Ed Moloney: Boston College and Me

Ed Moloney: Boston College and Me
A personal account of the Boston Project
Off The Record
11 August 2014

It was one of those early May mornings so typical of New York City. Bright sunshine and a cold, fresh breeze that blew occasional clouds and rain showers over the streets of Riverdale. Not quite springtime but a promise that it was on its way. And then the phone rang and the clouds suddenly darkened.

“I have some bad news” said the voice on the other end. “But before I say anything you must promise me. Keep me out of this.” It was a friend at Boston College where from 2001 to 2006 I had been director of an oral history project set up to collect interviews with participants from both sides of the conflict in Northern Ireland.

The IRA ceasefire and the 1998 Good Friday Agreement had made the idea possible; Boston College had made an indirect approach, asking for ideas for projects it could fund to mark the historic moment. I suggested creating an oral history archive that would collect the accounts of activists from all sides of the conflict, from paramilitaries to police; it would be a view of Ireland’s most traumatic quarrel from a grassroots level and the college was enthusiastic. We both agreed, it should be done quickly before time and age made it impossible. And we agreed security for the participants was paramount.

Discussions started with the college in the summer of 2000 and by early the following year the archive was under way. By 2006, when college funding ended, archives with IRA and Ulster Volunteer Force interviews (the UVF was the most violent Loyalist/Protestant group) had been created. The effort to include the police had been stillborn but we had created an historically valuable if small project, one that would provide many insights to historians.

Gallons of ink have been spilled detailing the dispute between myself, the Irish researchers and Boston College over whether false guarantees were knowingly given to participants. My view was then and still is that the college had underwritten a guarantee that the interviewees had sole rights over access until their death, that it would be safe from hostile intrusion, particularly from a foreign government. This was an American archive after all and was it conceivable that Washington would allow foreigners to invade and pillage it?

What we did not know until only recently, thanks to an investigation carried out by the Washington-based Chronicle of Higher Education, was that a promise given to us by BC back in 2001 that the crucial donor contract would be vetted by the college’s lawyers was a lie. The donor contract as we wrote it guaranteed confidentiality until death, in other words that no-one except the interviewee could access the interviews. If the contract has been vetted, as we were told it would be and later that it had been, the contract should have included a health warning; we would certainly have withdrawn from the project had that happened and I would not be writing this account. But it hadn’t been vetted, we had been given a false promise. We had been misled; there was no vetting.

But less attention has been paid to the character of the response of one of America’s more prestigious colleges to the threat to academic freedom, as well as to the wellbeing of those who had agreed to take part in its project, posed by subpoenas served by the DoJ on behalf of Northern Irish police in 2011. How did Boston College acquit itself in one of the most consequential struggles ever between government and academe in the US?

So back to that May 2011 phone call. My friend had called to tell me that a subpoena had just been served on behalf of the British authorities seeking two interviews, both with former IRA figures, Brendan Hughes and Dolours Price. Hughes was dead and at his request a book – ‘Voices From The Grave’ – had been published, based on his recollections; Price was still alive. But the friend was nervous. We, the Irish researchers, were not supposed to know about the subpoena, he said. It was being kept a tightly guarded secret inside the college even from those who had most to lose. That alarmed me even more than the news that a supposedly inviolable archive had been invaded.

I put in a series of calls to the college’s legal counsel, Nora Field. I had only one question to ask, at least initially: was Boston College going to resist the subpoena? Each call was met with a similar response: she was busy, she couldn’t get to the phone and so on. So I called the college librarian, Bob O’Neill, explained what I knew and asked him to get a message to Field, I needed to speak to her about the subpoena.

He never called back, so I phoned him only to hear him admit what I already suspected. Boston College’s legal counsel did not want to speak to me even though the subpoena could put the lives and freedom of our interviewees at risk. Since I only wanted to discover if the college would fight, her silence told me all I needed to know. I had also heard that sentiment in the counsel’s office was edging towards an immediate handover; people there, I was told, were saying things like “….these people (the interviewees) were just a bunch of terrorists anyway.”

So, I picked up the phone and called Jim Dwyer at the New York Times, an experienced and skilled Irish-American reporter who would understand the gravity of the situation and its implications. The next morning the story was on the front page. By the beginning of the following week Boston College had hired an outside attorney; the tactic of shaming them into a fight had worked but at a cost. The college’s hostility to me deepened and as time passed and our criticism of the college’s cowardice intensified so did the antagonism to me and to Anthony McIntyre, the lead IRA researcher.

In the months and years that followed I would often have cause to recall a story that Harvey Silverglate, that venerable champion of civil liberties in Massachusetts, told me. Bob Drinan was a Jesuit priest who had been president of Boston College’s law school back in the 1970’s and had been elected to Congress on an anti-Vietnam war ticket. Had Drinan still been around when the subpoenas were served, Harvey said, he would have removed them from the archive, locked them in his office safe and defied the federal government to come and get them. And he would have mobilised the Jesuit Order and all of Boston College’s not inconsiderable legal, financial, academic and political resources to resist the intrusion, all the things the modern Boston College lamentably failed to do. “They were frightened of the fines the federal government could impose,” he explained.

So this story is as much the tale of an altered American academe in which the business model has replaced the place of learning and research.

A week or so later the IRA researcher Anthony McIntyre and the UVF interviewer Wilson McArthur and myself had a conference call with the college librarian Bob O’Neill, who kept the archive, and Tom Hachey who headed up the Center for Irish Programs. Hachey, a close friend of the college president, Fr William Leahy, also a Jesuit, was in charge of the project. The call was notable for two things: the two academics were keen to know what we remembered about the guarantees of confidentiality each had given us, as if they wanted to know what our defence would be, and it would be last contact any of us had with them. In subsequent weeks phone calls and emails to them went unanswered.

With one exception. We were worried that there could be more subpoenas and to avoid that, we asked, surely the remaining interviews could be moved to a location outside the reach of the British? I wrote to Hachey and O’Neill suggesting that the archive be relocated to the south of Ireland, to McIntyre’s home. He had vowed never to surrender the interviews and anyone who knew him would realise he meant it.

The British would have to launch a legal action in hostile territory and the odds were that the interviews could be safeguarded. But the two men refused, citing an interview I had given to the Boston Globe saying that if the other interviews were really in danger they should be destroyed. I still believe that in preference to a handover that was an acceptable option but if the archive had been moved it could have been safely preserved and kept out of British hands. We never heard another word from Hachey and O’Neill.

In August 2011, the Boston Globe published an editorial urging Boston College to hand the tapes over and I immediately emailed Hachey and O’Neill asking if the college would respond. There was no reply. The refusal to relocate the archive was a bad sign, this was even worse. The college had agreed to fight, or rather had been forced to, but it was becoming clear there was no enthusiasm for the struggle. The signals from Boston College to the British were clear: they were pushing at an open door.

So unsurprisingly, the same month a second subpoena was served, as we had feared, asking for any and all interviews that mentioned Jean McConville, the widowed mother-of- ten whose abduction and ‘disappearing’ by the IRA in 1972 over allegations that she was an informer was supposedly the reason for the legal action. (It should be noted that prior to this the authorities cared so little for her that for the best part of twenty years her death had not even been classified as murder and there had never been an investigation into her killing worthy of the name. When I revealed the story back in 2002, (in my book ‘A Secret History of the IRA”) essentially the same story allegedly contained in the archive, the police showed no interest at all.)

In the interim, McIntyre and myself had penned a reply to the Globe editorial and we soon discovered how this had enraged the administration at Boston College. On August 17th, 2011 we received an email from the college’s attorney informing us about the second subpoena and telling us that the previous day the college’s response had been filed with the court. It was too late for our input and the message was clear: we were being excluded from the case.

The next day another email from the attorney arrived. It read: “Ed – Boston College asked me to remind you that my keeping you informed about developments in the case is with your agreement that you will not go to the media about the information, but let us proceed with the court process.” We were being punished because we had dared criticise the Boston Globe for advocating surrender to the PSNI.

So to summarise: the college’s lawyer had refused to speak to me when the subpoenas were served and if the college had got its way the first we would have known about the matter was when people were arrested in Belfast; I had been forced to go to the New York Times to compel and embarrass Boston College to fight; the two people at the college we had trusted most had cut us off and the college was refusing to publicly criticise the British action. Now we were being muzzled and sidelined, told to keep our mouths shut or suffer the consequences.

The college was abdicating the fight outside the courtroom and signaling furiously that it didn’t care much about the fight inside it. As that email indicated, Boston College was refusing to organise a campaign to protest the subpoenas. Anyone who has experienced this sort of ordeal can tell you that you win or lose outside the courtroom as much as inside. It was time for action.

We asked Eamonn Dornan, a Queens, New York-based, Irish-American attorney who also practises as a barrister in Belfast and Dublin if he would represent us on a pro bono basis. He agreed and set about filing pleas to establish our standing in the case. Jim Cotter in Boston agreed to represent our interests there, again on a pro bono basis, and thanks to Harvey Silverglate, the Massachusetts ACLU joined the team. Our gratitude to all these lawyers was in direct proportion to our dismay over Boston College’s behavior.

By this point Irish-American groups, the Ancient Order of Hibernians, the Brehon Law Society and the Irish-American Unity Conference, had joined the campaign. These groups were alarmed at the consequences for the peace accords and for the architect of the IRA’s peace process strategy, Gerry Adams – who we all agreed was the real target of the British action. Their first achievement was to recruit John Kerry, then the Massachusetts-based chairman of the Senate Foreign Relations Committee, now Secretary of State. He issued a statement urging Hilary Clinton to intervene, to get the British to withdraw the subpoenas in order to protect the Good Friday Agreement, the deal that had been brokered in large part thanks to the efforts of Presidents Clinton and George W Bush.

The striking thing about Kerry is that he is a graduate of Boston College Law School but it was Irish-Americans who recruited him, not Boston College. I later lobbied Kerry’s successor in Washington Robert Menendez and discovered Boston College had never been near him. Not only was Boston College boycotting this campaign but there was no effort that we could see to mobilise other colleges to the cause; some people suggested that it was actually discouraging them and while we never had evidence of that there’s no doubt that had Boston College tried, a well organised effort could have galvanized American academe; after all the subpoenas potentially had enormously negative consequences for scholars.

The first court challenge was in December 2011 at the Federal District court in Boston, in front of Judge William Young who had presided over the trial of the shoe-bomber, Richard Reid. No-one expected success here. The important phase would be the appeal, in front of the First Circuit based in Boston and then perhaps at the Supreme Court.

As expected we lost but within days Boston College announced it would not appeal. We had fallen at the first hurdle and now the college was abandoning the fight.

But worse was to come. After Judge Young ruled against the college he then had the task of deciding which interviews were responsive to the subpoena, in other words which interviews should be handed over. His first instinct was to ask the college to undertake that task; after all Bob O’Neill would be familiar with the archive’s contents given that he was its custodian.

When he called his court to order in late December 2012, Judge Young was presented with a sealed affidavit by the Boston College attorney. We only know its contents because the subsequent interaction between an astonished Judge Young and the college attorney was witnessed by Jim Cotter, our attorney. The affidavit, he learned, contained the extraordinary claim from O’Neill that he could not help the court because he had not read the interviews!

I knew this was a lie because O’Neill and myself had often discussed the interviews and it was always evident to me that the librarian was so familiar with their contents because he had read them, as indeed he was duty bound to do.

The true purpose of the college’s ploy soon became evident. The college attorney suggested that instead the court should approach Anthony McIntyre in Ireland to ask for his guidance. Given that six years had elapsed since the project had ended McIntyre could hardly be expected to remember such fine detail but anyway he took a principled stand, in contrast to O’Neill, saying he refused to co-operate in the betrayal of his sources.

And of course that opened the way for Boston College to lay the blame on McIntyre for what followed. Judge Young announced that since no-one from the college would help him, he would take the entire archive into his custody and read them over the Christmas vacation.

All 186 interviews were removed from the college’s sealed archive, the sanctity and security of a confidential collection of interviews sacrificed entirely unnecessarily. In his final judgement the true cost of Boston College’s temerity became evident. Judge Young ruled that if an interviewee had given say 15 interviews but only one mentioned Jean McConville, all fifteen would be handed over. The total was 85 interviews; in Belfast the police were undoubtedly licking their lips. It was a disaster directly caused by Boston College’s cowardice.

O’Neill and Hachey then wrote an Op-Ed piece for the Irish Times blaming McIntyre for this mass handover.

Shifting blame away from the college onto ourselves for everything that had happened had by this stage become the hallmark of the college’s approach to the subpoenas.

Leading that offensive was the college’s flack, an extraordinarily aggressive individual by the name of Jack Dunn, whose attitude towards the truth was that it was an inconvenient obstacle in his way, to be discarded, ignored or shaped to fit whatever narrative was necessary. Nor did he bother too much with due diligence.

Not long after the District Court hearing, Dunn gave an interview to the Irish state television station RTE, alleging that a book I had written, ‘Voices From The Grave’, based on the interviews given by Brendan Hughes had been inspired by financial greed. (The truth was that the book was written to fulfill a promise given by McIntyre: when Hughes was interviewed he knew he was dying and he asked that his account be published after his death.)

O’Neill and Hachey were excited by the prospect. Faber agreed to publish it and the two academics asked to share the byline with myself; I was agreeable but Faber baulked, preferring a single byline by an author who was known in Ireland and the UK for his coverage of the IRA. Instead the two academics agreed to write the foreword.

They also asked that Boston College share the royalties equally with myself; 50 per cent for me and 50 per cent to be given to O’Neill’s library and Hachey’s Irish Institute. I happily assented to the deal and the only extra payment I received was an advance of some $13-14,000 to write the book.

The problem was that neither man had told Jack Dunn, or it seems anyone else in authority at Boston College. Dunn went on RTE to announce: “I think quite frankly that Mr Moloney was so excited about this project and quite frankly so eager to write a book from which he would profit that he chose to ignore the obvious statements that were made to him including a contract he had signed expressing the limitations of confidentiality.”

Unfortunately for Dunn there was an email record to substantiate my account; this showed that O’Neill and Hachey had asked my agent and through him Faber, to share the byline and had then cut a deal to share royalties equally with myself. RTE broadcast a corrected version and on the programme Dunn was forced to admit that he had only learned the truth from O’Neill the day before.

The story didn’t end there. The royalties were supposed to go into BC accounts but didn’t; the money instead ended up in the private bank accounts of Hachey & O’Neill and I have the bank records and emails to prove it. Even so, Dunn is still repeating this canard about the book and my role in it. Extravagant lies about myself and Anthony McIntyre have characterised Boston College’s campaign against ourselves for compelling the college to fight the subpoenas even to the limited extent they did.

“Getting a bang for its buck” was, with hindsight, always a priority for Boston College and this explains why the folks there were so happy at the prospect of having a book published and so eager to bask in the reflected glory after it was published. It also explains why and how the project ended.

Towards the end of the academic year in 2006, I received a phone call from Tom Hachey. “Do you think”, he asked, “that there might be a chance that the interviewees would agree to change their contracts, so their interviews could be made public while they were still alive?” The significance of that question is that it demonstrates that Boston College had no evident legal worries about interviewee confidentiality. While that served to reinforce our confidence in the project’s safety, I refused on the grounds that we had given our word and that breaking it would mean participants facing a vengeful IRA.

Hachey then traveled to Belfast and met the two researchers who gave him the same response. A few weeks later we were told the college was ending its funding; the project would be closed down. Would the response have been different if we had agreed to Hachey’s request? I don’t know but I suspect the answer is yes.

After the District Court setback, we and the Irish-American groups lambasted Boston College for their cowardice in refusing to take the case to appeal. A shamed college eventually announced it would challenge Judge Young’s decision to hand over so many interviews but not his ruling to accept the subpoena. It was rather like the condemned man arguing with the hangman over the length of the rope; he would still die but perhaps a little slower. Boston College won that appeal, thankfully; but it was all so unnecessary. We took our claim to enter the case to the doorstep of the Supreme Court but failed to get a hearing. Last Fall, the remaining interviews, reduced from 85 to eleven were handed over.

I have always believed that if Boston College had thrown its full weight behind the campaign to resist the subpoenas we might well have won; at the very least the message would have gone out from American academe that US colleges were ready to fight to guard the confidentiality of their research subjects, especially from a foreign power. Instead the signal has been sent that they will in all probability be abandoned. Who now in their right mind would agree to participate in a controversial research project in America, especially any dealing with its recent conflicts and wars?