Boston College’s Belfast Project Lands in Court—Again

Boston College’s Belfast Project Lands in Court—Again
Beth McMurtrie
Chronicle of Higher Education
February 9, 2015

A Boston College oral-history project on Northern Ireland’s 30-year civil conflict has again found itself in court. On Monday a British judge ruled that the Police Services of Northern Ireland has the right to retrieve interviews given to Boston College by Winston Rea, a former loyalist paramilitary member and a participant in its Belfast Project. Mr. Rea had tried to block the handover of his interviews, which were supposed to remain confidential until his death.

In 2011 Boston College began a two-year court battle to prevent access to the archives by British authorities, which sought some material as part of a decades-old murder investigation. Boston College ultimately turned over a number of interviews. Last May the Police Services, which continues to investigate old crimes, said that it was going to seek the entire archive.

That appears to have resulted so far in one subpoena, for Mr. Rea’s material. Unlike the earlier court battle, the legal deliberations that led Boston College to turn over Mr. Rea’s interviews came to light only when he tried to stop the transfer of material into Northern Ireland. It is unclear if subpoenas for any other interviews have been issued.

Boston College declined to comment, saying the U.S Department of Justice had asked that the matter be kept confidential. The Justice Department also declined to comment.

Boston College tapes: Winston Rea loses legal challenge

Boston College tapes: Winston Rea loses legal challenge
By Alan Erwin
09 February 2015
BelfastTelegraph.co.uk

A former loyalist prisoner has lost his legal battle to stop police investigating murder and robbery from obtaining interviews he gave to a US university project.

Winston “Winkie” Rea issued judicial review proceedings in an attempt to halt any handover of the Boston College material.

But a High Court judge today rejected claims that the move was unlawful and breached his rights to privacy.

Dismissing Rea’s challenge, Mr Justice Treacy said: “It’s clear in my view that the applicant is subject to a police investigation into crimes of the gravest kind.”

His ruling clears the way for PSNI detectives to fly to America to take possession of recordings of the loyalist’s interviews.

In a statement issued after the verdict, Rea repeated his claim that police and the Public Prosecution Service (PPS) were involved in nothing more than a “fishing exercise”.

He was among dozens of loyalists and republicans who provided testimonies to researchers compiling an oral history of the Northern Ireland conflict.

Interviews were given on the understanding that tapes would not be made public until after their deaths.

But those assurances were dealt a blow in 2013 when detectives investigating the abduction and murder of Belfast mother-of-ten Jean McConville back in 1972 secured the transcripts of former IRA woman Dolours Price’s account.

That material was handed over following court battles on both sides of the Atlantic.

Rea, a son-in-law of the late UVF leader Gusty Spence, claimed a subpoena for his tapes is unlawful and unspecific.

His barrister claimed the police move was based purely on rumour and a newspaper interview given by Rea and fellow loyalist William “Plum” Smith three years ago.

But the court was told an investigation has been launched into serious crimes stretching from the seventies to the late nineties.

The alleged offences include murder, directing terrorism, membership of a proscribed organisation and robbery.

An international request for the tapes said police have information that Rea was a member of the Red Hand Commando whose interviews would assist investigations into those crimes.

It claimed he has “a long involvement in organising and participating in terrorist offences in Northern Ireland, including murder, directing terrorism and robbery”.

He was also alleged to have acted as a personal security guard to Spence and met with former British Prime Minister John Major in 1996 – a claim disputed by Rea.

Mr Justice Treacy threw out his challenge after holding that the test for seeking the material had been met.

He said it was “manifest” from the terms of the request that a police investigation was underway.

“The request was plainly lawful,” the judge said.

“There is no credible contention that the applicant’s rights (under the European Convention on Human Rights) are infringed.”

Two weeks ago Rea secured a temporary injunction as police were set to board a plane for America to get the tapes.

But with his judicial review application dismissed, counsel for the PSNI confirmed that no longer applies.

Tony McGleenan QC said: “There was an order for interim relief made by consent. That is revoked and police are now free to proceed.”

The judge replied: “I assume that flows automatically.”

Boston College tapes: Truth-recovery pie in the sky as long as shadow of arrest looms

Boston College tapes: Truth-recovery pie in the sky as long as shadow of arrest looms
The agreement about dealing with the past hammered out at Stormont House could be derailed by another Boston College tapes crisis – this time involving a leading loyalist.
Brian Rowan
30 January 2015
BelfastTelegraph.co.uk

The latest battle for access to the Boston College tapes threatens to open up a much wider debate and discussion on the past. This oral history project recorded republicans, loyalists and, it is believed, a former RUC officer, telling their stories of the conflict years. Those stories were meant to stay untold until after they died.

The book Voices From The Grave, authored by journalist Ed Moloney, brought into the public domain words spoken by former IRA leadership figure Brendan Hughes and loyalist David Ervine. Both died in their 50s.

And it was the Hughes revelations, including what he said about the IRA abduction, “execution” and disappearance of Jean McConville, which were to lead to dramatic developments.

These included the headline arrest of Sinn Fein president Gerry Adams last April. Adams was questioned from Wednesday April 30 through to his release on Sunday May 4; that questioning extending to an examination of IRA membership, all of which Adams denied. He described a “malicious, untruthful and sinister campaign” against him.

And, all these months later, there is now a different focus. The latest Boston College news is about trying to access the tapes of loyalist Winston ‘Winkie’ Rea.

He is a former prisoner, leader of the Red Hand Commando, son-in-law of the late Gusty Spence and, in the peace process years, was seen as an important figure in the ceasefire and decommissioning debates. Rea was a close friend of Ervine, a member of the UVF who became a Stormont MLA.

Adams attended Ervine’s funeral in January 2007; a remarkable occasion that had the Sinn Fein president, the UVF leadership, then Chief Constable Sir Hugh Orde, Secretary of State Peter Hain and former Taoiseach Albert Reynolds under one roof.

This was following the ceasefires and after the Good Friday Agreement and in a climate where the once impossible became possible. And it was in this context that some began to tell their stories of the conflict years.

If the now-published Ervine example is anything to go by, then loyalists have been much less revelatory in their recordings; less accusatory.

The Jean McConville case, demonstrating the worst horrors of conflict, gave a specific focus to the police investigation around the republican tapes and disclosures. But this is not the case with Rea.

Loyalists, including William ‘Plum’ Smith, who was successful in a legal challenge to have his Boston tapes and transcripts returned, see this as nothing more than a fishing exercise.

Three years ago, in an interview with this newspaper, he said his move to have his tapes returned was not out of concern about their content.

“I’m concerned about the principle,” he said. “I have asked for the tapes back, because Boston College cannot guarantee the basis on which the interviews were given.”

This was a reference to the belief that contributions to the archive would remain confidential until after death.

Rea also commented back then. He believed that, if the Smith test case was won, then it would have “a domino effect” for others wishing to have their material returned.

But this has not been so for him. The question is why? Is it the loyalist paramilitary leadership role Rea once held in the so-called “war” years, his leadership of an organisation identified with guns, bullets, bombs and killing?

Smith, also a former Red Hand Commando prisoner and a close friend of Rea, has his own thinking on the latest move.

He believes that, after the Adams arrest, this is “another balancing act” – similar to when a number of loyalists were interned decades ago.

And he also believes that, in the here and now, it “flies in the face of any attempt to create a truth-recovery process”.

Budgets and welfare reform were the main focus of the pre-Christmas Stormont House talks. And, alongside those issues, there was a big effort to achieve a structure that would finally begin to address the many unanswered questions of the past.

After Eames/Bradley and the Haass/O’Sullivan processes, this was the third attempt to achieve this.

And there is now a paper agreement to build upon; an Historical Investigations Unit (HIU), an Independent Commission for Information Retrieval (ICIR), an Implementation and Reconciliation Group (IRG), with archive and acknowledgement elements.

But any information-recovery process will depend on co-operation across the conflict board – governments, intelligence agencies, military, police, republicans and loyalists. But what chance of that being achieved or being achievable in the current climate?

Smith answered that question when he talked about these latest investigative moves relating to the Boston project flying in the face of attempts to create a truth-recovery process.

The ICIR intended to deal with this would act privately and through interlocutors reaching out into those different worlds of governments, intelligence, security and the various armed loyalist and republican groups.

It is about questions and answers. But who is going to answer, even if there are guarantees that information given in this process will not have any evidential value?

Rea, Smith, other loyalists and republicans thought, believed, understood, that the Boston College project was protected by confidentiality.

This may have been their understanding, but it hasn’t been the reality.

From the publication of the Hughes transcripts and other revelations, this project has unravelled into a legal mess and battlefield.

Investigations and arrests have followed and, now, there is the news of the Rea case, which has created another bad mood within the loyalist community that this is some type of “balancing act”, or “equaliser”.

And the consequences of this are that it will put people back in their trenches; into places of silence rather than talking.

There may well be many unanswered questions but, in this atmosphere, there won’t be answers. And that has implications for that paper agreement made in Stormont House.

What is the point of an information or truth-recovery process without significant co-operation and disclosure? Information will not flow within a process that still has the potential to lead to arrests, charges and perhaps prison for however short a time.

And we know from the assessments of policing experts that investigations will deliver little in terms of jail time and justice.

But investigations will block the potential to open up and open out some greater sharing of information and explanation and understanding of the conflict years.

What we are watching is not just a case about one man, or one actor within the conflict period, but something that potentially has much wider implications.

And, all of this tells us that the past hasn’t gone away.

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.

Conclusion

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.

 


 

Notes

  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 http://chronicle.com/article/Secrets-from-Belfast/144059/.
  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 http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-summer-2011/number-states-shield-law-cl. 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 http://www.bostonglobe.com/metro/2014/05/06/boston-college-says-interviewees-northern-ireland-troubles-oral-history-project-can-get-their-tapes-back/cRgXf2Th3My0H3zqOq1q6H/story.html.

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

Storey arrest ‘based on information given to oral history project’
Irish News
FRIDAY DECEMBER 5 2014

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

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

BY ANTHONY NEESON
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.”

The Belfast Project That Students Forgot

The Belfast Project That Students Forgot
Delphina Gerber-Williams
The Heights
22 September 2014

In the past year, we have witnessed our country plummet in its Global Press Freedom Ranking, the U.S. Supreme Court refuse to step in on behalf of a Pulitzer Prize-winner facing jail time for protecting a source, and concern over Internet freedom growing. We’ve discussed freedom of the press, feared the NSA, and worried about all of our Facebook conversations going public. But where were we, the Boston College community, when confidentiality, protection of sources, and the integrity of academic freedom were being fought over by the U.S. Department of Justice, three senators, six congressmen, and three nations, right here on our campus?

Last May, BC announced that it would return recorded interviews from the controversial Belfast Project to its participants. This not only marked the end of a string of legal disputes involving BC, the UK, and the U.S. Department of Justice, but also the death of a groundbreaking research project.

Starting in 2001, the Belfast Project was aimed at documenting the three-decade ethno-nationalist conflict that wracked Northern Ireland from the 1960s to 1998, known as the Troubles. Organized by Executive Director of the Center for Irish Programs Thomas Hachey, then-Burns Librarian Robert O’Neill, Irish journalist Ed Moloney, and former Irish Republican Army (IRA) member and historian Anthony McIntyre, the project consisted of interviewing 46 former paramilitary fighters from both sides of the conflict. The project directors intended each interview to remain sealed until the death of the respective interviewee.

In 2010, the first interviews were published in the book Voices from the Grave, by Ed Moloney. These interviews, with former IRA leader Brendan Hughes and former Ulster Volunteer Force member David Ervine, were only made public because of their deaths in 2008 and 2007, respectively.

Shortly after, the British government contacted the U.S. Department of Justice, seeking two interviews from the project that might shed light on a murder committed during The Troubles. After deliberation, the University agreed to hand over Hughes’ interviews, but kept the interviews of Dolours Price on the grounds that she was, at that point, still alive.

Eight months after the initial subpoena, the British government issued a second subpoena, now requesting all of the interviews in the BC archive that contained information about the abduction and death of Jean McConville.

The subpoenaing of the tapes threatened the project. One of the first academic endeavors to reveal new details on the Troubles through interviews with former IRA and unionist members, and the only of its scope, the Belfast tapes had the potential to shed light on the sensitive and complex problem of sectarian violence.

The possible ramifications of the subpoenas, however, ran far deeper than the tapes. Traditionally, academic research is granted higher protections from the law so that knowledge and truth can be pursued for the advancement of society. These subpoenas threatened this notion and challenged the idea that academic freedom is essential to the vitality of our society.

The subpoenaing of the tapes also threatens further research. As University Spokesman Jack Dunn told WBUR radio, reported by NPR in May, “Clearly, this could have a chilling effect on oral history projects.” Without protection, researchers will face uncertainty from those who gather information from confidential sources and the sources themselves.

In defense of his own work and academic freedom, McIntyre even claimed that a researcher is actually obliged to destroy his or her material before giving it to a person who could bring it harm, according to an article by Beth McMurtrie published in The Chronicle of Hgher Education in January. He also offered to take the archive into his possession in order to keep it from law enforcements, risking jail for the sake of research.

Initially on the same page as McIntyre, BC attempted to protect the files, appealing the subpoenas several times. As proceedings continued, the administration decided to distance itself “from the reckless rhetoric of Ed Moloney and Anthony McIntyre,” as Dunn put it in an interview with McMurtrie for the aforementioned article.

While BC was distancing itself from McIntyre and Moloney after the second subpoena, Senators Chuck Schumer, Scott Brown, and John Kerry, along with six other congressmen, wrote to then-Secretary of State Hillary Clinton calling for a withdrawal of the subpoena.

And the students of BC remained silent, uninformed. When I questioned my peers about the project, I got the resounding response, “What’s that?”

As academics across the nation followed the fate of these tapes this spring, where were the BC students?

It is our full-time job as students to learn, to immerse ourselves in the pursuit of knowledge. We are the next generation of researchers. And yet, there were no big conversations on campus about the project that might redefine future research. Why weren’t we concerned with the questions circling our campus, the future of our own academic freedom?

Furthermore, why has BC refused to be open with its students about the project? The University never participated in a dialogue with students over the legal disputes.

The Belfast tapes case raises many questions. What degree of freedom should academic research have? How responsible are researchers and their universities in protecting interviewees who reveal sensitive information? At what point does the pursuit of justice supersede the pursuit of truth and knowledge?

I am not suggesting that the student body of BC had the ability to decide the fate of these tapes, but we should have at least known and taken part in the discussion.

Despite McIntyre’s efforts, the relevant tapes were turned over. “There has been a shadow cast over this type of research,” Richard English, a professor of politics at the University of St. Andrews in Scotland, told The Chronicle for the aforementioned article. Many scholars, English said, have expressed apprehension about pursuing projects like this, for fear of it coming to naught. The Belfast Project is dead now—there will be “no more books, no more revelations,” as McMurtrie put it in her article. And for McIntyre, “It is the single most devastating thing that ever happened to me,” he told The Chronicle. “It can never be used now. It’s all done for nothing.”

Say Anything: The DOJ Comes Clean on Retribution

“The public release of such allegations could have ramifications in a foreign country which are not fully appreciated here.”

Say Anything: The DOJ Comes Clean on Retribution
Chris Bray
Tuesday, September 16, 2014

For government lawyers, truth can be a contingent, situational, and highly malleable idea. And today we have new evidence of that fact.

Three years ago, when Boston College filed a motion in a federal court to quash subpoenas of Belfast Project interviews, Assistant U.S. Attorney John T. McNeil flatly rejected the idea that the release of those interviews from a protected academic archive might endanger people involved in the project. You can read McNeil’s July 1, 2011 brief here. But here’s the relevant passage, from pg. 2:

While the Respondents make other equitable and factual claims, including the claims that the researchers will face retribution and that the disclosure of the materials will threaten the political stability in Northern Ireland, those claims falter in the face of close scrutiny. The researchers themselves, and the subject of the interviews, widely publicized their involvement in this oral history project long before the subpoenas in this case were issued. Moreover, the Respondents’ decision to publicize the issuance of the subpoenas – which had been kept under seal by the United States – belies any claim of such risk. If there were a substantial risk of retribution, the Respondents’ efforts to publicize the subpoenas would compound the purported problem, rather than mitigate it.

So the release of Belfast Project interviews would be no big deal: no risk to the political stability of Northern Ireland, no risk of retribution for people involved in the project. No good reason not to pry open the archive, your honor. No danger at all. They made this claim often and loudly; see also this example.

This week, Assistant U.S. Attorney John T. McNeil filed two documents with the same court — a brief, and a supporting declaration — to argue against a federal judge’s proposal to publicly release documents filed under seal in the matter of the Belfast Project subpoenas. Why? Because, ladies and gentlemen, the release of material related to the Belfast Project endangers witnesses and might subject people to retribution.

Same prosecutor, same case. The material should be released, because warnings about retribution are silly; the material must not be released, because it’s dangerous and people will get hurt.

Here’s a link to the brief; the relevant language is on pg. 2, where McNeil writes that British officials “continue to seek that the materials remain impounded to ensure that evidence (both testimonial and documentary) is not destroyed or altered, and to ensure that witnesses and investigators are not subject to harassment, reprisals or tampering.”

And here’s a link to the supporting declaration, where McNeil writes that “the release of such information could unfairly impugn the reputation of those witnesses and suspects, or subject them to retribution.”

Suddenly, three years later, the Department of Justice says the release of documentary material related to the Belfast Project threatens to subject people to retribution.

So what does that say about the decision to pry the interviews out of the archive in the first place?

See: Threats to Researcher and Research Participants

Old Wounds & Oral History: The Aftermath of the Belfast Project

Old Wounds & Oral History: The Aftermath of the Belfast Project
The Kojo Nnnamdi Show
WAMU.org
Wednesday, Jul 9, 2014

Boston College’s “Belfast Project” aimed to compile first hand accounts of the Troubles in Northern Ireland, collecting the oral histories of 46 former combatants with the promise of confidentiality. But after British prosecutors compelled the college to hand over contents from the archive, and detained a prominent political leader for crimes allegedly committed in the 1970s, many observers are worried the tapes could destabilize the country’s peace agreement. We explore the debate in Belfast and within American academic institutions.

Guests
Zachary Schrag
Associate Professor, Department of History and Art History, George Mason University; Author, “Ethical Imperialism: Institutional Review Boards and the Social Sciences, 1965-2009” (Johns Hopkins)

Kevin Cullen
Metro Columnist, The Boston Globe; co-author, “Whitey Bulger: America’s Most Wanted Gangster and the Manhunt That Brought Him to Justice


MR. KOJO NNAMDI
From WAMU 88.5 at American University in Washington, welcome to “The Kojo Nnamdi Show,” connecting your neighborhood with the world. Later in the broadcast, we talk with journalist Louisa Lim about her new book, “The People’s Republic of Amnesia: Tiananmen Square Revisited.” But first, three decades of violent conflict in Northern Ireland, known as the Troubles that pitted the Nationalist Catholic Irish Republican Army or IRA against Protestant loyalists under the banner of the Ulster Volunteer Force or UVF, came to a tenuous end in 1998.

MR. KOJO NNAMDI
But the tensions and traumas of the time have remained close to the surface in Belfast, a fact driven home earlier this year when Gerry Adams, a long-time leader of Sinn Fein, the nationalist political party, closely linked the IRA, was arrested by police and questioned about the 1972 murder of a mother of 10. A move fueled by police in Northern Ireland, getting hold of information from an oral history project out of Boston College. An idea with altruistic goals but plagued with problems.

MR. KOJO NNAMDI
Here to bring us up to speed on the fallout and to help us understand the implications is Zachary Schrag. He’s a professor in the Department of History and Art History at George Mason College. His books include, “Ethical Imperialism: Institutional Review Boards and the Social Sciences,” and “The Great Society Subway: A History of the Washington Metro.” Zachary Schrag, thank you for joining us.

MR. ZACHARY SCHRAG
Delighted to be here.

NNAMDI
Joining us by phone, from Boston, Mass., is Kevin Cullen. He’s a Pulitzer Prize winning journalist and a Metro Columnist for The Boston Globe. He’s also co-author of “Whitey Bulger: America’s Most Wanted Gangster and the Manhunt That Brought Him to Justice.” Kevin Cullen, thank you for joining us.

MR. KEVIN CULLEN
Thanks Kojo.

NNAMDI
Kevin, Boston, which as you note, has long been seen as a moderate, so-to-speak, base of Irish-America. It may seem a natural home for a project, chronicling the troubles. What were the aims of this Boston College Project and who was behind it?

CULLEN
Well, first of all, it — the genesis of it was, sort of, in the heady days, right after the Good Friday Agreement of 1998, ended the troubles as we knew them. And the idea was to create an oral archive to go and talk to the combatants, the people that fought and were willing to kill and were willing to die for what they believed in, at the time.

CULLEN
And so it was conceived that they would, you know, hire people on the ground, in Northern Ireland, who could get to these former combatants, interview them, record what they say and place it in an archive here at the Burns Library at Boston College, which is the biggest repository in the United States for Irish related issues. And the idea would be, it eventually, historians, journalists, people interested in this would read it after all — everybody that was involved in it had long since past. And that we might learn about the motivations, conflict and how conflict is resolved.

CULLEN
Unfortunately, there was a book published by the project director, Ed Moloney in 2010, which kind of signaled the fact that they had these interviews, they’re very specifically, the book was based on the interviews given by David Irvine, who was a leading loyalist, paramilitary, before he became a politician and Brendan Hughes who was known as the Dark. And he was a senior IRA man, very close to Gerry Adams at one time but then had a falling out with him over the direction of the peace process.

CULLEN
And in that book, Brendan Hughes implicated Gerry Adams in the murder and the abduction-murder and secret burial of Jean McConville. Eventually, the police and the — I think, the timing of all this is very questionable. The police decided they wanted that evidence, they thought that that could help them solving the murder of Jean McConville, 40 years after it happened. And that — thus began the, sort of, tug-of-war, pitting the issues of academic freedom, criminal investigation and, frankly, the political prosecution of cases of the past.

CULLEN
A lot of what this comes down to is, the Boston College Project, I think, was well intentioned. It hoped that it could somehow contribute to the understanding of conflict and hopefully, you know, promote resolution of conflict and maybe even the prevention of conflict. Instead it has become a political football and you have the case, I think, very disturbing case, of an American academic institution being used as a proxy investigative arm of a foreign government.

NNAMDI
But one technicality here, if you will, and that is, Gerry Adams, it is my understanding, was in favor of the project but he was not in favor of the individuals to whom it was entrusted because he felt that they would bring a bias view to their presentation.

CULLEN
That’s true, he believes, as do many people in the Republican leadership, that Ed Moloney, the journalist, who was the project director and Anthony McIntyre, a former IRA prisoner, who did the research, who did the actual interviews of these people, they believed that they are bias, that they are opposed, that they have been on the record as being hostile to Adams and the rest of the leadership of the Republican movement. As Adams sees it, there’s no way that these guys would not ask leading questions. They would not — they would shape the research to get to a — get to a point where they want it to be.

CULLEN
The one thing I found interesting, when I was in Belfast, last week, in talking to some of the people that gave their interviews, yeah, they openly acknowledge that they don’t agree with Adams and the direction he took the Republican movement. But they said, that’s irrelevant to their history. The way they view it, if BC did not record their history, they would never — know one would know what they think because they fall outside the mainstream of Republican thought, these days.

CULLEN
So they are, sort of — they’re not dissidents in the sense they endorse the dissident groups that are carrying on violence now, but they’re certainly dissidents in the sense that they don’t agree with what the Republican leadership settled for. And they feel as though it’s very important that their side of the conflict is recorded for history.

NNAMDI
Well, it was recorded for history but as Zachary Schrag, in most coverage, we’ve heard this collection at BT — BC, referred to as an oral history project. But that description may be it glosses over a very important fact, and that is, that the people conducting these interviews that were mentioned earlier, were not oral historians. Why is that important?

SCHRAG
Right. So this was a project designed to document history but it was not a project run, for example, by the Boston College History Department. And, in fact, the history department at Boston College has been rather public in its dismay that it was not brought in. The interviewers at Moloney is journalist, the other interviewers, I believe, both have doctorates in political science, clearly these are related fields. But it does not necessarily flow that they were aware of the training in methods of oral history that go back several decades, since the historians started picking up tape recorders.

SCHRAG
And this is not to say that historians have a lot of experience with subpoenas. We do have presidents where political scientists and sociologists have their interviewed subpoenaed and had people been more aware of this, then maybe they would’ve taken more precautions. But I do think it would’ve been possibly helpful to have more historians involved in the process, talking it over. As it is, neither the interviewers nor the Boston College librarians were able, between them, to work out all the implications of their plans.

NNAMDI
Among oral historians, you just implied by saying what the Boston College History Departments responses, but among oral historians, this case has been closely watched. And you say, that some people are trying to distance themselves from the BC project, why?

SCHRAG
Well, in an interview with the chronicle of higher education, Mary Marshall Clark of Columbia University, who’s certainly one of the leading oral history experts, repeatedly said this was not an oral history project. And, I think, what she meant by that was that there are, again, methods developed over the decades to try to avoid this kind of situation where promises are made and not kept. For a long time, oral historians have tried to offer narrators the option of sealing parts of their interviews, so that if there’s something that they think should be part of the historical record but are not quite ready to go public with, right then, it can be sealed for a matter of decades.

SCHRAG
Now, again, we’ve not had a lot of experience in the profession with actually subpoenas coming in and so even if a bunch of expert archivists and historians had gotten together on this, it’s not entirely clear to me that they would’ve been able to come up with workable safeguards to allow this project to go forward.

NNAMDI
If you have questions or comments for it, you can call us at 800-433-8850. What do you make of this BC project and the unintended consequences that it has had, 800-433-8850? You can send email to kojo@wamu.org or send us a tweet @kojoshow. Kevin Cullen, in the last decade, Belfast has changed dramatically in some ways and stayed much the same in others. What did you find in both respects on your recent visit?

CULLEN
Well, I mean, I’ve been going there for almost 30 years. So I kind of knew it in the bad old days and certainly from a cosmetic point of view, Belfast is shiny and new. I was so struck by the Fitzwilliam Hotel, which is just shear plate-glass window. And that would’ve been sheer folly to have that thing up in the ’70s and ’80s.

NNAMDI
When bombs are going off everywhere.

CULLEN
Yeah. It just was — I mean, I actually — some of the richest people I met in Ireland, over the years in the North of Ireland, were glaziers because they’re very busy during that stuff. But it — the, sort of, underlying problems in that society, particularly, one of segregation, has not changed much in the year since the Good Friday Agreement. In fact, the, sort of, ironically named Peace Lines, they put walls up to separate working class republican nationalist areas from working class loyalist areas.

CULLEN
They’ve actually increased in numbers since the Peace Agreement. They’re many — I think, there are probably three or four dozen of them that have gone up in the intervening years. You know, it — when the Peace Agreement was signed in 1998, about five percent of kids in Northern Ireland went to integrated schools. That number has not changed one iota in the intervening years. So there’s sort of a — here in America, you know, in the Brown vs. Board of Education case, our Supreme Court made it very clear that separate but equal was not acceptable in the United States, under our Constitution.

CULLEN
But in fact, that is exactly how the society functions in Northern Ireland now. It is separate but equal. You know, there’s equal funding given to Catholic schools and state schools, which for all intensive purposes are Protestant schools. And the other thing that I really picked up on the ground, in there, is you know, when people talk about, you know, the North of Ireland, is this sort of, textbook case of how attractable conflicts can be resolved. That’s true as far as getting to say yes, in 1998.

CULLEN
But they really struggled since then to figure out how to deal with the legacy issues, to deal with the past. And I think the BC dilemma or conundrum, whatever you want to call it, debacle, fits into — with this micro — it’s a microcosm of the society not being able to confront, unlike, say, in South Africa where they had a very formalized truth and reconciliation process. They don’t have one in Northern Ireland and it shows. So you’ve had Peace Mail investigation, say, it’s a bloody Sunday and to different individual killings and controversy’s.

CULLEN
And then you have the BC thing with, sort of, this attempt at, well let’s put it out there and maybe historians will make sense of it down the road. And obviously that went to pot. But I think, it also, the reason it happened is that the Irish have not been able to figure out who gets to decide what their legacy is and who tells that story. And really, the stuff that I picked up on the ground, this was — this was really, even though it is a problem in the loyalist community, it’s much — a much bigger problem in the Republican community because there are Republicans fighting over who gets to tell the story.

CULLEN
And it’s obviously Sinn Fein is the mainstream, the political power. And then you have these people that have fallen away from that group and who actually resent that group. And so, that’s why the arms struggle of Irish Republicanism has been replaced by a legacy struggle.

NNAMDI
Gotta take a short break. When we come back, we’ll continue this conversation on Boston Colleges oral history project and the Troubles in Northern Ireland. But you can still call us at 800-433-8850. What kind of rigor and standards do you think should be applied to oral history projects, 800-433-8850? You can send email to kojo@wamu.org, I’m Kojo Nnamdi.

NNAMDI
Welcome back to our conversation on the Boston College oral history project and the troubles in Northern Ireland. We’re talking with Kevin Cullen. He’s a Pulitzer Prize-winning journalist and a metro columnist for the Boston Globe. He’s co-author of “Whitey Bulger: America’s Most Wanted Gangster and the Manhunt That Brought Him to Justice.” He joins us by phone. Joining us in studio is Zachary Schrag. He’s a professor in the department of history and art history at George Mason University whose books include “Ethical Imperialism: Institutional Review Boards and the Social Sciences,” and “The Great Society Subway: A History of the Washington Metro.”

NNAMDI
Kevin, Gerry Adams’ address in May may have made international headlines but with conflicts raging around the world, it has since faded for many but not all. What kind of ripple effect is it having in Belfast?

CULLEN
Well, I think people are curious to see if in fact this is just, you know, a political show to drag him in before the elections. Frankly if it was an attempt by police to embarrass him, it had the opposite effect. Sinn Fein’s vote was surprisingly much better than expected, both in local and European elections, both north and south. So there is always that sort of tendency when the British authorities — or in this case, you know, the Police Service of Northern Ireland — when they are seen to do something that is seen as unfair, that will help Sinn Fein, not hurt it.

CULLEN
That said, I think people are sitting back and saying, are they going to charge him? And if in fact they do charge him, I think there could be a serious effect on the peace process if only it will allow the people that are trying to kind of radicalize a new generation to take up arms. They would — their hand would be strengthened. They would be able to go to young people in Northern Ireland and say, hey look at this the Sinners did everything the Brits asked them to do and look what the Brits are still doing to them. And they’re not — there’s a real level of hypocrisy that I’ve heard people talk about.

CULLEN
You know, the police agency that is demanding access to the entire oral history archive at Boston College refuse to submit their own records to the police ombudsman’s office which is trying to conduct an independent review of at least 60 cases in which police offices and British military officials were accused of extrajudicial killings during the troubles.

CULLEN
So, you know, you talk to people on the ground there, both in Republican and Loyalist camps, they say, oh yeah, the cops want to come after us but they won’t go after themselves. And so there’s a lot of frustration at that level.

NNAMDI
Do have to mention the presence of the British, which is what Brendan in Vienna, Va. would like to remind us of. Brendan, your turn.

BRENDAN
Kojo, thank you. You have a fascinating program today. I’m a George Mason University history graduate and Irish American, so a great show today. Yes, wanted to comment on the fact that in the introduction you mentioned a conflict between the Loyalist paramilitaries and the IRA. Just want to add that a man combatant would be the British Army in Northern Ireland who the IRA would certainly argue that they were in conflict with as part of a national liberation struggle to unite Ireland.

BRENDAN
And also wanted to comment on the — since you mentioned the Loyalist paramilitaries on the collusion between the British government, the British Army and the Loyalist paramilitary. And I’ll take my comments off the air.

NNAMDI
Thank you very much for your call. Kevin, the violence may have subsided but you note that language remains loaded in Northern Ireland. And sharing even an intensely personal story from the time can be dangerous. Explain to us what a tout is and what can happen to someone labeled as one.

CULLEN
A tout is the local slang for an informer. And it is probably the most provocative loaded term anywhere in the North of Ireland. And throughout the troubles, you know, touts would turn up with hoods over their heads, their hands tied behind their back and at least one bullet in their head. And it was obviously the most ignominious end for anybody in those circumstances.

CULLEN
And Irish history is replete with, you know, the whole — the specter of the informer hangs over so much of Irish rebellion down through the centuries. And so after Gerry Adams was arrested in May, graffiti appears all over parts of Belfast. And it said, Boston College touts, the implication being anybody who took part in the Boston College project was touting because they were talking about IRA operations.

CULLEN
Now I spoke specifically with two people who had been identified publically as having given interviews to BC. One is Ricky O’Rawe who was actually the spokesman for the hunger strikers in 1981. He was one of the blanket men who refused to wear prison uniforms when he was doing his time for IRA activity. Other fellow I talked to is Tommy Gorman, another IRA veteran I think spent about 13 years in prison for IRA activity, Escaped from prison twice.

CULLEN
They saw that as a direct threat on their lives. They believe that there are people, the erstwhile comrades who would consider themselves justified in killing them because the touted. That’s the way it’s being seen. And again, in the story I told — and this is — I didn’t even know about the story and, I mean, I had — I’m in Northern Ireland pretty regularly, but I somehow missed this one.

CULLEN
A few years ago a guy named Gerry Bradley who was a member of the IRA in North Belfast, he wrote his own book and he did not vet it. He did not send the manuscript for vetting with the Republican leadership. And after his book came out — and Jerry — in an interview he gave he said, you know, I didn’t name anybody. This was my story and I didn’t submit it for — I’m not going to have my story censored. And very shortly after the book came out, it appeared on the walls in the (word?) which is the neighborhood where Jerry lived. And he was accused of being a tout. And he eventually left his neighborhood and was despairing and he killed himself.

CULLEN
So there are real implications for this word and it’s thrown around kind of willy-nilly in circumstances like this. There are people pointing fingers at each other and publically accusing each other of being touts. And again, that is a word that carries enormous consequence in the North of Ireland.

NNAMDI
Zachary Schrag, these tapes contain narrators implicating other in acts of violence, which raises all kinds of murky questions about slander, about liable. What recourse, if any, do those who took part in the project likely have?

SCHRAG
Well, unfortunately there’s not good law right now. So Boston College has sent back the interviews to those it can. And Mr. Cullen’s article describes one set of interviews being burned by the person who gave it. In the long term we do have federal protections for some kinds of research, if you’re doing health research, for example, with sex workers or drug users who you know they commit crimes but you’re trying to do public health research, you can get protections from subpoena for that.

SCHRAG
If you want to research criminals and are willing to burn the tapes afterwards, you can get shield law protections from the Department of Justice for that. But what we don’t have in U.S. federal law are broader protections where people doing this kind of research could really guarantee that the materials would not be released under subpoena. And until we have that we can’t get the kind of reconciliation that Mr. Cullen talked about.

NNAMDI
As a journalist on a live broadcast, I ask a guest a question, you answer it. That answer’s out there for everyone to hear, maybe read at a later date, whether it’s tomorrow, five, ten years from now. But oral history works on a very different set of assumptions and procedures with a very different end in mind. The saying goes that journalists write the first draft of history, so what needs to happen to create a final or more definitive draft?

SCHRAG
Well, ideally in an oral history project you go to a narrator, go back and forth multiple times, you do a recorded interview, you transcribe it, the narrator reads it, maybe adds some things, takes out some things. And what you’re trying to do is to get a polished finished narrative that the narrator thinks really represents his or her experiences in position. And that will last as an archive. It’s almost like writing a memoir only without limiting it to the relatively few people who have the time and money and resources to actually publish a memoir.

SCHRAG
The problem, again, is that if there are going to be people coming into that process, either through subpoena, Freedom of Information Act requests, which is a problem for those of us who work at public universities, then that bond between interviewer and narrator is broken. And the narrator can’t be as candid as he or she would like. And you have to limit things to what’s on the record.

SCHRAG
Fortunately for most oral history projects that’s fine. Most oral history projects are not about unsolved murders but it’s still unfortunate that we have this kind of project hanging over us and perhaps deterring future research.

NNAMDI
Kevin Cullen, the nature of truth and memory issues of ownership of a story, who gets to write the history, all central to this current conflict. As a journalist who’s covered both international conflicts and written about the havoc wreaked by Whitey Bulger in Boston, what do you make of the chilling effect that remains in this case and so many decades after the fact?

CULLEN
Well, all I can tell you is the people that I interviewed who gave interviews said they would never in a million years have agreed to do it if they thought their stuff could come up before they died. They really — now, you know, we can go back and forth of whether BC was clear enough on this, whether the project director and the interviewers were clear enough on it to the people. But there’s no doubt in my mind talking to these people that they thought it was not going to come out until they were dead.

CULLEN
And so will it have a chilling effect? I would think it would have to. I would think any time you approach somebody and asked them to detail what is essentially the violation of laws or committing crimes, even if they would justify it as, you know, an act of war, an act of, you know, natural self determination, they would be — I would think they would be very cautious. They would point to this case. UI think it’s, you know, unmistakably true that this is a test case, that this has set a precedent. And I would say it set a very, very bad precedent. I think it’s bad for oral history. I think it’s bad for conflict resolution.

CULLEN
Because I remember, you know, there are guys on the Loyalist side I talked to, they really thought they were doing a public service. They thought they were helping people down the road. If people could see why they did what they did and also explain why they stopped when they stopped that lessons — valuable lessons about conflict and conflict resolution would be imparted. And now they feel that was all for naught. And as Plum Smith, one of the leading Loyalists puts it, he says, I don’t think anybody would ever sit down and give a candid account in a case like this again.

NNAMDI
Well, Kevin, Northern Ireland’s peace process did not end with a Good Friday agreement or the 2006 amendment to it. Gerry Adams as part of a Sinn Fein delegation sat down with Prime Minister David Cameron last week. Where, in your — looking in your crystal ball, do you see the continued process going next?

CULLEN
Well, first of all, I don’t think it’s likely that we would go back to armed conflict. I mean, there are dissident groups on the ground, at least on the Republican side, who believe that they have the right to engage in armed struggle. That said, I think those days are really gone.

CULLEN
The other part of this is obviously that you can always reignite issues in Ireland with — if people are seen to be treated unfairly. And that’s why potential prosecutions that arise from this, I think, could have a dramatically detrimental effect on the peace process. But I think the other thing is, this issue of the past and dealing with it, I think it’s something that this society hasn’t really taken formal steps to handle with. The piecemeal nature of truth recollection or truth recovery I think has actually had a negative effect.

CULLEN
And unfortunately, you know, there is no Mandela in Northern Ireland. There is no archbishop Tutu. There is no person that you could point to as sort of being the arbiter of how we’re going to handle this. I mean, Richard Haass from the United States government is actually over there, and Megan O’Sullivan from Harvard. And they’ve been trying to help the Irish deal with their legacy issues. How do they deal with the past? How do Unionists celebrate their traditions without offending Nationalists and vice versa?

CULLEN
So I think this is something that’s going to go on. We’re in a post-conflict situation in Northern Ireland. And I think it’s that old truism. Sometimes it’s harder to keep the peace than to make the peace. And there are a lot of, a lot of struggles that this society has in front of it. And hopefully they will get through it.

NNAMDI
And I’m afraid we’re just about out of time. Kevin Cullen is a Pulitzer Prize-winning journalist and a metro columnist for the Boston Globe, co-author of “Whitey Bulger: America’s Most Wanted Gangster and the Manhunt That Brought Him to Justice.” Kevin, thank you for joining us.

CULLEN
Thank you, Kojo.

NNAMDI
Zachary Schrag is a professor in the department of history and art history at George Mason University. His books include “Ethical Imperialism: Institutional Review Boards and the Social Sciences,” and “The Great Society Subway: A History of the Washington Metro.” Zachary Schrag, thank you for joining us.

SCHRAG
Thank you.

No Grounds for Citing SAA

No Grounds for Citing SAA
Anthony McIntyre
The Pensive Quill
2 July 2014

A letter submitted to the Times Higher Education but not published as Ed Moloney, former project director of the Belfast Project, had written earlier and his letter was published.

In his article Oral history: where next after the Belfast Project? (THE 5 June 14) Jon Marcus claimed:

An investigation by the Society of American Archivists has found that the researchers made promises of confidentiality that went further than university lawyers had advised.

The investigation cited was nothing short of appalling deficiency in that it churned out a “litany of incontestable mistakes”. It is regrettable that Jon Marcus did not make clear that the SAA investigation he cited has since March 2013 been “under review” because of complaints about it.

He therefore had no grounds to cite it.

The SAA ‘investigation’ wrongly claimed that project staff (I was the interviewer):

made additional written promises to participants in the oral history project that went beyond those offered by Boston College but … did not disclose to participants that these additional assurances were made on behalf of the project staff and did not represent the position of Boston College.

I responded at the time stating that this was so:

demonstrably false and misleading that only with extreme reluctance could it be accepted as something issued in good faith. Not a scintilla of evidence for such a bald  has been forthcoming. Where is the evidence that the researchers ever gave ‘additional assurances’ to the participants? 

Don’t hold your breath waiting on the SAA to come up with an answer. It won’t.