Urgent Murder Investigation (cont.)

Urgent Murder Investigation (cont.)
Chris Bray
23 June 2014

On May 22, BBC News reported that detectives in the Police Service of Northern Ireland had decided to pursue new and very broad subpoenas of the Belfast Project archives at Boston College. The BBC reported that news in the present tense, writing that the PSNI “is seeking” all of that archival material.

Today is June 23, and more than a month has passed. Neither the Department of Justice nor Boston College will answer questions from me, anymore, and the PSNI never did in the first place. It’s possible that the PSNI is actively pursuing subpoenas, and it’s possible that the DOJ is actively preparing those subpoenas. But I searched Pacer, today — that’s the case management system for the federal courts, where case documentation can be accessed and downloaded — and I can find no sign that new subpoenas have been prepared or served.

Time will tell, but I wondered last month if the PSNI was wagging its dick at critics, in a fit of pique, with a piece of public theater that was designed to produce fear and worry rather than real investigative gains. How often do you see police departments announcing in the newspaper who they’re going to raid next week?

In any event, the other shoe does not appear to have dropped, or at least not yet. Let us hope that some politicians and criminal justice bureaucrats have come to their senses.

FOI Request: Belfast Project Documents (DOJ-OIA)

FOI Request: Belfast Project Documents (DOJ-OIA)
Dustin Slaughter
18 June 2014

Status: Awaiting Acknowledgement

From Dustin Slaughter to Department of Justice, Criminal Division on June 18, 2014:

To Whom It May Concern:

This is a request for expedited processing and fee waiver status under the Freedom of Information Act. I hereby request the following records:

Any and all documents possessed by the Department of Justice’s Office of International Affairs pertaining to the Belfast Project.

All processing notes produced as a result of this request should also be included.

The Belfast Project, started in 2001 and concluded in 2006, is a collection of oral histories currently kept at Boston College, and created by journalists Ed Maloney and Dr. Anthony McIntyre, for the purpose of documenting and preserving an historical account of the period in Northern Ireland known as “The Troubles”. This request seeks all responsive documents starting from 2011, when the Department of Justice, through the US/UK Mutual Legal Assistance Treaty (US/UK MLAT) on behalf of the Police Service of Northern Ireland (PSNI), subpoenaed Boston College for interviews conducted as part of this oral history project.

This request includes but is not limited to: any and all emails, memorandums, briefs and reports, and audio/visual presentations, as exchanged with the UK Home Office and/or Police Service of Northern Ireland under the US/UK Mutual Legal Assistance Treaty.

This request does not exclude any other records which, though not specifically requested, would have a reasonable relationship to the subject matter of this request. I also expect to be provided with all segregable portions of otherwise exempt material.

The time frame for this request includes all responsive documents from 1 January 2011 up to and including the date this request is officially processed.

My request for expedited processing should be granted without delay, as the Belfast Project is a matter of continuing press coverage, and has generated much interest from the general public as well as academic circles. Indeed, a simple Google search for “Belfast Project” yields over 31,000 results which include major international and national media outlets ranging from The Guardian, The Irish Times, The New York Times, The Boston Globe, in addition to a multitude of academic journals, and more.

I also believe my request for a fee waiver should be granted, because this request is in the public interest. As a member of the news media, I will use information gleaned from responsive records released to MuckRock.com to produce work that will be made available to the general public free of charge and not for commercial usage.

Please reference these clippings as evidence of my news media status:


Additionally, your office should grant my fee waiver request because of MuckRock News’ mission statement as evidenced on its ‘About’ page (https://www.muckrock.com/about/):

MuckRock News has been recognized by “the Sunlight Foundation, The Freedom of the Press Foundation, and hundreds of local and national news outlets for its groundbreaking work in areas such as government spending, surveillance, and public safety.

In addition, MuckRock works with journalists to help conceive, pursue, and publish original stories on issues that matter with exclusive primary materials obtained via public records law.”

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.


Dustin Slaughter


THE Letters: Belfast Project aftermath

Belfast Project aftermath
Times Higher Education
19 JUNE 2014

In the lengthy piece on the Boston College oral history archives (“Oral history: where next after the Belfast Project?”, Features, 5 June), you say that “an investigation by the Society of American Archivists has found that the researchers made promises of confidentiality that went further than university lawyers had advised. However, [Ed] Moloney disputes this and says that the fault lay with the institution because it was Boston College that prepared the donor contracts for interviewees to sign.”

The story has moved on significantly since then and new facts that have come to light both challenge this version and cast Boston College’s behaviour in a distinctly unfavourable light.

We always said that Boston College had approved, not “prepared”, the donor contracts. The evidence for this was in an email that I sent to the college librarian and keeper of the Belfast Project archive, Bob O’Neill, on 30 January 2001 and his reply the next day.

The emails show that I and the lead IRA researcher, Anthony McIntyre, composed a donor contract that gave “ultimate control” over the disclosure of interviews to the interviewee until his or her death at which point ownership reverted to Boston College.

In the course of my email to O’Neill, I suggested that this draft contract should be vetted by the college attorney and in his reply to me, O’Neill assured me he would. I was later assured that this had been done.

However, an investigation by The Chronicle of Higher Education (“Secrets from Belfast”, 26 January 2014) extracted an admission from O’Neill that in fact he had not cleared the draft donor contract with the college’s lawyer. He also said that the contract should have included a phrase guaranteeing confidentiality “to the extent American law allows” but because he had not asked the college lawyer to vet the contract this was omitted. So we, the researchers, were misled into thinking that we were on legal safe ground. If that phrase had been in the donor contract, there is no way that myself, McIntyre or any of the participants would have had anything to do with Boston College or the Belfast Project.

Ed Moloney
Windsor, New York

I hope that the researchers arguing that there may be a silver lining for oral history in the wake of the unravelling of promises of confidentiality in the Belfast Project are correct (“Within these four walls”, Features, 5 June). But I see no silver lining for Boston College, particularly not for its Irish Studies Program.

Boston College did a great deal more than agree to “house” the project. Without its extensive financial support, the project would never have gotten off the ground. And it was Thomas E. Hachey, the executive director of the Center for Irish Programs, who rejected any participation by the many qualified historians at Boston College, an action that led directly to the subsequent fiasco.

In spite of many calls for an impartial investigation of Boston College’s involvement in the project and the ways in which decisions about it were made, the university has to date done nothing. As I wrote to The Boston Globe (Letters, 25 May 2014): “Nobody at the university has accepted responsibility for a project that has badly damaged the university’s reputation and harmed its prized relationship to both Ireland and Northern Ireland. Is nobody going to be held accountable?”

I cannot help but wonder if Boston College’s Irish Studies Program will be able to re-establish its close and trusted ties to Irish academic institutions unless that happens.

Peter Weiler
Professor emeritus and chair (1997-2003)
Department of history, Boston College

GUARDIAN: Call for investigation of alleged Boston College-IRA archive spying

Call for investigation of alleged Boston College-IRA archive spying
Governments urged to look into whether private communications to the US embassy in Dublin were illegally intercepted
Henry McDonald, Ireland correspondent
The Guardian
18 June 2014

The American and Irish governments have been challenged to investigate an alleged spying operation directed at a family at the centre of the Boston College-IRA archive controversy that led to Gerry Adams’ arrest in April.

Ireland’s prime minister Enda Kenny and the US secretary of state John Kerry have received letters from the Belfast Project’s director urging them to back a thorough criminal inquiry into claims that private communications from an American citizen and the US embassy in Dublin were illegally intercepted.

American-born Carrie Twomey’s husband, an ex-IRA prisoner, recorded the taped testimonies of Irish republicans for the Belfast Project. She has made a formal complaint to the Garda Síochána about how her private messages to US diplomats ended up in an Irish Sunday tabloid last month.

Ed Moloney, the Belfast Project’s director, has also written letters to the leader of the Irish Republic’s main opposition party Fianna Fáil and a powerful US senator calling on them to back an investigation on both sides of the Atlantic into how Carrie Twomey’s communications were made public.

In his letter to Kerry, Moloney states that “while we do not know for certain sources that I trust strongly suggest the involvement of a proscribed organisation rather than an agency of the Irish state”.

Moloney points out to Barack Obama’s peace envoy to the Middle East that he has also called on the Irish premier to support a trans-Atlantic criminal investigation into the spying claims.

“I believe that this is part of a mounting campaign of threat, menace and intimidation of the McIntyres. I fear for their safety and wellbeing and I expressed the hope that the prime minister would leave no stone unturned in the search for those responsible.”

And in his letter to the Taoiseach, Moloney says: “I am writing to ask you to leave no stone unturned in the search for those responsible and in the effort to make them amenable under the law. Tapping the phones of Irish citizens in any circumstances is unpleasant and offensive even when it is carried out within the law by legitimate agencies. But when it is done by illegal organisations and involves intercepting communications by an important ally it is, I am sure you will agree, a direct challenge to the authority of the state.”

The award-winning journalist and world authority on the IRA has also written to senator Robert Menendez, the chairman of the US Senate’s foreign relations committee, and Fianna Fáil leader Micheal Martin about the alleged spying operation on Irish soil.

The Sunday World newspaper last month reported that Twomey had written to the embassy and the US consulate in Belfast seeking political asylum for herself, her children and her husband. She has denied reports that her family are seeking asylum and that she ever worked on the Boston College project.

Twomey told the Guardian she had made no contacts with the paper and would be prepared to bring forward a large number of friends and acquaintances who would sign legal documents stating they had no knowledge of her communications with the US embassy in Dublin, let alone spoke to any newspaper about them.

There is no suggestion whatsoever that the Sunday World itself carried out any illegal hacking or act of interception regarding Carrie Twomey’s communications with US diplomatic staff in Ireland.

Her husband Anthony recorded and collated the testimonies of dozens of former IRA activists, some of whom have claimed on tape that Adams ordered the death and secret disappearance of Jean McConville in 1972. The Sinn Féin president has always denied any involvement in the kidnapping, killing and covert burial of the widow, whom the IRA accused of being an informer for the British army. Among those who accused Adams of playing a central role in the McConville murder scandal was the late Brendan Hughes, the former Belfast IRA commander whose taped testimony has been made public.

Since Adams’s arrest in connection with the McConville murder, McIntyre and Moloney have faced sustained verbal attacks. Sinn Féin councillors and their supporters have labelled them “Boston College touts” – a euphemism for informers.

Vortex of violence ensnared innocents such as Irish priest

Vortex of violence ensnared innocents such as Irish priest
By James F. Burns
Special to The Sun
The Gainesville Sun
7 June 2014

“Father! Come quickly — a terrible road accident and a lad needs last rites.” A knock on the door had summoned the Rev. Eugene McCoy to a sacred task. The Irish priest left in such haste with the men at his door that he forgot his rosary beads.

McCoy became suspicious when the car ferrying him to the accident scene suddenly swerved off the main road and pulled up in front of a ramshackle mobile home in a remote location. Taken inside, he was led to a back bedroom when he found a distraught young man bound hand and foot on the bed.

The priest had been tricked — but for a holy purpose — into being part of a paramilitary execution. He begged for Eamon Molloy’s life but to no avail. Death sentences are seldom commuted by the Irish Republican Army.

Sinn Féin leader Gerry Adams is a master magician. At least, that was Ed Moloney’s allegation in his 2002 book “A Secret History of the IRA.” Adams could make people disappear. He also excelled as a tightrope walker, gingerly treading the line linking politics with paramilitary activity. He would even carry coffins at IRA funerals and said he supported the IRA — but was never a member, mind you, another Houdini-like escape.

And like every good magician, Adams didn’t like secrets leaking out. Snitches were snuffed. And then made to disappear. Someone high up in the IRA command structure — Adams’ republican critics have nicknamed him “Itwasntme” — suggested that dumping bodies in the street had lost its deterrent effect and could even be embarrassing. Presto, Jean McConville, mother of 10, disappeared — for 31 years. Likewise, no one seemed to know where Eamon Molloy was — for 24 years. And so on.

And then the story moves to County Louth, Ireland’s littlest county and one right smack on the border created by the 1920 partition of Ireland into the six-county British province of Northern Ireland and the 26-county Irish Republic. The IRA was waging a war to erase that border; IRA math said that 26 + 6 = 1, i.e., a united Ireland. Their primarily-Protestant opponents did a different math, pointing out that “6 into 26 won’t go,” emphasis on “won’t” and with their own loyalist paramilitaries as enforcers.

Inevitably, the vortex of violence spilled over the border, ensnaring innocents such as McCoy, a County Louth parish priest. Louth was an ideal location for launching IRA attacks, secretly burying bodies, safe houses and field-testing bombs.

The 1998 Northern Ireland peace agreement turned terrorism to truce for the most of the combatants but left a lot of legacy issues unresolved, such as unsolved murders and parade route and flag issues. But life went on, and efforts evolved to understand the three decades of chaos and killing.

One post-peace project was Boston College’s collection of oral histories — confessions, if you will — by both IRA and loyalist terrorists, a valuable resource for future research. The 46 participants were supposedly given an iron-clad guarantee that their taped testimony would remain sealed until after their deaths.

But U.S. law was “treaty-trumped” in court by a bilateral agreement with the U.K., allowing release of some tapes for criminal investigation of Jean McConville’s murder. And the deaths of two terrorists had already allowed Ed Moloney to convert their tapes into another book laden with more accusations against Gerry “Itwasntme” Adams.

Sorrow knows no border, grief no religion, pain no politics — which is to say that all families, all friends, who have had their loved ones murdered during the Troubles deserve sympathy and support. The recent 40th anniversary of the dastardly loyalist bombings of Dublin and Monaghan that claimed 33 lives, including a mother and her two infant daughters, bears witness to the heartbreak on both sides of the border, both sides of the sectarian divide.

And who could not feel compassion for poor Father McCoy, caught up in a killing he could not stop. And there’s the final Irish irony of this sad tale. Resolved to administering last rites to Eamon Molloy, he realized that he had indeed forgotten his rosary beads in the hasty departure from home.

In a mix of the sacred with the sordid, one of the IRA men reached into his pocket and handed the priest his own rosary beads. Was it the same hand that then pulled the trigger?

James F. Burns, a retired University of Florida professor, formerly taught at Boston College and also stayed in County Louth with his family while on sabbatical in the British Isles.

When Research Meets Politics: Lessons from Boston College’s Belfast Oral History Project

When Research Meets Politics: Lessons from Boston College’s Belfast Oral History Project
By Dr Birgit Schippers
Senior Lecturer in Politics
St Mary’s University College Belfast
Compromise After Conflict blog

Much of the recent attention given to Boston College’s Belfast Oral History project has focussed on the question of confidentiality and its legal implications. The researchers on the project, the academic Dr Anthony McIntyre and the journalist Ed Moloney, claim to have put their faith in Boston College’s assurances of confidentiality agreements given to the research participants, specifically that recordings would not be released until after the death of the participants. The subpoena actions initiated by the PSNI and subsequent decisions by US courts have put to rest once and for all the naive belief that confidentiality assurances are iron-clad.

Less attention has been given to another aspect of this long and still ongoing saga: this is the relationship between research and politics. Hardly anyone hankers after the idea, always contested, that ideas move in a value-free vacuum produced by detached scholars who, sitting in their ivory-towers, are immune from the political values and ideas that influence them as knowledge-producers. Does the acknowledgement that academics carry political baggage allow them, though, to undertake their work with little or no consideration to their research participants, to the political contexts in which they work, or to implications their work has on other scholars?

Moloney refers to McIntyre as a ‘lead IRA researcher’, and his blog defends his and McIntyre’s professionalism, integrity and detachment. Yet, looking at the Boston College debacle, it appears that what the project lacks is the very professionalism, integrity and detachment that Moloney claims. What would shed light on Moloney’s claims is openness and honesty about the ethical integrity of the project. What is missing in the public debate around this issue is information on the ethical scrutiny and oversight applied by Boston College. Like any academic institution, surely Boston College must have a procedure for the ethical scrutiny of research, and an ethics committee that scrutinizes the ethical practice underpinning research. Did an ethics review happen in the case of the Boston College project? And what was its outcome?

The project is now treated by academics as a textbook case of ethical malpractice. In addition to the project’s well-rehearsed problems with confidentiality, it also raises concerns regarding the safety of the research participants. I wish to highlight a different issue: is it permissible to engage in research to make a political point? And is it acceptable to undermine good ethical practice in the name of a political cause? Both researchers on this project are well-known critics of Gerry Adams and the Sinn Fein strategy pursued under his leadership. This is a legitimate political view to take; it is also legitimate and necessary to submit the actions, ideas and practices of political actors to robust and critical scholarly scrutiny. However, when the political views of researchers permeate the aim and methodology of their research, we enter a grey zone where the lines between scholarly research and propaganda become blurred. From what we know so far, all of the republican research participants seem to espouse the same political stance as McIntyre and Moloney. Such an apparent disavowal of a balanced approach in its choice of research participants, together with Dr McIntyre’s recent insinuation that he used leading questions, challenges the aim, remit and indeed the name of the project. Put differently, was the project designed to produce an oral history archive of the protagonists of the conflict, or is its purpose to advance a one-sided view on the conflict? If the latter is the case, then this project disguises political propaganda as scholarly research.

The conduct of McIntyre and Moloney has shaken the trust of conflict protagonists to participate in oral history research, and it is fair to conclude that this project has had a negative impact on the use of research as an aid to understanding conflict. It has also damaged the prospects of other scholars, especially those interested in oral history and narrative research, to conduct similar projects. One would hope that future projects restore some of the lost confidence in the integrity of research and produce work that is more thoughtful and reflective.

When the police call, researchers require steadfast backup

When the police call, researchers require backup
Ted Palys and John Lowman
Times Higher Education
12 JUNE 2014

Shield laws could help protect confidential sources, but most vital is university support, say Ted Palys and John Lowman

Two recent cases have thrown a spotlight on the gulf that can occasionally separate ethics and the law. The release of seven Belfast Project interviews with Republican paramilitaries to the Police Service of Northern Ireland and the seizure of Bradley Garrett’s “place-hacker” research material (“Access denied”, Features, 5 June) highlight an acute problem. If the state can turn researchers into informers, why would anyone disclose to researchers information that could land them in jail, lose them their job or cause them some other serious harm?

What can the academy do to bridge that gulf?

In the UK, one solution would be a research shield law, protecting researchers from being forced to disclose confidential information or sources in court. This would emulate such laws in the US, the most expansive of which is the US Secretary of Health and Human Services “confidentiality certificate” system, which protects participants in health research.

Research shield laws evolved in the US as a result of dozens of instances of courts, congressional committees, litigants and grand juries issuing subpoenas seeking confidential research information. In the UK, however, as far as we know, no legal authority has ever issued a subpoena for that purpose, so legislators may have little appetite to create a shield law. This leaves researchers having to assert “research-participant privilege” using common law.

In Anglo-American common law, the principle that courts are entitled to everyone’s evidence is not absolute. Occasionally, courts weigh their need for evidence against another public interest, such as the sanctity of confidential relationships. A confidential communication protected against compelled disclosure is “privileged”. Courts have deemed lawyer-client confidentiality to be so important that it enjoys a “class privilege”, where the onus is on the party seeking access to a communication to show why the privilege should be set aside. Courts consider the value of other confidential relationships – such as priest-penitent, journalist-source, psychiatrist-patient – case by case. Here, the onus is on the party claiming the privilege to show why the court should recognise it.

Just such a case occurred in Canada this year. Police used a search warrant to seize the audio recording and transcript of an interview after learning that a person accused of murder had been interviewed by two University of Ottawa researchers years earlier for a project on sex work. The interview remained sealed until a court heard the researchers’ objections. The court recognised researcher-participant privilege and returned the interview without granting the prosecution access.

When not eligible for shield law protection, US researchers have turned to common law with great success. We have found only four cases where a legal authority ordered disclosure. Two involved grand juries. In both cases, the researchers chose to go to jail rather than to violate confidentiality. In the third case, the court used the researchers’ “limited confidentiality” warning to justify disclosure. The fourth case involved the Belfast Project interviews.

There are two main approaches to the legal limits on research confidentiality, which could be described as “law-first” and “ethics-first”.

All researchers seek to be both ethical and legal, but situations may arise where the two aims conflict. A law-first approach makes law the absolute limit of confidentiality: under such a principle, a researcher tells participants that they will comply with an order to disclose confidential research information. An ethics-first approach holds that it would be unethical for researchers to collect data knowing that they would become informants for legal authorities. Further, because it would so severely compromise reliability and validity, limiting confidentiality makes research involving sensitive and controversial social issues hardly worth doing.

Yet the importance of confidentiality is not lost on law-first researchers. While their conscience would have them comply with a disclosure order, they would use every legal means possible to avoid disclosure, taking their case to the highest court in the land if necessary. Ethics-first researchers would do the same – except in the last instant, when their conscience would lead them to defy a disclosure order. The only way that most researchers can defend confidentiality so wholeheartedly is with their university’s support. And therein lies the rub.

Take Garrett’s experience. When he was prosecuted, where was Royal Holloway, University of London, which approved his research? It ran for cover. What about the Belfast Project subpoenas? Initially, Boston College made a limp effort to challenge them, but then, incredibly, without the court compelling it, it handed over all the Republican interviews to the judge so that the content could be assessed. Where was the University of Ottawa when police seized the sex worker interview? It refused to fund the fight. If the Canadian Association of University Teachers had not provided funding to defend the researchers, what turned out to be a precedent-setting case might have been stillborn.

This is the most regrettable lesson of these experiences: the failure of university administrators to stand up for research confidentiality is an attack on academic freedom.

Ted Palys and John Lowman are professors of criminology at Simon Fraser University, Canada, and authors of Protecting Research Confidentiality: What Happens When Ethics and Law Collide (forthcoming, 2014).

News of Interest: Lurgan dissident republican ‘finds bugs in his car’

Lurgan dissident republican ‘finds bugs in his car’
By Vincent Kearney
NI Home Affairs Correspondent
BBC News
12 June 2014

A dissident republican from Lurgan, County Armagh, is taking legal action after finding surveillance equipment hidden in his car.

The man, who does not want to be named, is a member of the Republican Network for Unity.

He discovered what appear to be battery packs and a transmitter hidden behind the rear bumper of his car.

They are believed to have been attached to a listening device hidden somewhere in the vehicle.

There was also a smaller device, believed to be a GPS locator that would have enabled those who planted it to track his movements as well as listen to anything said inside the car.

The man believes the equipment was placed in his car after he refused an attempt to recruit him as an informer.

He told the BBC he was approached at Belfast International Airport in April as he waited to board a plane to fly to Spain with his wife.

“Two men introduced themselves as members of the British security services and asked me if I would be willing to work for them. I refused,” he said.

“A few weeks ago Martin McGuinness said there is still a dark side of policing, well this is it.

“This is not the work of ordinary police officers, this is clearly the work of special branch, MI5, the Army, or a combination of all of them.”

The man brought the equipment to a solicitor in Belfast on Thursday morning and has now initiated legal action.

Solicitor Kevin Winters said complaints will be lodged with the Police Ombudsman and the Investigatory Powers Tribunal, which investigates complaints about the activities of MI5.

“We do not know who is responsible for planting these devices so are making complaints to the ombudsman and the body set up to investigate allegations against the security services,” he said.

“This kind of activity represents one of the worst types of oppressive state interference in a person’s rights to privacy it also puts his life at risk as he was previously asked to work as an informer.

“We are now due to contact the PSNI or any agency so directed to collect their property for safe guarding.”

‘House raided’

The man at the centre of these complaints, referred to by his solicitor as Mr X, claims he has been subjected to a sustained campaign of harassment since refusing to agree to work for the security services,

“My house has been raided three times in recent weeks, my car has been bugged and I’m watched every time I step outside my front door,” he claimed.

The discovery of listening devices is nothing new. There have been many similar discoveries during the past 40 years, including one hidden in a car regularly used by Sinn Féin leader Gerry Adams.

The police and security services argue that they are an essential part of their armoury in their efforts to minimise the risk posed by dissident republican groups.

Chief Constable Matt Baggott secured an additional quarter of a billion pounds of security funding from the Treasury over a four-year period.

Kevin Winters Solicitor Kevin Winters said complaints will be lodged with the Police Ombudsman and the Investigatory Powers Tribunal,
Much of the money was used to pay for covert policing operations aimed at monitoring and disrupting the activities of dissident republican groups.

The security service MI5 and the Army’s Special Reconnaissance Regiment are also involved in covert operations, including surveillance of known and suspected members of these groups.

They argue that it would be negligent not to observe individuals who may be involved in dissident activity, and say covert policing has resulted in large numbers of planned attacks being disrupted.

See also:

Listening Devices


Justice on the Cheap at the Cost of History

Justice on the Cheap at the Cost of History
Thing Discovered to Be What It Is
Chris Bray
Wednesday, June 11, 2014

The legal justice system in Northern Ireland is now discovering something that they might always have known, if they had ever bothered to ask.

Lawyers for Ivor Bell, who stands accused of long-ago IRA membership and complicity in the events leading to the 1972 murder of Belfast widow Jean McConville, have argued before a judge that the oral history interviews being used against their client are subjective and unreliable. They are. Indeed, they must necessarily be all of the things Bell’s lawyers say they are. Oral history interviews are valuable to historians precisely because they are entirely subjective, the personally framed stories that people tell about themselves. Subjectivity and unreliable narration aren’t a failure of the form; they’re an inevitable feature.

In Los Angeles, locked in the archives at the University of California, researchers can find the massive transcript of a long series of interviews conducted with Jack Tenney, a California state legislator during the communist-hunting years of the McCarthy era in the United States. For years, Tenney chaired a committee that found communists under every rock in Hollywood, and nearly every rock everywhere else. “You can no more coexist with communism,” Tenney said, “than you can coexist with a nest of rattlesnakes.”

There was just one problem for California’s leading slayer of far-left monsters: He had been a well-known and longtime activist on the political left. He spent the rest of his life trying to forget that inconvenient past.

The oral history interviews archived at UCLA endlessly reveal the depth of Tenney’s later self-deception, as the interviewer leads him through a series of events and asks for his explanation. His membership in the leftist National Lawyers Guild? Well, see, he was sitting in his office when this young man came by and asked for two dollars for some new organization, and Tenney was distracted, so he fumbled for his wallet and paid the initiation fee, not knowing what he was joining. He was later spotted at an NLG convention, wearing a delegate’s ribbon on his lapel, because he had checked into the hotel on business without knowing the Guild was meeting there. Then he bumped into some very, very distant acquaintances, who insisted on giving him a ribbon as a friendly gesture, and he didn’t want to offend them, so….

Tenney’s interviews go on like this for hundreds of pages, revealing a man at war with his own life and trying to talk his way out of his past. The interviews are, in other words, oral history: True in parts, false in parts, often deeply revealing in both. The way a person lies about his own life tells you as much about who he is as the parts that are factually accurate.

The Belfast Project, the oral history interviews of Northern Ireland paramilitary fighters conducted under the aegis of Boston College, could have been a project of enormous value for historians. It would not have been valuable because every word in every interview was true, and no historian would have approached the interviews on those terms. The richness of the project would have been found in its collisions between verifiable fact and proven deception, in the way people told their own stories about the politics of a violent past. The collection would have been an extraordinary resource, but will now be taken apart and destroyed, piece by piece.

That needless act of destruction is taking place because of the breathtaking naivete and laziness of the PSNI’s hapless and self-interested detectives, who believed they could make up for a forty-year investigative failure by going to the Burns Library and checking out a set of interviews that someone else bothered to conduct. Police in Northern Ireland apparently believed they could seize a set of academic interviews, type a few pieces into a report for prosecutors, and deliver some justice on the cheap.

Few authorities have ever been more wrong, or more avoidably foolish. Oral history interviews are not police documents. It was stupid to believe they could be.

Confidential info threatened, but technology can help

Confidential info threatened, but technology can help
Jonathan Zittrain
Boston Globe
June 08, 2014

More than a decade ago, researchers at Boston College interviewed people from both sides of the Troubles in Northern Ireland, promising each contributor to the Belfast Project that his or her interview recording wouldn’t be released until the contributor died. In the meantime, the tapes would be deposited at the college’s rare books library under lock and key. On the basis of those promises, some people spoke for the first time about painful actions that remain murky in the public eye, including unsolved murders that they’d helped commit or cover up.

When the British government learned of the Belfast Project about 10 years later, it invoked a mutual legal assistance treaty to demand immediate access to some of the tapes. After months of legal wrangling, some of the tapes were turned over, resulting in the arrest in April of Sinn Féin leader Gerry Adams in connection with one of the killings discussed in the interviews. Adams was released, but Northern Ireland officials are now seeking the entire set of interviews — perhaps to balance an inquiry into the Irish Republican Army with investigation of possible crimes by members of the Ulster Volunteer Force as well.

Libraries like Boston College’s are familiar with making promises about the “dark archiving” of materials like these, whether for the papers of a Supreme Court justice, an interview with a soldier ready to give a sustained look at the conduct of war, or the records of the university’s own faculty and students. But just as it has become easier to quietly maintain such records, the reach of the subpoena has also increased. These records are more accessible and searchable than ever, whether for intelligence or law enforcement purposes, or to benefit a party to a divorce or other private lawsuit.

The increasing legal pressure against archives has created anxieties among researchers, librarians, and journalists. They cite the need to protect sources who wish to make a record for posterity; procuring documents and interviews from those sources will be difficult if the fruits are only one subpoena away from disclosure. On the other side include those who simply want to solve awful crimes and make the perpetrators answer for them on the law’s timetable rather than their own.

Are we stuck with either having to destroy our secrets or leave them exposed to near-instant disclosure? It might be possible to split the difference: to develop an ecosystem of contingent cryptography for libraries, companies, governments, and citizens. Instead of using new technologies to preserve for ready discovery material that might in the past never have been stored, or deleting everything as soon as possible, we can develop systems that place sensitive information beyond reach until a specified amount of time has passed, or other conditions are met.

There has been fitful research done on “time capsule cryptography,” by which something can be encoded so that not even its creator can access it until after a certain amount of time. Such cryptography might depend on the kinds of “proof of work” puzzles — which require vast computing power over an extended period — that undergird the operation of bitcoin and other cryptocurrencies. Cryptocurrencies, whose operations are distributed across a number of computers, use the puzzles to prevent any one entity from taking control of the system.

What works to prevent any one party from subverting a currency could also place some of the data increasingly comprising our lives beyond the reach of a simple subpoena, by forcing the curious to wait a designated period of time before they can see what they want — even if they have legal paperwork that purports to entitle them to it sooner.

Even without relying on such complicated technologies, sensitive material can be encrypted using a key that is split into fragments, the way that it can take two simultaneous keys to launch a missile. Imagine key fragments distributed around the world to, say, 10 parties, requiring the cooperation of at least six of them to reassemble the key needed to get the documents. The parties would be instructed only to announce the keys when the original owner’s specified conditions are met. Early disclosure wouldn’t be impossible, but it would require a sustained effort that would only be worth undertaking if the access were a genuine priority, and one justifiable to the authorities of several countries who could each in turn pressure their respective keyholders. That kind of encryption is easy to do.

The original conception of a trust company was as a firm that would solemnly represent the interests of its beneficiaries — which is why a bank worthy enough to be entrusted with one’s savings might also be worth entrusting with decisions about a child’s college fund if the parents became incapacitated. Banks may not be among the most trusted institutions today, but libraries are. And they can together embrace a new generation of encryption technologies to safeguard materials that otherwise will never be created or saved for fear of early discovery.

The Belfast Project is simply a high-profile example of a phenomenon that reaches into the lives of nearly every institution integrated into the digital world — and reaches us, since we are the users of those institutions. Corporations increasingly recognize that whatever they store is discoverable through judicial process — or all too leakable by a disgruntled employee. That’s why any business beyond a mom-and-pop is likely to have a formal document-retention policy for its internal secrets — which is in reality a document-destruction policy, intended to eliminate potential embarrassments and liabilities that lurk in mountains of accrued bits.

It’s more complicated when those businesses are merely custodians of their customers’ data. Google, Facebook, and Microsoft are routinely caught in the middle when, for example, Brazilian authorities demand information about a subscriber and don’t want to use the cumbersome mutual legal assistance treaty process to get it. The Brazilians threaten penalties for holding back information that American law may insist not be disclosed. Or vice versa: The public has been inundated with descriptions of the US government’s mining of digital databases for foreign intelligence, in large part thanks to a leak of the government’s own materials.

Imagine, though, if the records of private firms, government agencies, and individuals from earlier eras came free in a scheduled way, as trustees combined their keys to release them as time passed or other conditions were met. (In the case of Boston College’s promises, it might be that a keyholder would commit to publish its part of a key only upon the announcement of the death of a Belfast Project interviewee.) Subjecting secrets about government intelligence gathering to time capsule accountability by those governments could serve as a trust-restoring measure. Some actions today might reasonably remain secret — but with a guarantee that they will be revealed at a later date certain, even if the government in question feels later regret over entering into the bargain.

The last refuge of privacy cannot be placed solely in law or technology. It must repose in both, and a thoughtful combination of the two can help us thread a path between having all our secrets trivially discoverable and preserving nothing for our later selves for fear of that discovery.

Jonathan Zittrain is a professor of law at Harvard Law School and the Harvard Kennedy School, and professor of computer science at the Harvard School of Engineering and Applied Sciences. He co-founded the university’s Berkman Center for Internet & Society, and directs the Harvard Law School Library.