMurtrie, Chronicle of Higher Education, January 2014

“The shame of it is that Anthony conducted the interviews with the IRA members and those who have heard the tapes said his work was very weak. Kevin O’Neill from Boston College said that he was stunned by how leading the questions were.” – Spokesman for Boston College Jack Dunn, interview with Brooke Gladstone, On The Media, broadcast 31 January 2014

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The first time Mr McIntyre was given a copy of the confidential memo written by Kevin O’Neill in 2002 was in February, 2014, after the comments made by Jack Dunn on NPR. Prior to that, neither he nor Mr Moloney had ever seen O’Neill’s assessment.

News of Interest: Researcher-participant confidentiality now a formal concept in Canadian law

Researcher-participant confidentiality now a formal concept in Canadian law
Miriam Shuchman
Canadian Medical Association Journal
February 3, 2014

The successful quashing of a search warrant for confidential research records has changed the landscape for protecting research participants in Canada, says a research confidentiality expert. John Lowman, a criminology professor at Simon Fraser University in Vancouver, British Columbia, says the court decision made researcher-participant confidentiality privilege a formal concept in Canadian law. However, the privilege won’t apply automatically to all confidential data; the ruling from Quebec Superior Court underscores that it must be argued on a case-by-case basis.

The pivotal case began in late May 2012, when an international manhunt was underway for Luka Magnotta, the Montréal porn actor suspected in the gruesome, videotaped murder of a Concordia University student in Montréal. With the web awash in photos of Magnotta, a man contacted police and told them that five years earlier, when he was a research assistant on a Social Sciences and Humanities Research Council-funded study of escorts, he had interviewed the alleged murderer. University of Ottawa criminologists Chris Bruckert and Colette Parent led that study, but when Montréal police asked Bruckert if Magnotta had been interviewed, she said she didn’t know.

“In fact, there was no way I could have known,” she told CMAJ. To protect the privacy of research subjects working in the sex trades, Bruckert and Parent used strict confidentiality protocols, including asking research participants to choose pseudonyms — Magnotta chose “Jimmy” — and having their research assistants sign the pseudonyms to consent forms, to guard against anyone identifying participants based on handwriting. After an interview is taped, transcribed and stripped of obviously identifying information, they send it to the participant to delete other details that could identify them. Once the participant returns the transcript, the team destroys the participant’s e-mail address, along with the connection between the name, e-mail address and pseudonym.

Undeterred, police told Bruckert they would take legal steps, including a search warrant, to obtain the interview.

Bruckert contacted the Canadian Association of University Teachers (CAUT) where Executive Director Jim Turk hired Peter Jacobsen, a lawyer known for defending journalists who are pressed to divulge their sources. Bruckert sent the digital audiotape of the interview and the 68-page transcript to Jacobsen’s Toronto office. Police seized the materials there, but took them in a sealed package, because of the legal move to quash the search warrant on the grounds that it would violate the researchers’ promise of confidentiality.

By then, Magnotta had been arrested in Europe. Later he wrote an affidavit stating that he gave an interview as “Jimmy” in a study at the University of Ottawa, that he was assured the interview would be private and confidential, and that he wanted it to remain so.

To Bruckert, the threat was clear: her research on sex workers would be impossible without confidentiality. But the issue had been tested only once before in Canada. In a 1994 Coroner’s Inquest in Vancouver, a masters’ student was subpoenaed to testify about confidential interviews with individuals who assisted suicides among people with HIV/AIDS, but after he refused to answer questions, the coroner ruled that the student’s communications with his research subjects were privileged so his refusal to answer questions was not contempt of court.

As Bruckert and Parent worked to prepare their case, CAUT negotiated with the university seeking its support of the researchers, but University of Ottawa President Allan Rock wrote Turk that the university would not pay legal costs “in the context of criminal proceedings.” Members of the university’s Research Ethics Boards also pressed for support for the professors, writing Rock that a board had approved the research on condition of the participants’ confidentiality, and months later, University administrators agreed to cover about half the CAUT’s expense, or $150 000.

The hearing took place in April 2013 before Justice Sophie Bourque of Quebec Superior Court. Her 37-page decision issued Jan. 21, follows a legal framework known as the Wigmore criteria, a four-step analysis to determine if a particular communication should be protected against disclosure. The case hinged on whether the public interest in obtaining the “Jimmy” interview for the investigation and suppression of crime outweighed the interest in what Justice Bourque described as “the free flow of accurate and pertinent information,” which could dry up without a reliable promise of confidentiality. She broke the seal and reviewed the interview transcript privately, but did not share its contents, writing that its relevancy to the charges against Magnotta or to a “not criminally responsible” defence was “minimal at most and marginal.” Bourque quashed the search warrant, concluding that “the Confidential Interview is covered by the researcher-participant confidentiality privilege and…it should not be disclosed.”

The Crown has until late February to appeal the decision but already, the case has prompted rethinking of researchers’ duties. New guidelines at the University of Toronto, for example, list principles to be followed in “research where external pressure to disclose is reasonably foreseeable” and the federal Panel on Research Ethics told CMAJ it would issue a new interpretation of the duty of confidentiality in the next two months.

‘Say nothing’: silenced records and the Boston College subpoenas

‘Say nothing’: silenced records and the Boston College subpoenas
Archives and Records: The Journal of the Archives and Records Association
James Allison King

DOI:10.1080/23257962.2013.859573 Published online: 31 Jan 2014

Abstract

How will subpoenas for Boston College’s sealed Irish Republican Army oral histories affect future attempts to archive the Troubles and armed conflict in general? To answer this question, the author examines the long-term implications of subpoenaing Boston College’s Belfast Project, arguing that the subpoenas present a case study of the little-recognized preservation hazard of silenced or uncreated records. The author situates the case within the context of the two types of wartime preservation hazards: the destruction or obfuscation of extant record and the silencing of records that otherwise would have been created. In order to show subpoenas’ grave implications on the archive’s mission to record the full story of the Troubles for future generations, the article places the Belfast Project within the context of other Northern Irish and international archival projects. Ultimately, the author intends to demonstrate the relevance of the case to archivists, arguing that the Boston College subpoenas pose a preservation risk as hazardous as any fire or explosion by threatening to silence records that otherwise would have been created and thereby creating irreparable holes in the historical record of the Troubles.

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Keywords:
Boston College subpoenas, Belfast Project, archives, silence, preservation, armed conflict, Troubles, Northern Ireland, oral history

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Ed Moloney and NPR

NPR Admits Mistakes In Boston College Programme
Ed Moloney
The Broken Elbow

This last weekend America’s National Public Radio (NPR) – the nearest the US has to the BBC or RTE – broadcast a follow up to the Chronicle of Higher Education’s devastating examination of Boston College’s handling of the Belfast Project, the oral history archive which sought to collect the life stories of former Republican and Loyalist paramilitaries, but which has been the subject, since May 2011, of subpoenas from the Police Service of Northern Ireland (PSNI) which allegedly is investigating the IRA’s disappearance of Jean McConville.

NPR’s ‘On The Media’ programme, which regularly deals with issues affecting the American media, used two interviews by Brooke Gladstone, one with Anthony McIntyre, the former IRA prisoner and Belfast Project researcher and the other with Jack Dunn, Boston College’s public relations person to ask what the future of Oral History was in the wake of the subpoenas.

As the more avid followers of the story will know, ourselves and Boston College have been at daggers drawn in both our radically differing accounts of what happened when the project was set up and over our stinging criticism of the college’s cowardly approach to resisting the subpoenas both inside and outside the courts in the US. Invariably this dispute has set ourselves and Dunn at each other’s throats.

That happened again on the NPR programme and in a colourful way, but this time Dunn showed a disregard for the truth that was staggering even by his tacky standards. So outraged was I by the lies he told about McIntyre and myself that I lodged a complaint with NPR’s ombudsman, sent a message to the interviewer, Brooke Gladstone and posted this comment on ‘On The Media’s website which summarised all but one of the gripes I had with her interview with Dunn.

That dealt with what Dunn called McIntyre’s ‘lengthy history of criminal activity’, i.e. his life sentence for the murder of a UVF member in South Belfast. Because of space limitations imposed by the website I was not able to make two points in answer. One was that the US courts have recognised that IRA violence is fundamentally political in nature and to call it criminal is legally inaccurate in this country. And as a friend pointed out, ‘On The Media’ would not dare call a Palestinian fighter a ‘criminal’.

The second point was that it was because of his IRA associations – not despite them – that McIntyre was hired in the first place. The project was constructed on the idea that former paramilitary activists would not speak frankly to academic oral historians but they might to people from their own community and background. That applied to both IRA and UVF interviewees. Boston College enthusiastically embraced that approach and Jack Dunn would have been very aware of it. For him now to use McIntyre’s background against him is despicable hypocrisy.

Anyway here is what I wrote on NPR’s website:

Today, Brooke Gladstone responded, admitting faults in the programme, and this what she had to say:

And here is my response:

Incidentally, for those interested in what Jack Dunn looks like, and for a sample of what he believes, have a look at this. I was pondering for some time what message his face sent and then it hit me: “I am a kiss up, kick down sort of guy”:

TRANSCRIPT: The Belfast Project and the Future of Oral History Projects, On the Media

The Belfast Project and the Future of Oral History Projects
Brooke Gladstone interviews Anthony McIntyre and Jack Dunn
On The Media
WNYC
National Public Radio
31 January 2014

Begun in 2000, the Belfast Project was an oral history project that aimed to document combatants’ stories in the clashes between the Irish Republican Army and the Ulster Volunteer Force in the 1970s through the 1990s. But the charged nature of what interviewees told the project has brought immense pressure on the project’s organizers to release records of the interviews, which they’d promised to keep secret. Brooke talks with Anthony McIntyre who recorded many of the interviews for the project.

THE BELFAST PROJECT

Brook Gladstone: It seems that oral histories are generally ignored unless they make history. The Belfast Project is an archive of taped recollections of members of the Provisional Irish Republican Army and the Irish Loyalist Army [sic] who warred against each other from the 70s into the 90s.

The bomb blew apart the Horse and Groom pub in Guildford killing five people and injuring 50 more. An hour later another pub 200 yards up the road was also bombed. Then a month later at Woolwich in South London another soldiers’ pub was bombed and two people were killed.

BG: They were promised that their stories would stay secret until after their deaths. That promise was broken this month aggravating a wound that has never healed despite 15 years of peace. Some thirty five hundred people were killed in Ireland’s so called time of troubles. The Belfast Project intended to preserve the IRA stories inside the Boston College Library. But when reports emerged about the substance of two of the interviews the British government used the Mutual Legal Assistance between the US and the UK to obtain them and much more. In particular the British authorities wanted access to interviews that touched on the unsolved murder of Jean McConville

News Report: “Jean McConville’s abduction, torture, murder and secret burial by the IRA nearly 40 years ago leaves many unanswered questions. The mother of ten’s body was dumped on a County Louth beach and despite extensive searches was only found in 2003 by a passing walker.”

Beth McMurtrie, whose magisterial piece about the Belfast Project ran recently in the Chronicle of Higher Education, called McConville’s case a uniquely tragic atrocity. The widowed mother of ten was dragged from her house in front of her then kids in 1972 and murdered as a suspected informer. Among the interviews archived in the Belfast project are some that implicate Gerry Adams, leader of the Sinn Fein party, often called the IRA’s political wing.

Anthony McIntyre whose credentials include a PhD in political science began recording the oral histories in the spring of 2001, for nearly six years collecting 26 interviews with IRA members, people who had every reason to trust him.

AM: I served a life sentence for IRA activity including the killing of a member of the Ulster Volunteer Force. And I have been involved … in the hunger strikes back in 1981 and 1980. And on the blanket protest along with Bobby Sands. I first went to prison when I was 16 and released when I was 18. I returned to prison when I was 18 and was released when I was 35. And I was known to these people to be trustworthy.

BG: What promises did you make to them?

AM: that these interviews would not be released until their death or with their consent prior to that. And that neither the Provisional IRA nor the British state would be allowed to access those interviews.

BG: One of your interviewees, Brendan Hughes, died and a book came out by your collaborator on the project, journalist Ed Moloney. In the book Brendan Hughes figured prominently. He told you that Gerry Adams was involved in the murder of Jean McConville, something that Adams has denied. Here is a little bit of Brendan Hughes’ tape.

“I never carried out a major operation without the OK or the order from Gerry. And for him to sit in his plush office in Westminster or Stormont or wherever, and deny it … I mean it is like Hitler denying that there was ever a Holocaust.”

AM: Well, during the course of the interview, Brendan revealed a lot of his life in the IRA. Gerry Adams was his operational commander in Belfast, and that Gerry Adams had ordered the killing of Jean McConville, had ordered the London bombings and had ordered a lot of IRA activity. Brendan Hughes and Gerry Adams were very close comrades in the IRA back in the day.

BG: Boston College having been confronted with this order to turn over the entire archive calls it a victory that it doesn’t have to turn the whole thing over, only eleven documents.

AM: What Boston College secured was a minimising of the defeat. That is what we secured. The state seemed to have a view that ‘we were dealing with pushover professors and we will get anything we want out of them.’ And they weren’t far wrong.

BG: Pushover professors?

AM: Yes.

BG: And they weren’t very far wrong you were saying?

AM: No, they weren’t very far wrong. There should never have been a discussion about whether we do this or we don’t. They should have been straight out of the traps and said ‘We will face this head on.’

BG: Hmm Hmm

AM: Rather Boston College were transmitting messages to the Justice Department and law enforcement that ‘we are willing to fold if you give us the right opportunity.’ But unfortunately for Boston College, myself, my wife, and Ed Moloney decided to stand and fight. And because we fought Boston College then were embarrassed.

BG: Okay. Let’s, let’s consider the arguments on both sides of this issue. The British Secretary of State for Northern Ireland said in a special on CNN that nobody is above the law:

“We have been quite clear as a government there can be no concept of an amnesty. So, we have to support the police in bringing those who committed crimes to justice.”

AM: That’s fine. What he actually means is that nobody outside law enforcement is above the law. Because the British authorities have withheld vital information from the relatives of the murdered human rights lawyer, Pat Finucane, murdered by agents of the British state. The British state have withheld vital documents from the victims and families of the people killed in the Dublin Monaghan bombings in May 1974.

BG: I hear what you are saying. That they are, they are having a double standard.

AM: Well, absolutely. But I mean people in Boston and America should know about British double standards from the War of Independence out there …

BG: (laughs)

AM: So I don’t think you should be too surprised about British double standards.

BG: Okay then. The argument for the lawyer for the McConville family says that the wounds of the troubles can never heal while injustice like the murder of Mrs McConville is allowed to fester.

AM: I have a great deal of sympathy for the lawyer’s sentiment and I have enormous sympathy for the family of Jean McConville and the family of any person killed. But it is not the task of a researcher to become a gatherer of evidence for law enforcement. Even for clergy men – now one can argue that researchers produce knowledge and clergymen produce nonsense …

BG: (laughs)

AM: …, yet clergymen are allowed to maintain confidentiality and researchers aren’t. It seems to me to be a bizarre situation. There are certain obstacles that have to stand in the way of the state for the betterment of society. And I think that academics and journalists need to be protected from this sort of encroachment and incursion. If the only view of society that we have, the only view of the past is that of law enforcement we will learn very little from it.

BG: But how can it really effect policy and improve somebody’s life if you don’t get to look into it until thirty years hence and the people who committed the wrongdoing on both sides of the struggle are never brought to account.

AM: Well, I mean we have a situation in the North where the British Prime Minister, Tony Blair, said that the Criminal Justice system had to be turned on its head in order to bring about the Good Friday Agreement. Basically politics in the North of Ireland did trump justice. And it has also trumped truth.

Truth in the North of Ireland is used for recrimination not for reconciliation. They want to use it to – yesterday’s issues to fight the political battles of today.

This information wasn’t gathered by ourselves as researchers to hand over to relatives. Because people are simply going to clam up. All the knowledge that could have been brought to the families at some point under a variety of processes about truth recovery and the past has now been sabotaged by this issue.

It is very sad that the McConvilles cannot get the truth. I think that the McConville family are behaving nobly and honourably. It’s just that I represent a different constituency of knowledge and ‘ne’er the twain shall meet.’

BG: Ed Moloney, your colleague in the Belfast Project, has said that the release of the tapes could endanger your life. Do you really think that’s a realistic concern?

AM: I am going to see people coming for me even when they are not coming for me

BG: (laughs)

AM: because I am in the eye of the storm and I am sensitive. Former colleagues can be very vitriolic and bitter. Some of them with great audacity and chutzpah …

BG: (laughs) …

AM: who many of us have for a long time suspected of being informers are now calling the participants of the Boston College project informers. It’s a load of old hooey. But we must be very cautious. But if you are asking me do I live under the bed fearful that I am going to be attacked imminently? No I don’t.

BG: Anthony McIntyre is an independent scholar.

THE FUTURE OF ORAL HISTORY PROJECTS

Brooke speaks with Jack Dunn, the Director of the Boston College News and Public Affairs office about what Boston College has done to protect the tapes from the Belfast Project and the future of academic oral history projects.

Jack Dunn is the director of the news and public affairs office at Boston College. He says Boston College did everything in its power to protect the interviews.

JD: We hired the best lawyer available to fight the subpoenas and we won a significant court case that reduced the number of recorded materials from 85 to 11 interviews that were ultimately required to go over to the Police Services of Northern Ireland.

BG: McIntyre says that rather than lobbying politicians to protect the manuscripts the College instead set about undermining him and Moloney. Now you claim, I think, that the comments by McIntyre and Moloney hurt your efforts to protect …

JD: Oh they did.

BG: … the manuscript.

JD: What happened is the first subpoena occurred shortly after Ed Moloney published his book Voices from the Grave and after his video of the same name was released in Ireland. There is no doubt in our mind that the children of Jean McConville – who are victims themselves in this – they heard that there was a university that had in its archives recordings of conversations with IRA members that could shed light on their mother’s murder. So they apparently sought the help of the Police Services of Northern Ireland to issue a subpoena to the United States. And then to our astonishment Ed Moloney said in interviews in American newspapers that Boston College should burn the tapes and that sort of rhetoric that we might somehow burn materials which is something no university would ever consider, no doubt prompted the second subpoena.

BG: McIntyre says that the loss to history of this whole episode is very grave: it irreparably harms the possibility that people will really know what happened during the Troubles. And Boston College should have had the courage to stand up and engage in an act of civil disobedience.

JD: It is just a clash of cultures between an American university that is obviously going to be respondent to a US court subpoena and an individual from Northern Ireland with a long, criminal record who just seems to have a utter disregard for the legal process and a suspicion of any authority.

BG: What about the issue of the loss to history?

JD: The shame of it is that Anthony conducted the interviews with the IRA members and those who have heard the tapes said his work was very weak. Kevin O’Neill from Boston College said that he was stunned by how leading the questions were.

BG: You feel he conducted shoddy interviews?

JD: A lot of critics such as Danny Morrison, a former IRA member himself, have been critical of Anthony McIntyre suggesting that he interviewed only people who held the same viewpoint that he did, people who would be critical of Gerry Adams.

BG: McIntyre has pushed back and said that the efforts by the Irish police to get the tape is part of a campaign against Gerry Adams. So everyone is charging this is a campaign against Gerry Adams. But perhaps not admissible as evidence. Right?

JD: Probably not. I think Mr McIntyre and I would agree on that, that the information would probably not have value in a court of law. As we all have pointed out one of the great ironies is that Boston College in this very Burns Library holds the recordings of the conversations that led to the various paramilitary groups laying down their arms. And the condition is they will not be available to anyone for thirty years. The Police Services of Northern Ireland have gone after the tapes of the IRA members but never requested the tapes of UVF members.

BG: Has Boston College changed its procedures for gathering oral histories?

JD: I think everyone in the world will change the way they undertake oral histories. When this project began in 200o everyone followed the Colombia University model which said oral histories really wouldn’t be subject to Institutional Review Board. I think that has changed. There would certainly be a heightened scrutiny today. All of the participants entered into this agreement with good intentions. Some good came of it. Clearly mistakes were made on all four of the parties involved. And the reality is that the promise of the Belfast project has been lessened. The political reality clearly got in the way and now I think we have all learned a need for heightened caution as anyone embarks on such a project.

BG: Jack, thank you very much.

JD: Thank you for having me.

BG: Jack Dunn directs the News and Public Affairs office at Boston College.