BC and the Belfast Project: A Scholar’s Privilege to Disobey

BC and the Belfast Project: A Scholar’s Privilege to Disobey
Harvey Silverglate
Forbes
23 July 2012

Much ink has been spilled, but little insight exhibited, in the ongoing imbroglio stemming from Boston College’s, the news media’s and the federal courts’ failure to accord robust First Amendment protection to oral history scholars who have recorded their interviews of participants in the Irish “Troubles” and who thereby seek to preserve for posterity nothing less than the lessons of war and peace. Now, a federal appeals court in Boston has issued an opinion that holds that the interview recordings and transcripts compiled by scholars and housed in BC’s library under a seal of confidentiality for the lifetime of each interviewee must be turned over to the Department of Justice for transmission to the Northern Irish investigative authorities. This is a profoundly reckless and short-sighted ruling, the consequences of which are likely to roil a broad range of scholarly, as well as journalistic activities.

To recap: Beginning in early 2001, journalist-scholar Edward Moloney and fellow researcher Anthony McIntyre, a former IRA member with a doctorate in the history of Irish Republicanism, entered into an agreement with Boston College stipulating that BC would employ them in the creation of the Belfast Oral History Project, an oral history of the bloody battles between the Provisional Irish Republican Army and the Northern Ireland Loyalist paramilitary forces that produced decades of some of the bloodiest sectarian violence in recent history. With the subsiding of that violence and the achievement of a historic peace (a work still in progress, however, and onewith remaining open wounds), Moloney and McIntyre saw an important opportunity for the preservation of the memory of that conflict through BC’s promise to sponsor the collection and housing of the raw materials of the oral history research the scholars would conduct.

In a formal written contract, BC and the scholars agreed that the recordings generated by the scholars’ interviews of participants would be heldconfidentially in BC’s John J. Burns Library. Each interview would beavailable for inspection only upon the death of the interviewee. This agreement required the scholars to give each interviewee his own separate contract “guaranteeing to the extent American law allows the conditions of the interview and the conditions of its deposit at the Burns Library, including terms of an embargo period…” (emphasis added). Part of the problem that emerged later was that the subsidiary contract that BC’s lawyers drew up for the scholars to enter into with the individual interviewees did not make any such exception based on what US law allow. The scholars instead had given the interviewees, perhaps naively in light of BC’s drafting oversight and self-imposed institutional limitations, unequivocal assurances of confidentiality.

Those assurances became the center of controversy in May and August of 2011, when the Department of Justice served BC with court-issued subpoenas for materials generated by the Belfast Project regarding the 1972 murder of suspected informant Jean McConville, which had been formally requested by Northern Irish law enforcement authorities under the United States-United Kingdom Mutual Legal Assistance Treaty. BC responded to the subpoenas by turning over transcripts of the interviews to U.S. District Judge William Young for in camera review – in other words, a private review in his chambers, in which Judge Young would decide which documents were responsive to the subpoena and whether any of them might be protected by a First Amendment “scholar’s privilege” akin to that more familiarly accorded to, or at least claimed by, news reporters.

This case raises profound questions of whether American constitutional law will honor, to at least some degree, the right of scholars, like that of newsmen, to conduct sensitive research outside of the reach of governmental investigative and prosecutorial authorities. Yet the academy and the news media generally have been inexplicably remiss in coming to the support of the Boston College scholars, and even BC has been lukewarm in supporting them. The American Civil Liberties Union of Massachusetts (ACLUM) filed a friend-of-the-court brief supporting the scholars, pointing out to the U.S. Court of Appeals in Boston the importance of the First Amendment privilege at issue not only for scholars, but for newspaper reporters as well. Yet “Injustice Department” has been almost alone in the general readership news media inpointing out the damage that would be done to oral history, an important genre of scholarly research, if the assurances of confidentiality extended by the scholars to their interview subjects are not honored by the courts.

The BC scholars, if they had had the benefit of hindsight, likely would have trusted no one but themselves to house and protect their tapes and transcripts, but there was simply no way they could have anticipated how the litigation challenging the subpoenas would have unfolded. How could they have known that BC would not even bother to challenge the first subpoena seeking materials “in the matter of Dolours Price,” a confessed former IRA member suspected of involvement in the McConville murder? Or that when BC finally challenged the second subpoena that sought an even longer list of materials, its lawyers would commence their challenge by turning over the materials to the federal district court judge so that he could examine them in camera  in order to determine which ones fell within the request of the Northern Irish authorities?

BC’s turn-over of the materials might seem to have been merely an expedient courtesy extended by BC’s lawyers to the judge – after all, if he examined the transcript in the comfort and convenience of his chambers and found none of the materials responsive to the subpoenas, the case would have ended quickly in BC’s favor. In reality, immediately turning over the transcripts doomed the scholars from the get-go. When the judge found that at least some of the materials were covered by the subpoena (as he was predictably going to do, given the terms of the subpoenas and the subject matter of the interviews), and when his turn-over order was affirmed on appeal – as finally happened on July 6 – the scholars had no opportunity to take more radical action to protect the confidentiality of their interviewees. They could not, in other words, make a conscientious decision to commit an act of civil disobedience by refusing to obey the court order to turn over the tapes. The court already had possession of the contested materials, making a sham of the scholars’ absolute assurances to their interview subjects that they would keep the tapes absolutely confidential until the death of each interviewee.

Nobody realistically expected that Boston College, as an institution, would engage in civil disobedience in order to avoid turning over the scholarly materials to the court if, after litigation through an appeal, it was ultimately ordered to do so. Institutions such as colleges and universities, unlike individuals, have little leeway in disobeying a court order, whether on grounds of conscience or for any other reason. A judge, after all, has the power to impose rapidly escalating fines that could bankrupt even the wealthiest organization; the trustees of most institutions would in almost every situation conclude that fiduciary duty precludes letting the organization collapse merely because some principle is at stake. This is why organizations rarely should be trusted with the possession of absolutely confidential materials that might be subject to subpoena by governmental authorities. (The individual, it is acomfort to some of us to know, can still accomplish things that even the largest organizations cannot or will not risk.)

Indeed, as Chris Bray, a UCLA doctoral candidate in history who has been closely watching the Boston proceedings, told The Chronicle of Higher Education, “Academic freedom exists to the extent that you are willing to pay a price for it,” adding a challenge that BC obviously chose not to take up: “Journalists are willing to go to jail to protect sources. What will Boston College do?” The answer to Bray’s question is that BC had effectively limited its options from the day that it turned over the materials to Judge Young. From that point on, it did not have the option of engaging in an act of civil disobedience even if it chose to risk the institution’s endowment in doing so. Worse yet, BC’s action deprived the scholars of the opportunity to take possession of the Belfast Project materials and refuse, as a matter of principle, to relinquish them to federal authorities.

And therein lies the most profound lesson of this case: If documents are truly sensitive – if, for example, premature disclosure of interview tapes could well result in violence being wreaked against both interviewee and interviewer – it is better that an academic institution not agree to exert control over them. That should be left to individuals willing to risk the consequences of adhering to conscience.

Journalists and scholars alike have chosen imprisonment rather than a betrayal of those who spoke to them under a promise of confidentiality. Perhaps the most prominent example in recent years is the case of Judith Miller, then a reporter for the New York Times. During the grand jury investigation into the leaking of CIA operative Valerie Plame’s covert identity, Miller was alleged to have knowledge of the source of the leak of Plame’s undercover status. Instead of revealing the name of her source or turning over her notes to prosecutors, she refused to cooperate with the investigation and was held in contempt of court, ultimately spending three months behind bars until her source, I. Lewis “Scooter” Libby, gave Miller permission to disclose his identity. At the time, Times executive editor Bill Keller described Miller’s actions as a “brave and principled choice.”

The same courage exhibited by newspaper reporters who have been denied protection under the legally controversial “reporter’s privilege” has been demonstrated by some academics relying on the similarly amorphous “scholar’s privilege.” Rik Scarce, at the time a doctoral student at Washington State University, chose to spend five months in jail for federal contempt-of-court rather than betray “earth liberation” activists who had agreed to be interviewed by him pursuant to a promise of confidentiality. Scarce, who is now a sociology professor at Skidmore College, told the Chronicle of Higher Education this past February that when a researcher promises confidentiality to those who agree to answer a scholar’s questions, “You stand by those statements.”

“What you don’t do,” continued Professor Scarce, is “what Boston College appears to be doing.” Professor Scarce pointed out the obvious: Unless the confidentiality of research interviewees is honored, their willingness to participate will dry up, whether they are involved in the radical environmental movement or a violent sectarian struggle such as that which convulsed Ireland. (And, in a turn of events instructive to the BC case: when the coercive jailing of Scarce did not loosen his mouth, the judge gave up and released him.)

Of course, structural differences between the publisher-journalist relationship and the university-scholar relationship may explain – though not justify – BC’s behavior. The reason Bill Keller could tout his praise of Judith Miller’s integrity and fortitude in front of a bank of microphones and not from his own jail cell is because the Times followed its shrewd practice of requiring its reporters to maintain possession of their own notes. Had Miller’s notes been held by the Times itself, prosecutors could have jailed the editors and publishers for contempt of court, or, worse, they could have used the aforementioned “tool” of sharply escalating fines to confront the corporate entity with a choice of either bankruptcy or capitulation. This distinction between an individual’s ability to withstand a court’s coercive contempt powers and the pliability of an institution such as a newspaper or a university that can be bankrupted and effectively put out of existence points to a fundamental flaw in the arrangement between BC and the scholars: the scholars promised their sources absolute confidentiality (after all, the physical safety of both interviewer and interviewee was at stake) and were willing to entertain the option of civil disobedience in order to honor the agreement, whereas BC promised its scholars confidentiality within the confines of the law and could therefore refuse to draw lines in the sand in the event the lawmen came calling. And indeed, when the call did come, it became clear that the Belfast Project’s materials should not have been entrusted to those who had made the weaker pledge.

The all-too-expected result of BC’s immediate and unquestioning turnover of the materials is that Judge Young and the three-judge panel of the Court of Appeals affirming his decision rather blithely failed in their judicial duty to weigh properly the needs and interests of the UK investigators versus those of the scholars. It was much easier for the courts to simply turn over the materials than to make a searching inquiry into, and analysis of, the balancing of legal, scholarly, and law enforcement interests involved. Without questioning either Moloney or McIntyre, Judge Young naively took at face value the word of the Northern Irish prosecutors and of the Department of Justice that the materials were essential to a murder investigation being conducted in good faith and that the scholars’ work product was essential to that investigation. The courts did not question in detail the Northern Irish authorities, nor their American proxies at the Department of Justice, as to whether a good faith basis existed for the criminal investigators’ extraordinary step of seeking to force scholars to turn over work-product that had been gathered on the basis of a scholar’s sacred oath of confidentiality.

Thus, there was no balancing of the rights of the BC scholars, nor of their interview subjects, versus those of the police. There was no consideration given to the problems created by forcing a major academic institution to abandon the interests of its scholars. The federal courts in Boston simply plowed ahead, rashly ordering the turnover to the Northern Irish authorities of the work-product brought into existence only because of a pledge, by the scholars, of absolute confidentiality – a pledge rendered moot the moment BC’s lawyers turned the transcripts over to the judge for inspection. Now, with lives at stake and the courts blind to a proper balancing of interests, it is clear that that first error could not have been graver.

(Zachary Bloom provided research and editorial assistance for this article.)

 

McConville Case Still Resonates Within Northern Ireland

McConville Case Still Resonates Within Northern Ireland
Conor Forrest
Irish News Review
21 July 2012

An interesting showdown, with potentially important ramifications for both journalism and academia, has been slowly unfolding over the course of several months, involving a journalist in the middle, paramilitary soldiers seeking to tell the truth on one side and the PSNI and the families of the so-called ‘disappeared’ on the other.

The controversy circles an academic historical endeavour known as the ‘Belfast Project’, conducted by Boston College, whose aim is to create an oral history of the Troubles in Northern Ireland, a history which would offer a much more frank and realistic view of the conflict, from both sides of the coin. Paramilitary volunteers from either side were interviewed for the large scale project. None of the Republican interviews, however, were authorised by the IRA. In fact, the only reason they were given by the participants was on the condition that they be released only after their deaths. Understandably this was because the IRA was and is very secretive and controlling, and those interviewed revealed operational secrets, the IRA’s methods and often criticised key decisions and people within the organisation. At present, the interviews are kept under lock and key at the college. However, on July 6th the first circuit court of appeal ruled that the College and Ed Moloney, the journalist in charge of the project, didn’t have the right to promise to withhold the information they were given, and have ordered that information be turned over to the PSNI by next month. This test case has brought out academics and journalists decrying the court’s decision, proclaiming source protection as sacred. The National Union of Journalists in particular, which is a joint British-Irish organization, has condemned the ruling. General Secretary Michelle Stanistreet has argued that the ruling has “significant implications” for academic and journalistic research, while others have criticised the College for not acting like other journalists and protecting their sources to the point of going to prison.

One of the main reasons the PSNI want to get their hands on this treasure trove of information is to help them discover what happened to certain people during the conflict, a collective known as the ‘disappeared.’ This is the name that has been given to sixteen people who vanished during the Troubles at the hands of the IRA, believed to have been abducted and killed, then buried in shallow graves. In 1999, the IRA admitted to killing nine of the victims on that list, and gave up the burial sites, although only three were found at that time. Since then, a further four bodies have been recovered. The most infamous of these cases was that of young mother, Jean McConville, whose body was finally discovered in 2003 by a family out on a walk, a mile from the location the IRA had given for her grave. McConville was born into a Protestant family in East Belfast though converted to Catholicism when she married her husband, Arthur. One of her sons, Robbie, was in Long Kesh for Official IRA related activities although he defected to the INLA in 1974. In December of 1972, she was abducted from her home by 12 members of the IRA, men and women, and killed by a single bullet to the back of the head, her remains buried on a nearby beach. The IRA refused to admit responsibility for many years, and then claimed that McConville had been a British spy, passing information on local republicans to British security forces through a radio transmitter. Her children have consistently rejected this claim, and have repeatedly called on the IRA to clear their mother’s name. An official investigation revealed no evidence to prove the IRA’s claims. Enter Boston College and their Belfast Project. One of those believed to be have been interviewed, Dolours Price, could reveal she was part of the murder as the driver of the car which took McConville to her death, and more importantly, the role of Gerry Adams in all of this. Such allegations concerning Adams are nothing new. In Voices from the Grave, based on two interviews from the Boston project, former IRA operative Brendan Hughes said as much of Adam’s role, claiming that it was Adams who established the IRA unit which killed McConville, and he who gave the order for her secret burial, to avoid the negative publicity surrounding the murder of a women and the orphaning of her children.

But the families of those disappeared by the IRA during the Troubles aren’t the only ones who could be affected by the court’s ruling. Those still living ex-IRA members and their families could be in for trouble should their testimonies reach the light of day. Carol Twomey, wife of Anthony McIntyre (former IRA gunman who conducted the interviews) believes that her husband and other ex-IRA men will risk being killed should the interviews be handed over, and used to secure prosecutions. Retribution, she argues, is a very real fear for men who have been branded by some as ‘touts’ for revealing IRA secrets.

Then of course there’s the impact on Northern Ireland and the peace process to be considered. The country may be at peace but nobody can deny it isn’t somewhat shaky. If Hughes’ allegations are confirmed by a second IRA member’s testimony, given in the knowledge it wouldn’t be revealed until after her death, what does this do for the stability of Northern Ireland and its government, bearing in mind that Gerry Adams always shrugs off accusations of IRA membership, and leadership. It’s hard to predict the reaction from the Republican camp. A Northern Irish government which is dependent on its members possible past criminal lives being ignored isn’t exactly a solid foundation in the first place. But it has worked thus far. And an appeal is already in the works. Several prominent politicians in America, including the former presidential candidate John Kerry have lobbied for the interviews to remain sealed. It just might stick and it could be years before the Boston tapes see the light of day, and all those involved are dead and buried, and a new generation will have to deal with the mistakes of their forbearers.

So, to reveal or not to reveal? Do we make an attempt to forget our past in the interest of the future or do we strive to excise all of its demons. It’s a tricky one. How do you decide which is more important – the need for truth and closure on the part of Jean McConville’s family, and any others who might have something new to learn about the disappearance of their loved ones or the fact that to reveal the identities of any former IRA members who participated in the Boston project is to pass a very possible death sentence on them. Some might argue that death is what they deserve for the activities they and their Loyalist counterparts were involved in during the Troubles but to essentially have them killed makes us no better than what they are and were. The truth shall set you free, it has been said. But in this case, perhaps it might just do more harm than good. Should Gerry Adams be finally proven to be an utter liar, should he be proven to have been in the IRA command when he said he wasn’t, such a thing wouldn’t be a terrible event by any stretch of the imagination. But if Boston College can be forced into giving up these precious oral histories of such an important and tragic part of our history, where does it stop? So many hidden histories, so many stories are dependent on the assurance that can be provided by the interviewer that the identity of their source will be protected at all costs. So who in their right mind would ever again trust a journalist or in particular an academic into telling their story?

No, let sleeping dogs lie, as they say. Wait until those involved are dead and gone. With any luck, Gerry Adams and co will still be alive when that time comes. If not, then we can see the contents of that historical treasure trove for ourselves, and history can be the judge of it all.

Grave matters

Grave matters
by Niall Stanage
22 July 2012
Sunday Business Post

The killing of Jean McConville has echoed down the decades with as much resonance as any death suffered during Ireland’s Troubles.

In December, it will be 40 years since the widow and mother of ten was taken from her home in West Belfast’s Divis Flats, interrogated, brought across the border and shot dead.

Those who sent her to her fate were members of the IRA who believed that she was an informer for the British army. Her body was eventually found in 2003 at a beach near Carlingford, Co Louth. McConville’s family have in the past denied she was an informer.

McConville’s death created little stir at the time, largely because it occurred against a very different backdrop than the present day. She died in 1972, the single bloodiest year in the Northern conflict, when almost 500 people were killed. No one has ever been convicted of McConville’s murder and, for a long time, it seemed as if no one ever would be.

But that may be beginning to change. Her case is now attracting attention on both sides of the Atlantic, reaching the pages of the New York Times and the airwaves of America’s National Public Radio.

The search for the truth about what happened to McConville is raising complicated questions. It now involves a British government attempt to override promises of confidentiality made as part of a sensitive academic project.

This has led to debates about the reach of government, the extent of the public’s ‘right to know’ and the capacity of researchers, academics and reporters to protect their sources.

That’s not all. As is so often the case in the North’s hall of mirrors, the question of whether there is really an ongoing good-faith effort to solve her killing – or whether there are other, shadier motivations at play – is hard to answer.

Troubles, tapes and threats

The spotlight that has been shone onto the case has exposed numerous divisions, enmities and straightforward differences of opinion. But some facts are clear.

During 2000 and 2001, journalist and author Ed Moloney, then the Northern editor of the now-defunct Sunday Tribune, began discussions with Boston College about conducting an oral history project pertaining to the Troubles.

Boston College – commonly known as ‘BC’ in the United States – had an obvious interest in such an idea, being proud of its reputation as the pre-eminent US university in the field of Irish studies.

The outlines of the proposal were simple – or so it appeared at the time. Under the aegis of BC, Moloney would hire researchers to interview former combatants, both republican and loyalist, about their experiences. These people would be induced to talk, in part by the promise that their testimonies would not be released until they died, unless they expressly permitted otherwise.

The project got fully under way in 2001. According to BC spokesman Jack Dunn, the materials collected and now held under lock and key in the college’s Burns Library, amount to a series of interviews with “26 former IRA paramilitaries and approximately 20 to 24 recordings of interviews with former UVF [Ulster Volunteer Force] members”.

The Belfast Project, as it was known, was completed in 2006, to the apparent satisfaction of everyone involved. Four years passed. Then the roof fell in.

In 2010, two Belfast-based newspapers carried stories about Dolours Price, a former IRA member who had been jailed with her sister Marian and the now-prominent Sinn Féin representative Gerry Kelly for the 1973 bombings of London’s Old Bailey.

Price, the stories stated, had confessed her involvement in McConville’s murder, and also alleged that the Sinn Féin president Gerry Adams was her “officer commanding” at the time. A similar allegation against Adams, it emerged, had been made by Brendan Hughes, a former IRA commander who died in 2008.

Adams, who has always denied being an IRA member, has repeatedly and emphatically denied having anything to do with McConville’s death.

The newspaper interviews with Price are shrouded in some controversy because Price, who has acknowledged that she suffers from post-traumatic stress disorder, was said to be in ill health at the time. The journalists involved stand over their reporting.

Price, crucially, also acknowledged that she had told a similar story about McConville to the BC researchers. More than a year after the newspaper stories appeared, the British government, acting under the terms of a treaty with the US, sought a subpoena to prise the materials from Price’s BC interviews out of the college’s library and into their own possession.

The British also sought materials gleaned from interviews with Hughes. Last August, this was followed by a further set of subpoenas seeking, from the entire Belfast Project archive, “any and all interviews containing information about the abduction and death of Mrs Jean McConville”.

Cue legal mayhem.

BC’s governing trustees gave up the Hughes materials, because he had died. They challenged the subpoena pertaining to Price and lost. The college has an appeal pending about the other, broader set of subpoenas, but it is not appealing the order that it should give up the Price materials.

“The reality is Dolours Price had given an interview with the Irish media in which she had implicated both herself and Gerry Adams in the abduction and murder of Jean McConville,” Dunn, the BC spokesman, told The Sunday Business Post. “It made the notion of appealing to the court to protect her confidentiality less than compelling.”

But the prospect of giving up any material is anathema to Moloney and the researcher whom he employed to conduct the IRA interviews: the writer and political analyst Anthony McIntyre, himself a former IRA prisoner.

The two men, bitterly disappointed at BC’s actions, are taking their own legal measures to try to keep the tapes under wraps.

Moloney and McIntyre view the trust between themselves and their interviewees as sacrosanct. To give up the materials would amount to a betrayal of their ethics as journalists and academics, they say.

The duo suffered a considerable setback earlier this month when an appeal they had lodged was turned down by a US court. According to McIntyre, they will now seek what is known as an en banc hearing, in which all of the judges on the US’s First Circuit, rather than just the three who rendered this month’s verdict, consider a case.

There is no guarantee that the en banc hearing will be granted, however. If it is refused, McIntyre and Moloney have the possibility of appealing the case all the way to the US Supreme Court. They are simultaneously pressing their case through a judicial review in the North.

Amid all the legal wrangling, there are more basic concerns. If the Price tapes – or other interviews – are given up, people named in those tapes would be exposed to legal jeopardy. That, after all, is the whole point of the exercise from the British government’s perspective.

Such an outcome would be seen in certain districts of the North as Moloney and McIntyre having handed the British authorities a gift. The finer points of the argument as to whether the two men had been hung out to dry by BC would probably not be of paramount importance to aggrieved republicans.

Moloney now spends much of his time in New York, but McIntyre, who left west Belfast for Drogheda, is less distant from anger. A neighbour’s house in the Co Louth town was attacked with excrement in 2010, a bizarre occurrence that he says gardaí ascribed to a case of “mistaken identity”.

Around the same period, media reports alleged that republicans in Belfast were threatening that McIntyre would face a similar demise to that suffered by Eamon Collins, an IRA informer-turned-author who was killed in brutal fashion in Newry in 1999. Although Sinn Féin has in the past denied that McIntyre faces any threat, he told The Sunday Business Post that he and his American-born wife Carrie Twomey are “extremely worried” about the implications, if the US courts continue to rule against them.

“If this stuff gets turned over, the situation will get very dangerous for us,” he says.

Professor Richard English, a historian who has written extensively about the IRA, agreed. English is concerned about the possible implications of adverse court rulings on future oral history projects – and also about the safety of McIntyre and Moloney.

“There is always a risk in the North that some outlier might seek to punish someone they consider to have transgressed a code of secrecy,” English says. “I think the mainstream groups from the Troubles will not sanction violence in this instance. But there are more marginal figures who might perhaps want to settle some scores.”

A knotty enmity

To say the BC case is knotty hardly does it justice. From every perspective, complication is piled upon complication. To take just one example, both Moloney and McIntyre have, on occasion, vigorously criticised Sinn Féin’s leadership.

Now, however, in the process of defending the confidentiality of the Belfast Project interviews, the two men profess considerable concern about the implications for the “pro-peace” elements of the republican movement – and the peace process itself – if the American courts rule against them.

The personal enmity between Moloney and Gerry Adams is common knowledge among the North’s political observers. McIntyre for several years ran a website, The Blanket, which served as a forum for debate among republicans, many of them dissatisfied with the direction of the peace process.

Still, Moloney stated in one affidavit relating to the BC matter: “Dissident opponents of the pro-peace party within the IRA . . . will find only hope and comfort if the oral history tapes are handed over to the PSNI, especially if criminal charges follow.”

And what of the motives of the British government in seeking the release of the tapes? The whole British effort to get the Belfast Project materials could, on the one hand, be a sincere effort to bring McConville’s killers to justice. The specifics of the British stance are hard to divine because the full request to the American government to issue the subpoenas remains sealed. But it seems safe to presume that the authorities would couch their request in terms of the desire to see the law enforced.

Since the Good Friday Agreement, however, the powers-that-be in the North have been generally circumspect about pursuing prosecutions for acts relating to the Troubles carried out prior to 1998. Such prosecutions are not impossible or unprecedented, but they are rare.

Even such a staunch Adams critic as McIntyre wonders whether the true purpose of the BC subpoenas could be to publicly embarrass the Sinn Féin leader – “to fuck Big Gerry over,” as McIntyre pithily puts it – or at least to seek a bargaining chip with Sinn Féin.

The British, he posits, could be “trying to bounce Sinn Féin into making a serious contribution to addressing the past. The Tories do not want troops in the dock [for their actions on Bloody Sunday or elsewhere] and there might be an idea of saying to Sinn Féin, ‘Well, if that happens, then this will happen’.”

The legality of confidentiality

The key legal issue in the BC case is under what circumstances academic researchers – or reporters – can uphold promises of confidentiality to sources.

Given the United States’ expansive press freedoms under the First Amendment – freedoms that makes libel cases much easier for the media to defend than in Ireland or Britain – a common misconception has taken root. It is the idea that journalists – or, in the BC case, academics – have a near-absolute right to honour promises of confidentiality.

This is simply untrue, as the most recent verdict rejecting Moloney and McIntyre’s arguments makes clear. The US Supreme Court long ago set a powerful precedent in these matters.

The case, known as Branzburg v Hayes (argued and decided in 1972, the same year as Jean McConville’s death) brought together a handful of instances in which reporters were being pressured to give up sources who may have been involved in, or at least witness to, illegal activity.

The reporters argued, in essence, that the mere fact that they were journalists meant that they could decline to testify before a grand jury, for fear of incriminating their sources. They lost, albeit by the closest possible margin of 5-4.

“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,” Justice Byron White ruled, for the majority.

Another judge offered a concurring opinion but with a caveat: “If a newsman believes that the grand jury investigation is not being conducted in good faith, he is not without remedy,” Justice Lewis Powell stated, going on to say that a request for disclosure could be quashed if a reporter had “reason to believe that his testimony implicates confidential source relationship without a legitimate need of law enforcement”.

In the BC case, Moloney and McIntyre contend that the British government is not acting in ‘good faith’. The courts have not proven receptive to that argument so far.

The duo’s legal team would also prefer if the courts paid greater notice to a later case, albeit one which did not ascend to the lofty heights of the Supreme Court.

In 1998’s Cusumano v Microsoft, the US Court of Appeals held that the giant software corporation could not obtain what it wanted: the notes, tapes and transcripts acquired by researchers who were writing a book about the “browser wars” between Microsoft’s Internet Explorer and a rival, Netscape Navigator.

Microsoft said it wanted the materials in order to help defend itself in a civil case regarding alleged abuse of its dominant market position. The judges at an earlier stage in that process found that Microsoft’s imperative to have the information “though real, was not great”.

But, even in the Microsoft case, the court was crystal-clear that no absolute right of confidentiality existed. Instead it ruled that, on a case by case basis, “courts must apply a balancing test” weighing the imperative for disclosure against the desire for confidentiality.

The judge who delivered the ruling on Moloney and McIntyre’s case offered a stark verdict. “The choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers,” Chief Judge Sandra Lynch held.

Even the slightly more favourable opinion offered in the Moloney and McIntyre suit by Circuit Judge Juan Torruella did not provide much real grounds for optimism for the duo. Torruella basically said that the other members of the court had gone too far in suggesting that “the First Amendment does not provide some degree of protection”. But he still endorsed the idea that the court needed to conduct a balancing act – and that Moloney and McIntyre were on the losing side of that argument.

He added that, where serious crimes were concerned, the Supreme Court had already determined that even if the First Amendment offered limited protection to reporters or researchers, it was “insufficient to overcome the government’s paramount concerns in the present context”.

The college and the controversy

These debates may sound dry or arcane to some, but they go to the heart of a more messy and human story: the way in which Moloney and McIntyre are now at loggerheads with BC.

The extent to which relations have broken down is evident in interviews given to The Sunday Business Post.

Shorn of the most vituperative elements, the division is one in which Moloney and McIntyre feel BC has failed to fight hard enough against the subpoenas, while representatives of BC feel that the two Irishmen are trying to deflect attention from their own responsibility for the legal farrago.

Both sides are now expending considerable effort in arguing over the negotiations that marked the Belfast Project’s earliest days.

Under one interpretation – the one favoured by Jack Dunn and, presumably, others at BC – the university warned Moloney at an early stage that no absolute guarantee of confidentiality could be given to anyone. They suggest by implication that it was his fault if those qualifications were not passed on to those who agreed to be interviewed.

Under the other interpretation – that emanating from Moloney and McIntyre – BC totally agreed with the guarantee of confidentiality but, now that the heat is on, is trying to get out of it.

Both sides can marshal evidence to support their case.

BC now places a lot of stress on the contract that was signed on January 31, 2001, codifying the agreement between Moloney and BC. It states that each person interviewed is “to be given a contract guaranteeing to the extent American law allows the conditions of the interview”.

The reference to the primacy of American law, according to Dunn, means that “clearly – clearly! – [Moloney] was told in advance that there were limits to confidentiality based on American law”.

He adds: “To say that assurances of confidentiality were given by Boston College is completely specious. There is absolutely no truth in that statement whatsoever. ”

But is it? While it is apparently accurate that no one from BC made direct promises to any interviewees, court documents – in particular affidavits from senior figures at the university – seem to suggest that they were, at the least, acquiescent in those promises being made.

For example, in an affidavit dated June 2, 2011, Thomas E Hachey, the director of Boston College’s Centre for Irish Programs, said that, at the start of the project, he was unsure how many people would be willing to participate.

But, he added under oath, “the opportunity to gather testimony for posterity that would be kept strictly confidential during the interviewee’s lifetime and retained in a collection that would be housed in Boston, rather than Belfast or Dublin, prompted more involvement by paramilitary veterans than we might otherwise have expected”.

He went on to outline his belief that Moloney had required interviewers to convey to participants “the absolute promise that their accounts would be kept confidential until the demise of the individual providing the testimony . . . I believe that few, if any, of the interviewees would have agreed to participate without such assurance”.

The affidavit contains no suggestion that Hachey thought Moloney was being reckless or cavalier in pushing such a pledge.

McIntyre, for his part, is adamant that “the very first stumbling block” when he was considering becoming involved in the project was the question of how confidentiality could be assured. “Without that, it was a non-starter,” he recalls.

The dispute has left relations between the men and the college seemingly beyond repair.

“Boston College has behaved totally unscrupulously through all of this,” says McIntyre.

Dunn counters: “When it became a problem, instead of accepting responsibility, Mr Moloney and Mr McIntyre have literally gone on a full-scale publicity campaign to deflect responsibility from themselves. The old adage of ‘beware he who doth protest too much’ . . . ? I think that is becoming abundantly clear.”

Beyond the heated words, unaligned historians fear that the whole BC issue will prove a deterrent to cooperation with academic inquiries in the future.

“One of the crucial aspects of research into violent conflict is trust between researchers and interviewees,” says Richard English. “If people to be interviewed fear that what they say will become public, despite reassurances from the researcher, then their honesty and openness in research situations will become narrowed down.”

What happens next is not certain. At the time of going to press, it was unclear whether Moloney and McIntyre’s request for an en banc hearing would be fulfilled. BC expects a decision on its attempt to resist the broadest subpoenas – those relating to requests for all material relating to the McConville killing – in the autumn.

Dunn says of that case: “We think this appeal is crucial. The notion that, because we didn’t defend the indefensible regarding Dolours Price, we somehow aren’t committed to this, is an insult.”

He is also scathing of Moloney and McIntyre’s separate legal efforts, saying of this month’s verdict that “we knew it was a case that could not be won” and that it “didn’t help our cause at all”.

While all the legal arguments turn, the family of McConville still wait for justice.

Whether they will receive a measure of it, whether their mother’s killing will go unsolved or whether the whole dark episode will become a pawn in a bigger game remains to be seen.

Attempts by this paper to contact the most publicly prominent member of the family, her daughter Helen McKendry, were unsuccessful.

McIntyre says he feels sympathy for McConville’s relatives. But he adds that those emotions do not erase his other responsibilities.

“I have every sympathy with the McConville family,” he says. “But it is not my job to provide evidence to other people and in doing so breach a promise of confidentiality.”

Former IRA prisoner dubious about re-opening inquiries

Former IRA prisoner dubious about re-opening inquiries
Tommy McKearney has accused academics at Boston College of a breach of trust regarding taped interviews they have been ordered to hand over to the authorities
Tyrone Herald
July 16, 2012

FORMER Tyrone hunger striker and IRA man Tommy McKearney has accused academics at Boston College of a breach of trust regarding taped interviews they have been ordered to hand over to the authorities.

Speaking to the Tyrone Herald McKearney was also scathing of the decision to convict Dungannon man Gerry McGeough for the attempted murder of part-time UDR man Sammy Brush from Ballygawley 31 years ago in 1981.

McGeough was sentenced to 20 years in jail and is expected to be released in January 2013, having served two years under the terms of the Good Friday Agreement.

Mr McKearney who works as a freelance journalist and is an organiser for the Independent Workers Union of Ireland said, “The idea of revisiting the conflict to try and single out individuals is wrong. Either the conflict is over or it’s not; one or two people cannot be victimised.”

His comments come after the US appeal court ruled that an interview with the former Old Bailey bomber Dolores Price should be handed to police investigating the murder of Jean McConville. Mrs McConville (37), a widow and mother of ten, was abducted by members of the IRA in Belfast and killed as an informer. Her body wasn’t found until 2003.

The Boston project involved up to 30 interviews with former paramilitary activists conducted on the basis of assurances from journalists Ed Maloney and former IRA prisoner Anthony McIntyre that none of the recorded material would be made public during the lifetimes of the interviewees.

Mr McKearney is a close friend of Anthony McIntyre having been in prison together and worked with him in publishing left wing magazine ‘Forthright’ in 2000.

He said, “Ed Maloney and Anthony were given an absolute guarantee by the Boston academics that the tapes would be held in confidence. The academics have not shown the integrity of journalists who were prepared to go to jail rather than reveal information or sources. There is no real legal protection but if the police asked a reporter for notes they would refuse and state that handing them over would be a violation of their ethics. Suzanne Breen and Ed Maloney were prepared to go to jail for this principle.”

The former blanket man revealed that he has refused interviews with academics because of the actions of the Boston researchers.

He added, “Anthony expected the same professional standard in the USA as I believe academics in Ireland or Britain would have shown. I am not sure his life is in danger. I hope not but you can never tell what one deranged individual can take onto himself to do.”

Mr McKearney also doubts that remarks attributed to Dolores Price would “get through the doors of a courtroom” because of her highly publicised mental health issues while IRA man [Brendan] Hughes, who also spoke on tape, is deceased and could not be cross-examined in a witness box.

He is also dubious of revisiting unsolved investigations from the ‘Troubles’ and that includes the murder inquiry into Bloody Sunday when 14 people were shot dead by British Army in Derry in 1970.

VICTIMISATION

“There can’t be a victimisation of one or two people as in the case of Gerry McGeough. To pick out one or two soldiers on the day in Derry would be a travesty of justice as the real culprits who ordered the killings are at the top of government. We will never see them held responsible and it is a very selective form of revisiting the past. You have to get everybody or take nobody.”

Boston College urged to remain silent

Boston College urged to remain silent
GERRY MORIARTY, Northern Editor
The Irish Times
Saturday, May 14, 2011

A WRITER and a former IRA prisoner have urged Boston College to resist attempts to force the college to disclose information provided to them by former republican and loyalist paramilitaries.

Boston College has been subpoenaed by the US attorney general’s office to release information that was provided in confidence to the college in an oral history project about the conflict in Northern Ireland.

The attorney general is acting at the behest of the authorities in the UK. PSNI detectives are hoping that this action will compel the college to release interviews provided by the late Brendan “the Dark” Hughes and Dolours Price, both of whom were former convicted senior IRA figures.

Detectives are seeking information that would relate to allegations and suggestions by Mr Hughes and Ms Price that Sinn Féin president Gerry Adams ran an IRA unit that was involved in several abductions and disappearances, including the disappearance of murder victim Jean McConville.

Mr Adams has repeatedly denied these allegations.

Author Ed Moloney used interviews Mr Hughes and the late David Ervine gave to the college as material for his recent book Voices From the Grave.

Former IRA prisoner Anthony McIntyre conducted the interview with Mr Hughes, a former senior IRA figure and estranged friend of Mr Adams.

Wilson McArthur, who is from a loyalist background, interviewed the former UVF prisoner and leader of the Progressive Unionist Party David Ervine. More than 50 other republican and loyalist paramilitaries have also given detailed interviews to Boston College, again based on the academic guarantee that details would not be disclosed until after their deaths.

Mr Moloney, who is now living in New York, deplored the attempt to compel the college to release details of the interviews. “I very much hope and expect that Boston College will resist this,” he said.

“It is very important that there is the freedom to write and chronicle history while it is still possible to do so, and to get accounts from people who were directly involved. This is vital,” he added.

“Part of the problem is that the conflict lasted so long. Unlike the Anglo-Irish War we can’t wait 20 years to interview people. If we don’t do this exercise now then we can forget it because a lot of the people will be dead,” said Mr Moloney.

“It is important to collect these valuable insights which help explain how and why the conflict happened, and to help prevent future conflicts.”

A spokesman for the college said: “Boston College is reviewing the subpoena from the US attorney’s office and is requesting additional information in light of the ramifications it poses regarding the safety of the interviewers and the impact on oral history projects as an academic enterprise.”

Researcher Anthony McIntyre, who had a number of disagreements with Mr Adams, said he suspected that the subpoena was motivated by a “British state agenda to embarrass Gerry Adams”.

“The college must resist this with all the force it can muster,” he added.

This move could have serious implications for similar history projects. “This is our worst-case scenario,” Mary Marshall Clark, the director of the oral history research office at Columbia University, New York told yesterday’s New York Times.