News Letter Special on BOSTON TAPES: I was man on ground, says McIntyre

News Letter Special on BOSTON TAPES: I was man on ground, says McIntyre
Ben Lowry
News Letter

Anthony McIntyre’s home in a postwar housing estate, south of the Northern Ireland border, is a long way from the tree-crammed streets of Newton, Massachussetts.

The latter suburb is where Boston College (BC) is located, centre of the tapes drama in which McIntyre, 57, is arguably the key player.

The one-time IRA killer carried out 25 of the 26 interviews with republican paramilitaries for the so-called Belfast Project.

Speaking to the News Letter about the saga from his house in the Republic, McIntyre explains that the 26th interview in the series was of him, carried out by an unidentified interviewer. The 14 loyalist interviews were conducted by Wilson McArthur.

All were due to be confidential until the death of the participants.

The journalist Ed Moloney informed him of the tapes project in 2000 (the pair first communicated when McIntyre was in prison).

“We were soul mates in the sense that we shared the same analysis,” he says, although adds that this was “intellectual”: “Ed didn’t claim to be a republican.”

McIntyre was central to the project because he chose the republican interviewees.

“I was the person on the ground,” he says. There are some interviewees whose identity Moloney still does not know (each was known by a letter).

McIntyre will only say of his own interviewer that he has, like him, a PhD. McIntyre got his doctorate at Queen’s, under the former advisor to David Trimble, Lord Bew (who was later a visiting BC academic at the start of the project). They also first communicated when McIntyre was in prison.

“I’d be very friendly with Paul Bew,” he says.

The interviews were carried out from February 2001 to 2006. McIntyre does not accept that Moloney’s 2010 book, Voices from the Grave was the undoing of the project (Brendan Hughes made allegations in it about Jean McConville’s murder).

McIntyre blames the unravelling on Dolours Price interviews in the Irish News and Sunday Life, in which she made similar allegations.

McIntyre’s American wife Carrie Twomey (who sits in on our interview, and who in tone seems if anything more agitated about the tapes saga than him) points out that the interview with Hughes was in the book, so there was no need for a legal bid to recover it.

The Price tape, however, was unknown to the outside world until she spoke out and “was taken advantage of”.

“Boston College failed on every front to really defend the archive based on that because they said, ‘well she opened her big mouth’.”

McIntyre says that after the Price interviews “the PSNI went to the McConville family”. BC and the McConvilles say that the family approached the police (on Saturday we will report the McConvilles’ view of the saga).

Carrie says that when the subpoenas arrived, BC took a corporate decision not “to be associated with terrorists”.

But didn’t BC fight it in the courts? “Only because we shamed them into it,” says Carrie. [BC’s version of events is here]

McIntyre is relentless in his assaults on BC, barely accepting that anyone else shares blame.

What about the idea that September 11 radically improved British and American co-operation over any terrorism, including of the Irish variety?

“Why didn’t they tell us at the time? The very night of September 11 I was interviewing one of the interviewees,” he says. “Boston could have said then there is a change here.”

The only possible chink of disagreement between McIntyre and Moloney is when McIntyre is asked about the book.

“I didn’t like the book appearing,” he says, but immediately adds: “I wasn’t blaming Ed.” His fear was that the Provisionals would “make life hard for me or the people they thought were interviewed”.

When the News Letter puts to McIntyre BC Professor Kevin O’Neill’s criticism of his interviews – that he lacked training in oral history and had a clear perspective – he says: “It is a fair enough comment.”

But he was “of these people” and able to talk to them better than an oral historian.

He concedes that mainstream republicans would not talk to someone such as him, but uses that point to get in another dig at BC: “That was the task of the university … the college would have known that Moloney wasn’t popular with the Provos, I wasn’t popular with the Provos.”

He says he interviewed members of Sinn Fein, but adds with a chuckle: “A minority.”

He says the loss of the project is “a devastating blow to research” but adds: “If losing all the material is the only way of protecting participants from harm so be it.”

Carrie interjects: “It is an act of British vandalism.”

As a model for truth recovery, McIntyre says the project was “very meritorious”.


Anthony McIntyre must have had qualities that were admired by the Provisional IRA, because his progress within its ranks was rapid.

He was already in charge of the organisation’s Lower Ormeau faction by the age of 18, when he was imprisoned in what he calls Long Kesh.

He stayed behind bars there until December 1992.

McIntyre had been the gunman in the team that shot dead the UVF member Kenneth Leneghan, on the Donegall Pass in Belfast in February 1976.

He had joined the Provisionals in 1973.

“I had seen a lot of sectarian killings,” he explains.

McIntyre took part in the Blanket Protest in the Maze in the late 1970s and was a prisoner throughout the hunger strikes of 1981.

By the time of his emergence from prison, as the IRA was moving towards ceasefire, McIntyre was one of their more hardline members.

By the time of the second Provisional ceasefire, in 1997, he predicted that Gerry Adams was interested in “renegotiating the terms under which the British ruled here, it wasn’t about getting rid of the British, so I objected”.

Asked if he considers himself a dissident, he says: “I am quite happy to be called one.”

He says that the phrase was honourable in the Soviet era, when it referred to people such as Aleksandr Solzhenitsyn, but that “here dissident became something synonymous with pervert and deviant”.

Asked if he is involved in any political groupings that would be considered dissident, he says: “I’m not aligned to any group, militarily or political.”

He moved to the Republic in 2007, before the tapes controversy flared up, but says he now can’t return to Northern Ireland because of it for fear of arrest.

When he is asked how he thinks victims might view the tapes, McIntyre says: “If I was a victim I would probably be demanding access to the archives.”

But he says – acknowledging that what he is about to say is a “hard ask” – “victims should consider trying to obtain justice through revelation rather than justice through retribution”.

The latter leads “to a situation were everyone clams up and nobody gets anything”.

He says: “I’ve always argued that we shouldn’t pick at the scabs and prosecute people.”

Asked whether he extends that to Bloody Sunday soldiers, he says those shootings were a war crime, but yes, he does.

Does he have regrets about his own violence?

“I’m not somebody who sits down at night and worries about it too much.”

As the interview with the News Letter goes on at length, McIntyre and Twomey’s children interrupt to ask about dinner.

He says that at 18 he was indifferent to the fact that Leneghan was a father.

Now he wonders: “Should you ever be taking away people from their children?”

News Letter Special on BOSTON TAPES: Professor takes college to task over saga

News Letter Special on BOSTON TAPES: Professor takes college to task over saga
Ben Lowry
News Letter

A historian at Boston College tells BEN LOWRY of his sadness about the disastrous outcome of the college’s project, and his regrets at the way it was handled

In an old building, one that might be described by American realtors as ‘a handsome colonial’, is the academic department at the heart of the Boston Tapes saga.

Connolly House (pictured below) on the sprawling Boston College campus contains the Centre for Irish Programmes and the offices of Professor Tom Hachey, executive director of the centre and one of the brainchilds of the tapes.

The project has rocked the Northern Ireland political process, specifically the contentious question of how to deal with our troubled past. It has raised far-reaching questions about free speech and the boundaries of confidentiality.

Known as the Belfast Project, the tapes were made up of interviews with 26 ex-IRA members (25 conducted by the former republican prisoner Anthony McIntyre, and the last an interview of McIntyre) and 14 loyalists (interviewed by Wilson McArthur), to be held in confidence by the college’s Burns Library until the death of the participants.

And so the project remained under wraps as planned until two of the interviewees died, and things began to unravel.

After those two deaths, of former IRA man Brendan Hughes and the former UVF member David Ervine, the writer overseeing the interviews – Ed Moloney – published Voices from the Grave, which was the first that the outside world knew of the tapes.

Hughes made allegations about the 1972 IRA murder of the Belfast mother-of-10 Jean McConville (whose body was not found until 2003), including the claim that the now Sinn Fein president Gerry Adams ordered her abduction. This, and an interview by Dolours Price (see timeline), ultimately triggered a PSNI demand for the tapes.

The ensuing transatlantic legal tug-of-war came to be depicted as a conflict between the occasionally competing interests of historians and the forces of law and order. But the historians at Boston College say they were barely involved.

Kevin O’Neill, a professor in the history department, and his colleagues knew nothing about the tapes, which they later concluded was a narrow project run by the Burns librarian Robert O’Neill and Professor Hachey (who did not reply to a request to be interviewed for this article).

Professor O’Neill became aware of the project when he was asked around 2001 by Professor Hachey to give his professional opinion on some interview transcripts.

“That was my only involvement in the programme until 2011,” he tells the News Letter, from his book-lined office in Connolly House. “I didn’t get a response to the memo I wrote.”

The interview content had left him “very concerned”.

“It was clear to me that the interviewer had a political perspective himself and as a historian I was concerned about that.”

Asked if he is referring to Anthony McIntyre, the former IRA prisoner who was critical of Sinn Fein’s concessions in the Good Friday Agreement, Professor O’Neill says: “Yes, but I didn’t know that at the time.”

He was concerned that McIntyre was asking leading questions. He also wanted to know if anyone involved in the interviews had a training in oral history.

“And if not, why not?”

Professor O’Neill’s second chief concern was that it was clear that interviewer and interviewees were “very anti-agreement”.

“I thought we would need another interviewer to interview people in the Adams wing of the republican movement successfully. Then I didn’t know if a loyalist would be involved or not, but I asked that as a question as well, I couldn’t see how this person could interview loyalists successfully.”

He otherwise thought that the interview that he read was “extremely valuable”.

“Most of the focus was on the narrative of how someone becomes part of the republican community, how someone becomes a member of the IRA, the how and the why, the kind of stuff that historians 20 years from now would find really helpful in understanding what happened.”

Professor O’Neill heard nothing more until Moloney’s book came out in 2010.

“I was disturbed by the publication of the book,” he says. “It seemed to me a very strange thing to do, to publish a book that would announce to the whole world that this archive exists.”

Professor O’Neill says that the contract that Boston College signed with Ed Moloney specified that the university would set up an oversight committee to oversee all the project and he was named as a member of this committee. But he was not informed of the committee, and it was never created.

He says that the contract between the College and Moloney included the key proviso that the interviews would be held from public access until the death of the interviewees “to the extent that US law allowed” but this proviso was not in the contracts given to the interviewees.

If it had been, he thinks most people would have said no to being interviewed.

It was, he summarises, “irresponsible [of the College] to give people a contract that you couldn’t deliver on”. He wants them to apologise to the interviewers and interviewees.

He is also upset at the damage that the episode has done to Boston College’s bid to build relationships in Ireland.

They had, he says, tried to make the conflict in Northern Ireland “a bit more complicated than most Irish Americans saw it”. They helped organise and sponsor the first visit of loyalists to the United States, for example.

“I greeted Gusty Spence and David Ervine,” he recalls. An Irish American, from New York originally, Prof O’Neill adds: “You know personally that was quite an amazing moment in my life.”


It was only in May of this year that the Boston College historians made clear their unhappiness at the way the project had been handled, something Professor O’Neill says he was uncomfortable about doing because of the irritation it would be likely to cause in the university hierarchy.

“I’m not a martyr by nature, you know, but we felt strongly enough because of the negative impact of what’s happened on so many people,” he said.

“I can’t imagine what it would be like living in Belfast knowing I had given an interview to Boston College and who knows where it is, who might have access to it, whether it is the police service or other people.”

Professor O’Neill says that the first rumour he had heard about the existence of the tapes was when Ed Moloney came to the college one day and mentioned to a historian colleague that he was working on the project. At a later reception at the Burns Library, Moloney was present and said something similar to Professor O’Neill.

“I had no idea what he was talking about. So that’s the kind of environment that the project was born in.”

Professor O’Neill says he feels “sick” for the misery the saga “has caused people in Belfast … the interviewees mostly”.

But he also says the university cut Moloney and McIntyre loose. “I’m not a friend of either one and probably disagree with them on a lot of things but that’s just not the way you behave. They were working for this university.”

The loss of the material was “very disappointing”.

“To see how ordinary members of an extraordinary phenomena of the IRA or loyalist paramilitary groups, how did they come into that activity, what did they think about it … this is exactly the kind of material that historians really need.

“I think the fact that Boston College was able to get the loyalist community to participate is I think sort of amazing, and then to screw it up, this just makes me sick.”

News Letter Special on BOSTON TAPES: Where are the interviews now?

News Letter Special on BOSTON TAPES: Where are the interviews now?

Ben Lowry
News Letter

The whereabouts of the Boston College tapes is now uncertain, News Letter queries have concluded.

In our interviews with people or organisations who were involved with the so-called Belfast Project, or have since become involved in trying to get access to the material, we have encountered a reluctance to reveal any information as to the latest status of the tapes.

Boston College says the project was “designed to capture the oral histories of individuals who had been directly involved in the Troubles to provide a resource for future generations of journalists, historians and scholars”.

But the tapes ran into difficulty in 2010 after a book was published by Ed Moloney based on two of the interviews, including one by Brendan Hughes, and after a press interview was given by Dolours Price. Hughes and Price both made allegations about the circumstances of the abduction and murder of the Belfast mother-of-10 Jean McConville in 1972.

The following year the PSNI requested the interviews with Hughes and Price. A later request was made by the PSNI for all republican interviews relating to the McConville killing.

The latter request was initially upheld by a US federal court, and Boston College was ordered to hand over 85 interview segments with seven IRA interviewees to the Department of Justice. In a notable victory for the college, this was cut on appeal to 11 segments.

This meant that the great bulk of the 26 interviews with republicans under the project were not ordered to be handed over to the PSNI. Nor were the 14 interviews with loyalists, conducted by Wilson McArthur, handed over.
The 11 segments were handed over to the Department of Justice in September 2013.

The PSNI has since sought all the material. When we asked the PSNI for the latest on this request, they repeated the line that they have given for several months: “Detectives in serious crime branch have initiated steps to obtain all the material from Boston College as part of the Belfast Project. This is in line with PSNI’s statutory duty to investigate fully all matters of serious crime, including murder.”

The college said in May this year that it had received no such request from the Department of Justice and it had offered to return the tapes to interviewees.

When we asked them for the latest position they gave us information including a timeline that said that transfer of the segments in September 2013 followed the end of the legal process.

They reiterated that they had made the following offer to interviewees: “Upon completion of the legal proceedings, Boston College offered to return the tapes to individuals involved.”

The US Justice Department declined to divulge details: “The request was made through a Mutual Legal Assistance Treaty (MLAT), and the Department of Justice considers all MLAT requests in light of the terms of the treaty and applicable US legal standards. As a matter of policy, we generally do not comment on specific requests.”

In our interview yesterday with Professor Kevin O’Neill, a Boston College historian who was not involved in the project and critical of its handling, he said of the interviews’ current whereabouts: “I don’t really know, I mean, I know that the university announced that it would return all the files to interviewees who requested them, but as I’m not informed about anything I don’t know.”

However, Anthony McIntyre, whose interview with the News Letter about the saga can be seen in the link below, said of the tapes: “I know what the position is but it is fraught with dangers.

“I just can’t comment on it.”

News Letter Special on News Letter Special on BOSTON TAPES: Victims speak on saga

News Letter Special on BOSTON TAPES: Victims speak on saga
Ben Lowry
News Letter

IRA victims including members of Jean McConville’s family have spoken about the Boston College tapes saga.

The News Letter has been running a series of articles about the so-called Belfast Project, which interviewed republican and loyalist paramilitaries.

The project ran into crisis when it became known that some IRA interviewees had made allegations about the 1972 murder of the Belfast mother-of-ten Jean McConville.

Helen McKendry, fourth child of McConville, who was out at the shop when her mother was abducted from her flat, said of the tapes: “Anyone who had a family member murdered has a right to know what happened.

“The PSNI have had the tapes for a while. We thought they were going to make proper arrests and bring people to trial.

“Ivor Bell was arrested for aiding and abetting.”

Helen, 57, who is estranged from her siblings, said: “Dolours Price blew the project when she went to the press and Ed Moloney when he wrote the first book.” She added: “Police have the 11 tapes that mentioned my mother but we won’t get to hear what’s on the tapes unless there is a court case, which is what we want. That is why I am taking civil action against Gerry Adams.”

Her brother Michael McConville, now aged 53, was in the flat aged 11 when his mother was seized.

“I remember that night quite well,” he told the News Letter.

Mr McConville rejected the suggestion by Anthony McIntyre, who interviewed the republicans, that the PSNI had approached the family after the existence of the tapes became public knowledge in 2010.

“We wanted a meeting with police,” he said. “It happened about six months after [news of the tapes]. We wanted to know why they never lifted [Price]. They said waiting on other inquiries coming in.”

But Mr McConville declined to be drawn on the Boston College saga overall. “I have a lot of thoughts on the tapes but I don’t want to talk because of the court proceedings.”

Two victims of IRA atrocities gave us their perspective on the tapes.

Aileen Quinton, whose mother Alberta was killed in the 1987 Enniskillen bomb, said: “I understand some terrorists have some expectation their interview would not get released until they die. Even if I wasn’t a victim I would want truth to out and justice to prevail.

“If people have confessed to horrendous crimes in an interview and think that they did so in a safe environment that turns out not to be safe for them, that should be their problem, not mine.

“If there are tapes there, I would like them to be in the hands of people who could make use of them, the criminal justice system.

“If some of the interviewees are feeling stress, and having to look over their shoulder because of what they have admitted to, well at least that is some consequence for their actions.

“If the tapes were destroyed, it would be a lost opportunity for justice.”

Alan McBride, whose wife and father-in-law died in the 1993 Shankill blast, said: “Working with victims you have to feel for them. If there is anything that can help them in their search for truth and justice, that information should be made available.

“That said, if I was wearing my peace-building hat, I do see there is some merit in society for story telling projects to find out why things happened, what was going on in people’s heads when they did the things that they did.

“People will not come forward and tell those stories if they thing they are going to be liable for prosecution.

“So it seems that I am saying two different things and in a sense I am. We need to find a way to get to the truth of what happened.”

News Letter Special on BOSTON TAPES: College says no-one can question project intention

News Letter Special on BOSTON TAPES: College says no-one can question project intention
Ben Lowry
News Letter

The News Letter put Professor Kevin O’Neill’s criticisms (which can be read here) about the tapes saga to Boston College.

Jack Dunn, the university’s director of Public Affairs, said: “The Belfast Project was designed to capture the oral histories of individuals who had been been directly involved in the Troubles to provide a resource for future generations of journalists, historians and scholars.

“Boston College Burns librarian Bob O’Neill and Irish Studies director Tom Hachey hired project director and former Irish journalist Ed Moloney and his interviewer, former IRA member Anthony McIntyre, to oversee the project, with confidentiality always being at the forefront of their concerns and actions.

“In retrospect, the four would likely agree that it was a mistake not to have embargoed the materials for a specified period of 20-30 years. Instead, they agreed in 2000 that the embargo would remain in place only until the death of the participants.

“With the death of Brendan Hughes and David Irvine, project director Ed Moloney pushed for the release of the book and RTE documentary ‘Voices from the Grave’ in 2010. Unfortunately, the release of the book and documentary, coupled with an interview that Dolours Price gave to Irish media in which she implicated herself and Gerry Adams in the abduction of Jean McConville, led the PSNI to invoke the Mutual Legal Assistance Treaty between the United States and Great Britain to subpoena the Price interviews through the US Department of Justice.

“Attorneys for Boston College fought to oppose the subpoena in US Federal Court, but when Ed Moloney gave interviews to US media suggesting that BC ‘destroy the tapes’, the PSNI then sought a second subpoena for all of the IRA interviews that referenced the murder of Jean McConville.

“BC fought the second subpoena and won a significant court victory that reduced the number of transcripts that were ultimately sent to the PSNI from 85 to portions of 11 interviews with seven former IRA members.

“Upon completion of the legal proceedings, Boston College offered to return the tapes to individuals involved.

“As with all projects that attempt to capture controversial historical events, there has been criticism of the Belfast Project that has been directed at all four of the individuals involved, as well as Boston College, the PSNI and the US Department of Justice.

“While, in hindsight, some of the criticism may be warranted, no one can rightfully question the intention of the project, which was to provide a historical archive in support of the movement for peace and reconciliation that emerged in the wake of the Good Friday Agreement of 1998.”

News Letter Special on BOSTON TAPES: Timeline of the project

News Letter Special on BOSTON TAPES: Timeline of the project
Ben Lowry
News Letter

2001-2006: Interviews begin of 26 ex IRA members and 14 ex UVF members.

2010: Upon death of IRA and UVF men Brendan Hughes and David Irvine, Ed Moloney publishes Voices from the Grave, based on their interviews.

February 2010: Dolours Price reveals that she had participated in project, and claims that she and Gerry Adams were connected to Jean McConville abduction. McConville relatives reportedly approach PSNI to get information on the murder.

May 2011: Boston College is issued a subpoena by the US Department of Justice on behalf of PSNI requesting the Price and Hughes interviews. Moloney suggests Boston College destroy the tapes

August 2011: Boston College receives second set of subpoenas requesting all remaining IRA interviews regarding McConville case. Citing protection of academic research and reconciliation in Northern Ireland, College lawyers try to quash the subpoenas

December 2011: US District Court Judge William Young concludes that Price interview directly relevant to McConville probe and orders it be given to Justice dept. Boston College conclude they have no grounds to resist first subpoena

January 2012: Judge Young orders on second subpoena that 85 interviews with seven IRA people be turned over because relevant to the McConville

July 2012: Moloney and McIntyre’s appeal rejected by the US Court of Appeals in Boston. Bid to get before Supreme Court rejected

January 2013: Price found dead in her Malahide home

May 2013: US First Circuit Court of Appeals rules on College’s appeal of the second subpoena. Cuts the order to the release of 11 segments of 85 interviews with seven former IRA members that the District Court had deemed relevant. The 74 other interviews no longer subject to release

July 2013: PSNI detectives travel to US to obtain the Price interviews

September 2013: Appeals Court rejects US Government’s request for rehearing. Boston College transfers the 11 interview segments to Dept of Justice

May 2014: It emerges that the PSNI is now seeking all interviews, not just that relating to the McConville

Dec 2014: College, PSNI, Justice dept silent about how that bid is progressing

The Belfast Project and the Dangers of the Subpoena Power

The Belfast Project and the Dangers of the Subpoena Power
Legal History
Federal Bar Council Quarterly
Sep/Oct/Nov 2014, Vol XXII No 1
By James L. Bernard and Nathan H. Stopper
13 Dec 2014

In 2001, an ambitious project by Boston College (“BC”) to document the oral history of a brutal conflict began. Under the auspices of BC, a librarian, a journalist, and a former Irish Republican Army (“IRA”) paramilitant began interviewing individuals involved in the decades-long conflict in Northern Ireland. In what became known as the Belfast Project (the “Project”), they conducted candid interviews under the cloak of anonymity with 40 former members of the IRA and its rival Protestant paramilitary groups, along with one former law enforcement officer. By all appearances, this was a well-intentioned and noble project to explore in confidence a dark period in history, and to try to discover what lessons could be learned when all involved were able to speak freely and openly about what happened. Things did not turn out as planned. Once authorities in the United Kingdom learned of the Project, they tried to obtain the information that had been shared in confidence. This article explores what happened in the U.S. courts regarding those efforts, and lessons to be learned from the ensuing legal battle.

The Interviews

The interviews were nominally “donations” made by the subjects to BC, and each interviewee signed an “Agreement for Donation” that restricted access to the tapes and transcripts of their interviews until after their deaths, absent the subject’s written consent.1 An additional agreement between the Project’s director, Ed Moloney, and BC provided that “[e]ach interviewee is to be given a contract guaranteeing to the extent American law allows” strict safeguards to prevent the unauthorized disclosure of an interview.2

Notwithstanding these confidentiality agreements, in 2011 BC was served with two sets of subpoenas (the “Belfast Subpoenas”) by a commissioner appointed pursuant to 18 U.S.C. § 35123 and a mutual legal assistance treaty between the United States and the United Kingdom (the “US-UK MLAT”).4 The first subpoena sought materials from the interviews of former IRA members Dolours Price and Brendan Hughes, while the second requested all information obtained by the Project regarding the abduction and murder of Jean McConville, a mother of 10 “disappeared” by the IRA in 1972. With the exception of the materials related to Mr. Hughes,5 BC sought to have both subpoenas quashed in the U.S. District Court for the District of Massachusetts.

Mr. Moloney and the former IRA paramilitant, Anthony McIntyre, attempted to intervene in the lawsuit filed by BC, and separately filed a similar civil complaint seeking to block the production of these materials. The court, however, ordered the production of all materials responsive to the first subpoena and 85 interviews responsive to the second.6 While BC did not appeal the order regarding the first subpoena, Messrs. Moloney and McIntyre appealed to the First Circuit.7 The circuit court affirmed the district court’s decision and ordered the production of materials from the interviews of Ms. Price, “who had admitted to being involved in the murder and ‘disappearances’ of four persons targeted by the IRA, including Jean McConville.”8 BC subsequently filed an appeal regarding the second subpoena, and the First Circuit overturned the denial of the motion to quash as to 74 of the 85 interviews, finding that they were not responsive to the subpoena.9 Thus, after two separate appeals, BC was ordered to produce both Ms. Price’s interview materials and the materials from 11 interviews relevant to Ms. McConville’s “disappearance.”10

The production of even these materials had profound consequences as they led to the recent arrest of Gerry Adams, the president of Sinn Féin and a current member of the Irish Parliament. We explore further below both the scope of subpoena power as relevant to this proceeding and the accompanying statutory protections, as well as additional defenses with particular relevance to the Project: the reporter and academic privilege, and the self-critical analysis privilege.

The Power to Quash

Although the Federal Rules of Civil Procedure grant parties broad subpoena power, they also impose certain limitations. Among such limitations, a court “must quash or modify a subpoena that requires disclosure of privileged or other protected matter, if no exception or waiver applies.”11 However, “the mere fact that a communication was made in express confidence … does not create a privilege.”12

Because the Belfast Subpoenas were issued under 18 U.S.C. § 3512 and the US-UK MLAT, a major threshold issue was whether, because the applicable treaty gives the Attorney General “exclusive prerogative in initiating proceedings[,] federal courts have discretion to quash a subpoena in this context.”13 While the government argued that “the Attorney General’s exclusive prerogative … [barred] judicial oversight of the subpoena enforcement process,” the First Circuit held that it had jurisdiction because “the enforcement of subpoenas is an inherent judicial function which … cannot be constitutionally divested from the courts of the United States.”14 Thus, resolution of the appeals turned on whether the appellants were able to assert a recognized privilege.

The Reporter’s Privilege

The primary substantive issue raised in the Belfast Project litigation was the protection afforded by the First Amendment to academics.15 Because such protection closely mirrors the protection enjoyed by reporters, a review of the reporter’s privilege is helpful.

The seminal case addressing this privilege is the Supreme Court’s decision in Branzburg v. Hayes, a plurality opinion unevenly interpreted by the circuits. There, and briefly summarized, the Court held that even where revealing materials sought by a grand jury subpoena would break a reporter’s promise of confidentiality, the First Amendment does not protect the reporter from having to comply with the subpoena.16 Taking particular offense to the suggestion that the Constitution protected promises made to criminals that could undermine law enforcement, the Court reasoned that “we cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it.”17

Despite the Supreme Court’s reluctance to recognize such a privilege, subsequent decisions in lower courts have approved of some protections for subpoenaed reporters when the facts are distinguishable from Branzburg, especially in the context of civil litigation.18 Building on Justice Powell’s Branzburg concurrence, courts have held that “a qualified reporter’s privilege under the First Amendment should be readily available in civil cases,” and that to determine whether the privilege applies, courts should weigh “the public interest in protecting the reporter’s sources against the private interest in compelling disclosure.”19 Other courts have gone beyond the civil context, stating that there is “no legally-principled reason for drawing a distinction between civil and criminal cases when considering whether the reporter’s interest in confidentiality should yield to the moving party’s need for probative evidence.”20

Importantly for the Belfast Project litigation, the First Circuit has held that the Constitution offers some protection for reporters’ confidential sources.21 In In re Special Proceedings, it held that “the disclosure of a reporter’s confidential sources may not be compelled unless directly relevant to a nonfrivolous claim or inquiry undertaken in good faith; and disclosure may be denied where the same information is readily available from a less sensitive source.”22 The First Circuit therefore requires “heightened sensitivity” to First Amendment concerns in civil litigation.23

The existence of a reporter’s privilege, even when limited to civil litigation, is not unanimously accepted. The Seventh Circuit has held that while “[a] large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege … courts should simply make sure that a subpoena duces tecum directed to the media, like any other subpoena duces tecum, is reasonable in the circumstances, which is the general criterion for judicial review of subpoenas.”24 Similarly, the Sixth Circuit has held that Justice Powell’s Branzburg concurrence is consistent with the majority opinion and creates no qualified privilege for the media.

Thus, while reporters in federal litigation may enjoy some protection for withholding subpoenaed information, such protection requires a favorable outcome of a balancing test whose existence and application diverge widely by circuit.25

The Academic Research Privilege

One of the primary concerns of the Branzburg plurality was that, because “almost any author could assert that he contributes to the flow of information to the public,” recognizing a reporter’s privilege for protecting confidential sources would force courts to define the scope of those covered by such a privilege, including whether it extended to academics.26 The Supreme Court subsequently declined to recognize an academic privilege in University of Pennsylvania v. E.E.O.C., an employment discrimination case, where it held that the First Amendment’s protection of academic freedom did not permit educational institutions to withhold subpoenaed confidential peer review materials relating to the tenure process.27

Nonetheless, as many courts recognized some form of a reporter’s privilege, they have also defined its scope to include academia. In one of the early cases addressing the coverage afforded by the journalist’s privilege, the Second Circuit held in von Bulow by Auersperg v. von Bulow that an individual claiming the privilege “must demonstrate … the intent to use material sought to disseminate information to the public,” but need not necessarily be a traditional journalist.28 Citing von Bulow, among other cases, the First Circuit endorsed the reach of a privilege beyond journalists in Cusumano v. Microsoft Corp., where it noted that “several of our sister circuits have held that the medium an individual uses to provide his investigative reporting to the public does not make a dispositive difference in the degree of protection accorded to his work.”29 The Cusumano court then held that “[a]cademicians engaged in pre-publication research should be accorded protection commensurate to that which the law provides for journalists.”30

Despite the First Circuit’s recognition of this academic privilege, the courts in both Belfast Project appeals held that because the litigation involved underlying criminal proceedings, Branzburg’s analysis controlled their disposition.31 Thus, in the first appeal, the First Circuit held that even though compliance with the subpoenas could have some chilling effect, no academic privilege applied because Branzburg compelled the conclusion that the “choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers.”32 Similarly, in the second appeal, where BC argued that a heightened sensitivity standard of relevancy should have applied, the court held that under Branzburg, “the public’s need for information relevant to a bona fide criminal investigation precludes the recognition of a First Amendment privilege not available to the ordinary citizen,” and ordered the production of all relevant materials.33 The First Circuit was clear that “[t]he choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers.”34

The Self-Critical Analysis Doctrine

An additional, although more tenuous, argument for contesting the Belfast Subpoenas would have been the much-maligned self-critical analysis doctrine. Although frequently cited by parties seeking to protect information, “a majority of the Circuits have refused to recognize or apply the privilege.”35 Originally described in Bredice v. Doctors Hospital,36 the privilege’s contours are generally agreed upon: first, “the information [at issue] must result from a critical self-analysis undertaken by the party seeking protection; [second] the public must have a strong interest in preserving the free flow of the type of information sought; [and third] the information must be of the type whose flow would be curtailed if discovery were allowed.”37 Courts have also applied “the general proviso that no document will be accorded a privilege unless it was prepared with the expectation that it would be kept confidential, and has in fact been kept confidential.”38

In Bredice, a plaintiff in a medical malpractice suit sought to discover information from a hospital’s professional staff committee meetings. The court held that because the meetings were “not a part of current patient care, but [were] retrospective with the purpose of self-improvement, [they were entitled] to a qualified privilege on the basis of this overwhelming public interest.”39 The court further elaborated that “the public interest may be a reason for not permitting inquiry into particular matters by discovery,” and was especially concerned that the committee’s value would be destroyed if its proceedings were discoverable.40

Courts have subsequently been skeptical of the self-critical analysis privilege, but have frequently refrained from disavowing it, instead finding that specific facts in a particular litigation preclude its application. In Dowling, for example, the Ninth Circuit held that even if the privilege existed, pre-accident safety reviews conducted on a ship were not subject to it because holding such reviews discoverable would not create a “chilling effect” on the candid assessment of safety issues.41 Likewise, in In re Currency Conversion Fee, the court held that while “the availability of the self-critical analysis privilege is an open question in [the Second] Circuit,” it did not protect management control studies and internal audit reports.42 In Ganious v. Apache Clearwater Operations, Inc., however, the court disclaimed the privilege more explicitly, stating that “all of the courts in [the Fifth] Circuit confronting the issue have declined to find that the self-critical analysis privilege exists, even in the instance of a post-accident investigation.”43

Although not cited by the parties at any stage of the Belfast Project litigation, the Project satisfied some of the privilege’s elements. The interviews were certainly undertaken with the expectation of confidentiality, and the flow of sensitive information would undoubtedly cease if the subjects knew they were discoverable. Further, the public may have had an interest in the continuation of the Project, although likely not rising to the level of the hospital meetings at issue in Berdice. Most importantly, however, the interviews were not conducted for the express purpose of self-improvement, and lacking such a purpose, the privilege would most likely not have applied.


Individuals must proceed with caution when gathering information pursuant to confidentiality agreements. We imagine that everyone involved in the Belfast Project thought the contractual provisions of confidentiality were sufficient. The stakes, after all, were extremely high as individuals would be discussing criminal conduct, and therefore the interviews would not have taken place unless all involved believed those provisions would provide adequate protection. The lesson learned here, however, is that contractual obligations of confidentiality are sometimes insufficient. And here, that vulnerability came from abroad, in the form of a subpoena through a U.S. Commissioner providing assistance in a criminal matter to a foreign government. Imposing the benefit of hindsight on those involved seems harsh; it is hard to blame them for failing to assess the likelihood that a U.S. Commissioner would be appointed to assist a foreign government in a criminal investigation. But after this litigation, it seems clear that even assuming the First Amendment offers some protection to academics (or reporters), information gathered under contractual provisions of confidentiality will nonetheless be highly vulnerable to subpoena, especially for law enforcement purposes. BC learned this lesson the hard way: it recently announced that it will return the original recordings from the Belfast Project to any interviewee who requests them and will not preserve any additional copies or transcripts.44 That is a shame for the pursuit of academic research projects and good faith efforts to explore dark moments in history with candor, but the First Circuit’s decisions make clear that contractual promises of confidentiality must yield to law enforcement requests for information.




  1. In re Request from United Kingdom Pursuant to Treaty Between Gov’t of U.S. & Gov’t of United Kingdom on Mut. Assistance in Criminal Matters in the Matter of Dolours Price, 685 F.3d 1, 5 (1st Cir. 2012) [hereinafter “Moloney”], cert. denied, 133 S. Ct. 1796 (2013).
  2. Id. Importantly, “[n]o lawyers vetted the wording of [the underlying agreement for participants], and no one at BC other than [the head librarian and the head of Irish Programs at BC] reviewed Mr. Moloney’s contract or the one drawn up for interviewees.” Beth McMurtrie, Secrets From Belfast, The Chronicle of Higher Education, Jan. 26, 2014, at 4, available at
  3. Section 3512 permits the government to seek court orders and the appointment of a commissioner to collect evidence to effectuate a request from a foreign government for assistance in the investigation or prosecution of criminal matters.
  4. Moloney. 685 F.3d at 3.
  5. Because Mr. Hughes was deceased, as per his Agreement for Donation, BC was no longer bound by any contractual confidentiality obligations regarding his interviews.
  6. In re Request from the United Kingdom Pursuant to the Treaty Between the Gov’t of the U.S. & the Gov’t of the United Kingdom on Mut. Assistance in Criminal Matters in the Matter of Dolours Price, MISC. 11-91078-WGY, 2012 WL 194432 (D. Mass. Jan. 20, 2012).
  7. See Moloney, 685 F.3d at 4.
  8. Id. at 5.
  9. Id. at 19; In re Request from the United Kingdom Pursuant to the Treaty between the Gov’t of the U.S. & the Gov’t of the United Kingdom on Mut. Assistance in Criminal Matters in the Matter of Dolours Price, 718 F.3d 13, 27 (1st Cir. 2013) [hereinafter “Boston College”].
  10. See id.; Moloney, 685 F.3d at 4.
  11. Id. 45(d)(3)(A)(iii).
  12. Branzburg v. Hayes, 408 U.S. 665, 682 n.21 (1972).
  13. Boston College, 718 F.3d at 23.
  14. Id.
  15. See Moloney, 685 F.3d at 16; Boston College, 718 F.3d at 20.
  16. 408 U.S. at 690-91; see also Moloney, 685 F.3d at 16.
  17. Branzburg, 408 U.S. at 690-91.
  18. See Zerilli v. Smith, 656 F.2d 705, 712 (D.C. Cir. 1981) (stating that “every other circuit that has considered the question has ruled that a [reporter’s] privilege should be readily available in civil cases, and that a balancing approach should be applied”). See also, e.g., In re Grand Jury Proceedings, 5 F.3d 397, 400 (9th Cir. 1993) (holding that no privilege applied when the “circumstances of the case fall squarely within those of Branzburg”).
  19. See, e.g., Grand Jury Proceedings, 5 F.3d at 400.
  20. United States v. Burke, 700 F.2d 70, 76-77 (2d Cir. 1983). See also, e.g., United States v. Cuthbertson, 630 F.2d 139, 146-47 (3rd Cir. 1980).
  21. Cusumano v. Microsoft Corp., 162 F.3d 708, 716 (1st Cir. 1998); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 596 (1st Cir. 1980).
  22. In re Special Proceedings, 373 F.3d 37, 45 (1st Cir. 2004).
  23. Id.
  24. McKevitt v. Pallasch, 339 F.3d 530, 532-33 (7th Cir. 2003). See also In re Grand Jury Proceedings, 810 F.2d 580, 583-84 (6th Cir. 1987) (rejecting the existence of a reporter’s privilege).
  25. As of 2011, 40 states had enacted laws protecting reporters from subpoenas. See Aaron Mackey, Number of states with shield law climbs to 40, 35 The News Media & the Law 3, 27 (Summer 2011), available at However, the federal law of privilege applies in federal cases involving state law claims. See, e.g., Virmani v. Novant Health Inc., 259 F.3d 284, 287 n.3 (4th Cir. 2001).
  26. Branzburg, 408 U.S. at 703.
  27. 493 U.S. 182 , 199-200. This case is distinguishable from Branzburg and the Belfast Project litigation for at least two important reasons: first, Univ. of Penn. was reluctant to recognize a privilege where Congress had extended the relevant statute to educational institutions and provided for broad subpoena powers, but chose not to create a privilege for peer reviewed documents; and second, Univ. of Penn. found that the asserted infringement of First Amendment rights was “extremely attenuated,” because it relied upon a long chain of causation to claim that disclosure affected academic freedom. Id. at 189, 199-200.
  28. 811 F.2d 136, 147 (2d Cir. 1987) (“On rare occasions the journalist’s privilege has been invoked successfully by persons who are not journalists in the traditional sense of that term”).
  29. 162 F.3d at 714.
  30. Id.
  31. Moloney, 685 F.3d at 16; Boston College, 718 F.3d at 24.
  32. Moloney, 685 F.3d at 19.
  33. Boston College, 718 F.3d at 24.
  34. Moloney, 685 F.3d at 19.
  35. Davis v. Kraft Foods N. Am., CIV A 03-6060, 2006 WL 3486461, at *2 (E.D. Pa. Dec. 1, 2006).
  36. 50 F.R.D. 249 (D. D.C. 1970).
  37. Dowling v. Am. Hawaii Cruises, Inc., 971 F.2d 423, 426 (9th Cir. 1992) (citing Note, The Privilege of Self–Critical Analysis, 96 Harv. L. Rev. 1083, 1086 (1983)).
  38. Dowling, 971 F.2d at 426 (citing Peterson v. Chesapeake & Ohio Ry., 112 F.R.D. 360, 363 (W.D. Mich. 1986); Westmoreland v. CBS, Inc., 97 F.R.D. 703, 706 (S.D.N.Y. 1983)).
  39. Bredice, 50 F.R.D. at 251.
  40. Id.
  41. Dowling, 971 F.2d at 426.
  42. In re Currency Conversion Fee, MDL 1409, 2003 WL 22389169, at *4 (S.D.N.Y. Oct. 21, 2003). But see Trezza v. Hartford, Inc., 98 CIV. 2205 (MBMKNF), 1999 WL 511673, at *3 (S.D.N.Y. July 20, 1999) (holding that self-critical analysis privilege protected voluntary internal studies regarding employment discrimination).
  43. CRIM.A. 98-207, 2004 WL 287366, at *2 (E.D. La. Feb. 11, 2004).
  44. Peter Schworm, BC will return its interviews on Ireland, The Boston Globe, May 6, 2014, available at

Storey arrest ‘based on information given to oral history project’

Storey arrest ‘based on information given to oral history project’
Irish News

It was like listening to Walter Mitty and Billy Liar being interviewed by Lord Haw Haw — Bobby Storey

BOBBY Storey has described his arrest in connection with the disappearance of Jean McConville as “politically motivated’ and said it was based on information given to the Boston College project.

The senior republican and northern chairman of Sinn Féin was arrested last week and questioned for several hours in connection with the 1972 abduction, murder and secret burial of the west Belfast mother of 10.

The 58-year-old, who would have been 16 at the time of Mrs McConville’s abduction. said he was questioned solely about information contained in interviews made by former IRA men as part of an oral history project.

He also claimed his arrest, and that of other senior republicans, including party leader Gerry Adams, was aimed at stunting “the rapid growth of Sinn Féin”.

In an interview with the Belfast Media Group the former IRA prisoner, who was released under the terms of the Good Friday Agreement, said he was “innocent of any involvement” in the disappearance of the west Belfast woman.

“There is absolutely no need to use coercive legislation to deal with legacy issues but someone clearly wanted a headline-grabbing arrest,” he said.

However, he added “despite my arrest, we (Sinn Féin) will not allow old agendas to get in the way of progress.

“I will continue to support efforts to make the PSNI accountable”.

The senior Sinn Féin member said he was read transcripts of the Boston College tapes by detectives in Antrim who told him the names of the interviewees.

The interviews were carried out by former IRA man Anthon McIntyre as part of a project directed by journalist Ed Moloney.

While the former IRA members interviewed were given assurances that the recordings would be kept secret until after their deaths, a number of tapes were handed over to the PSNI following a legal battle in the USA.

Mr Storey, who was part of an IRA gang who escaped from the Maze in 1983, said having heard transcripts of the interviews he “understood” while those involved were keen to keep the project secret.

“They are shameful if not a bit pathetic… they are full of contempt, anger and vitriol.

“It was like listening to Walter Mitty and Billy Liar being interviewed by Lord Haw Haw. It all sounded like self inflated, ego tripping, propagandising rants.

“A typical question was like a mini speech with a question mark at the end of it. In everything they read out to me the question was four or five
times longer than the answer,” he added.

To date nine people — four men and five women — have been questioned in connection with the historic investigation into the murder of Mrs McConville.

One man Ivor Bell (77) has been charged with IRA membership and aiding and abetting the murder.

Boston Tapes Read to Storey

QUESTIONED: Bobby Storey is scathing about the tapes’ contents

Content ‘shameful and pathetic’ says SF chair
It was like listening to Walter Mitty and Billy Liar being interviewed by Lord Haw Haw. It all sounded like self inflated ego-tripping, propagandising rants.” Bobby Storey

Andersonstown News
Saturday Edition, 6 December 2014 (published 4 December 2014)

EXTRACTS from the controversial Boston College tapes formed the basis of the interrogation of the leading Belfast republican Bobby Storey After his arrest last Thursday.

The Sinn Féin six county chair was questioned for several hours in Antrim Serious Crime Suite about an IRA investigation into the whereabouts of Divis mother- of-ten Jean McConville, who was abducted and shot dead by the IRA in 1972 before being secretly buried. Her remains were found in 2003.

The tapes were recorded as part of the now discredited Boston College Belfast Project in which conflict protagonists gave interviews on the understanding that they would not be made public until after their deaths.

Despite this, the tapes were handed over to the PSNI after a US court battle. Some interviewees say they now plan to sue Boston College.

Speaking to the Andersonstown News this week, Mr Storey said his arrest was politically motivated and followed a pattern which has seen the recent arrest of several senior republicans. He added that the arrests are an attempt to “thwart the rapid growth of Sinn Féin”.

“When the PSNI arrived at my home they said, ‘You’re under arrest as part of the investigation into the murder of Jean McConville.’ I replied,

‘Jean McConville? Seriously?’ such was the ridiculousness of it to me. The cop looked awkward. I said to my partner before I left, ‘This is the politics of the day, I’m arrested because I’m the chair of Sinn Féin in the six counties. This is about the party, not me.

‘Let me be very clear, I am innocent of any involvement in the conspiracy to investigate, abduct, kill or bury Mrs McConville. ”

The former IRA prisoner said his arrest could have been handed differently.

“There is absolutely no need to use coercive legislation to deal with legacy issues but someone clearly wanted a headline- grabbing arrest. There are two standards operating here. No British soldiers or RUC officers involved in killings, conspiracies or collusion are subject to the same treatment. But the nationalist community is not fooled by all this. The amount of support I’ve received since last week is phenomenal. I see that as a clear sign that people know well this is not about the tragedy around Mrs McConville. This is about assailing Sinn Féin.”

‘Boston tapes questions longer than answers’

“Our communities have watched on as the British government reneged on its commitment to hold an inquiry into the murder of Pat Finucane, refuses a Hillsborough-type inquiry into the Ballymurphy Massacre and continues to cover up the role of the British state in collusion and killings.

“It all emphasises the need to deal with the past, not cynically exploit it. This is why we need a proper process such as that proposed by Richard Haass and Meaghan O’Sullivan.

“I want to also make it clear that, despite my arrest, we will not allow old agendas to get in the way of progress.

I will continue to support the efforts to make the PSNI accountable. Obviously this is work in progress, but I’m determined to work with others to build a genuinely civic policing service.”

Mr Storey said his questioning ran the gamut “from comedy to farce”.

“It was an almost surreal scenario where a very tragic situation was being used, in my firm opinion, as part of a political demonisation agenda against members of the Sinn Fein leadership,” he said. “I was presented with this following picture, which is becoming a recognised concoction against republicans in recent times.

“Person ‘A’ requests to meet the IRA. The IRA allegedly agrees to meet them to assist them. The meeting then allegedly takes place. Person ‘A’ subsequently goes to police to tell them about the supposed meeting. Person ‘A’ then wants the people they say they met charged with membership. So Person ‘A’ created and shapes the whole scene, then wants to use it to condemn who they say they met. This is the third such similar case in recent times.

“I was questioned on allegations from the infamous Boston tapes. Police told me the names of the interviewer on the tapes and the interviewees and the information that they provided on army volunteers, meetings, units, structures and operations, naming individuals and events.

“The tapes that were read out to me were read out in full – who said what. The PSNI told me these tapes were made in the belief they would not be released until after the interviewee’s death. It’s only when you listen to them that you appreciate why that proviso would be in there.

They are shameful, if not a bit pathetic.

“What strikes one upon listening to them is they are full of contempt, anger and vitriol. It’s also clear to me, listening to them, that truth is a casualty, as the interviewer and interviewee throw flowers at themselves as they demonise and ridicule everyone they regard as a political enemy.

“It was like listening to Walter Mitty and Billy Liar being interviewed by Lord Haw Haw. It all sounded like self-inflated ego-tripping, propagandising rants.

“The interviewer set the context and tone, and each question was leading by nature. A typical question was like a mini-speech with a question mark at the end. In everything they read out to me the question was four to five times longer than the answer. The answer was like an acceptance with the context of the question.”

Mr Storey says that despite his arrest Sinn Féin will “work flat-out making policing accountable”.

“We promote good civil policing in society and we condemn bad policing,” he said. “We need to get beyond the old agendas, this is policing at its poorest.

“We’ve had the party president arrested earlier this year and two councillors in the past few days, as well as myself. I would say most people would see it as politics.

“This is all going on at a time when two things are happening. There is a rapid growth in Sinn Féin and we are at our strongest since 1918. Our political opponents thought we had peaked at almost half a million votes in the European elections north and south. However, polls are indicating that our vision of a modern Irish republic based on equality continues to click with people.

“Secondly, we in Sinn Féin are the subject of the biggest demonisation campaign ever and it’s right across the island. Both these things are connected as our political opponents fear our vision.”