Ed Moloney Statement On Belfast High Court Judgement In Anthony McIntyre Case

Statement On Belfast High Court Judgement In Anthony McIntyre Case
Ed Moloney

The judgement by the Belfast High Court today upholding the PSNI-Boston College action to confiscate the tapes of interviews given by the project’s republican co-ordinator and principal interviewer, Anthony McIntyre comes as no surprise to those of us who have witnessed this process since it began over seven long years ago.

But with this action against McIntyre, the reality of what lies behind the PSNI action against the Boston archive is now clear for all to see.

At the outset, the authorities argued that the action to confiscate the Boston tapes was justified on the basis that they might lead to some light being shed upon the abduction and disappearance of Jean McConville, a widowed mother-of-ten who was accused by the Provisional IRA of spying for the British Army.

But Anthony McIntyre had nothing whatsoever to do with the McConville disappearance as everyone on this island knows.

His real offence, in the eyes of the state and the intelligence agencies that it directs, was to embark upon an independent effort to discover the truth, or as much of it as can be excavated, about the role played by one of the major players during the Troubles. This was done without the knowledge or approval of that organisation’s leadership, and that was possibly his real offence.

In doing that, with my aid and co-operation, he challenged the state’s claim to monopolise, along with trusted participants in the Troubles, the process of how, by whom and by what means the past in Northern Ireland should be examined.

That was Anthony McIntyre’s crime. That is why he is being pursued through the courts. His prosecution cum persecution is being carried out as a warning to others, in academia and the media, that this is what they can expect if they dare follow in his path.

This process has been dragged out for an unprecedented seven years. I suspect that has been deliberate and that the ongoing, never-ending Boston College (BC) case exists as a constant reminder of what can happen to anyone who dares imitate that project.

Political considerations have also dictated who the authorities have targeted. When a senior member of the BC Trustees complained about the one-sided, i.e. Republican bias of the prosecutions, the PSNI promptly sought access to ‘Winky’ Rea’s tapes in the UVF part of the archive and then charged him.

In recent weeks we have learned how MI5 and the police and military intelligence agencies devised the so-called ‘third connection’ to enable their agents to commit crimes, possibly as serious as murder, and not face any prosecution as a consequence.

This is the sort of dirty secret that the British state and its agencies are scared will emerge out of any truth-telling process that they cannot devise, direct and control.

We have also seen two television journalists involved in the production of the documentary film ‘No Stone Unturned’ arrested and questioned by detectives for the crime of doing their jobs as investigative reporters. It is hard to avoid the conclusion that the state is unalterably opposed to any who wish to investigate aspects of the past it believes should stay hidden.

Anthony McIntyre is being dragged through the courts as a warning to others: follow in his path at your peril. As acts of vindictiveness go, it has few equals.

Ed Moloney is the former director of Boston College Oral History Archive

Questions Of ‘The Utmost Gravity’ For The PSNI And Prosecution Service

Questions Of ‘The Utmost Gravity’ For The PSNI And Prosecution Service
Ed Moloney
The Broken Elbow
February 5, 2015

Yesterday in the Belfast High Court, a lawyer for the Police Service of Northern Ireland (PSNI) told a judge that the police require access to interviews allegedly given to a Boston College oral history archive by a former Loyalist prisoner, Winston Rea, because they are investigating offences of “the utmost gravity”.

But so grave are these offences, so vital is it to the well-being of Northern Ireland that they be cleared up, that the PSNI have sat on their hands for almost three years, doing absolutely nothing about them even though they could easily have begun proceedings to acquire the interviews years ago.

Only recently, in the last few months has the PSNI made any move for Mr Rea’s alleged interviews. Why?

Winston Rea revealed his involvement in the Boston College archive in an interview with Brian Rowan, a journalist with The Belfast Telegraph on January 3rd, 2012. That is three years ago. The PSNI have had all that time to lodge a request with the US Department of Justice to obtain the interviews but they did not. Why not?

The PSNI only applied for Mr Rea’s interviews in September 2014, some two years and nine months after the Loyalist disclosed his involvement in the Boston project. They have had nearly three years in which to pursue Mr Rea but only now have they moved against him. Why?

And what has Mr Rea disclosed publicly about the content of his alleged interviews? He told The Belfast Telegraph simply that he wanted his interviews returned to him. So did another Loyalist, William ‘Plum’ Smith who was hiring a lawyer to request his own interviews back.

This is what Mr Rea told Brian Rowan:

“If the (Smith) test case wins it becomes a domino effect for others wishing to have their material returned to them. If I was asked to make a contribution to further student education projects, unfortunately I would have to seriously consider it.”

That is the sum of what Winston Rea has said publicly about his alleged interviews with the Boston Project. Nothing at all about their alleged contents. Nothing to suggest that he talked about offences of “the utmost gravity”.

The PSNI know no more about the contents of the interviews than what he said to The Belfast Telegraph; the PSNI know no more about the contents of the interviews than the average shopper on Royal Avenue. The attempt to obtain his interviews is simply a fishing expedition which threatens the integrity of the judicial process.

The PSNI action can be summarised thus: “Mr Rea has past form for Loyalist activity. He gave interviews. Ergo he must have talked about matters of the utmost gravity. Give us the interviews”. That is called a fishing expedition and that such a sordid tactic has been countenanced by the legal authorities in Northern Ireland is deeply, deeply disturbing. Should it succeed then alarm bells should ring loud and clear.

In a previous posting I suggested that the move against Winston Rea was nothing more than a cynical attempt to balance the pursuit of Republican interviews allegedly concerning the disappearing of Jean McConville with some Loyalist interviews. Mr Rea, having publicly disclosed his involvement and being the son-in-law of the late Gusty Spence was the ideal AND convenient candidate. The fact that he disclosed his involvement, and only that, is the reason why the PSNI are pursuing him.

Back in April of 2014, Thomas P O’Neill III, a son of the former House Speaker Tip O’Neill, a Trustee Associate of Boston College and a former member of the college’s Board of Trustees, wrote an op-ed for The Boston Globe in which he complained:

“….why, when both sides in the Troubles were guilty of so much wrongdoing, is the British prosecution seemingly intent on only pursuing crimes allegedly committed by only one side?”

Is this effort to obtain Winston Rea’s interview then, an attempt by the PSNI and by the North’s Director of Public Prosecutions, Barra McGrory to satisfy a complaint from the Irish-American establishment that the British are not being even-handed in their pursuit of Boston College’s archive, that if only they included a high profile Prod in their net everything would be fine? Is the judicial process to be manipulated in this sort of way for narrow political gain?

And if that is the case, what has Boston College’s role been in all this? Is it just a coincidence that one of their former Trustees made a complaint upon which the PSNI are now acting?

For reasons that I cannot discuss, I cannot disclose all that is happening in the background. But soon enough, I hope myself and others will be able to speak more freely. Watch this space!

Ed Moloney: Boston College and Me

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Who’s Quashing Who?: The Battle Between Scholars and Subpoenas

Who’s Quashing Who?: The Battle Between Scholars and Subpoenas
Julie RosingFN1
Kentucky Law Journal
University of Kentucky College of Law
June 2014

Download PDF Version


Last year the First Circuit’s decision in United States v. Moloney, requiring two scholars from Boston College to forcibly disclose their confidential research, shocked the academic world.FN2 This high-profile subpoena case brought the idea of a “scholar’s privilege” to the forefront of the legal arena once again. The outcome of the case—the forcible disclosure and the denial of the scholar’s motion to quash – was not, by itself, all that surprising.FN3 But the vague, general lack of analysis on which the First Circuit denied the assertion of a “scholar’s privilege” was indeed both shocking and inappropriate.

There are two questions that must be answered to clear up ambiguities in this hybrid problem of evidentiary and constitutional law. The first is whether a scholar’s privilege does or should exist. The second is if the scholar’s privilege does exist, how can the courts uniformly apply the privilege?

This note advocates that the scholar’s privilege should exist as a qualified privilege. This note further advocates that the circuits should reject their current arbitrary use of the privilege and instead apply a balancing test that accounts for the interests of both the academics attempts to protect their research and the party seeking disclosure. Although the Supreme Court of the United States denied certiorari to United States v. Moloney, the issue of the scholar’s privilege will not fall by the wayside. The time has come for a definitive, specific ruling on the issue. We must find a better way for scholars and subpoenas to co-exist.FN4

I. The Existence and Evolution of the Scholar’s Privilege

The scholar’s privilege stems from the long-standing and hotly debated concept of a “reporter’s privilege.” The Supreme Court struck down this privilege in Branzburg v. Hayes.FN5[5] In 1972, Branzburg held that there is no absolute reporter’s privilege available under the First Amendment for reporters to refuse to answer questions or be subpoenaed in a grand jury proceeding. Circuit courts have split for years over the correct interpretation of Branzburg.FN6

Some circuits, such as the Sixth circuit, apply Branzburg’s holding rigidly, allowing absolutely no reporter’s privilege in any circumstance. In other circuits, like the Third Circuit, Branzburg does not control. The First Circuit has restricted the Supreme Court’s decision to its facts, implying that “[i]t seems a moot point now to argue that there is no reporter’s privilege in the federal courts.”FN7 But, the First Circuit has also developed a vague balancing test to determine applicability of the privilege. Several other circuits have adopted their own variations of balancing tests—but no uniform standard has been propounded beyond Branzburg.

The circuit split is not surprising when considering that Branzburg’s holding did not command a majority. Even more notable is Justice Powell’s concurrence and the dissenting opinion, stating “express support for recognizing a qualified newsman’s privilege,” which further bolstered the privilege’s strength.FN8

From the uncertainty of the application of a reporter’s privilege sprang further uncertainty when scholars began challenging subpoenas in the research context. The scholar’s privilege has not been as frequently litigated as the reporter’s privilege until recently.FN9 These cases vary factually, and scholars have only succeeded in quashing subpoenas in a few, narrowly construed factual anomalies.

The dilemma of the scholar’s privilege spans two legal subjects: evidentiary law and constitutional law. Critics of recognizing reporters’ and scholars’ privileges take the evidentiary angle. These critics argue that because the privileges are not included in the Federal Rules of Evidence, the Supreme Court has rejected their existence and therefore, their application.FN10 Proponents fight for “the constitutional guarantees of free expression, privacy, and defendant’s rights,” which they believe justifies recognition of a testimonial privilege to protect the researcher-subject relationship.FN11

Further, although many parallels can be drawn between the reporter’s privilege that was denied in Branzburg and the idea of a scholar’s privilege, there is also at least one notable difference—reporters may have an additional route for protection via reporter shield laws.FN12 Markedly, no states have legislated to protect the researcher in a similar manner as reporter shield laws. Therefore the scholar’s privilege is essentially the only protection that scholars may have.

The First Circuit has been confronted with the scholar’s privilege on a number of occasions, most notably is the In re Cusumano v. Microsoft Corporation case. Cusumano held that interview information collected by two scholars for a book was privileged from discovery.FN13 Although a scholar’s privilege is admittedly created in this case, the holding remains narrow: “[i]t would be extravagant to read the case as establishing any broad ‘scholar’s privilege.’”FN14 Through this ruling, research is clearly proven to be a special endeavor, deserving protection by at least a qualified privilege.FN15 However, the First Amendment balancing test applied in this case leaves much ambiguity, leading critics to the conclusion that Cusumano may have been a fluke decision.

The traditional balancing test that the First Circuit has adopted requires a court to “place those factors that relate to the movant’s needs for the information on one pan of the scales and those that reflect the objector’s interest in confidentiality and the potential injury to free flow of information that disclosure portends on the opposite pan.”FN16 Essentially the need for disclosure of the information is balanced with confidentiality and First Amendment guarantees. The factors to be used on both sides of the balancing test are not explicitly identified, creating room for varying interpretations and inconsistent decisions.

II. The Moloney Decision

Most recently, the First Circuit was again confronted with the issue of the scholar’s privilege and the incomplete balancing test in United States v. Moloney, when two researchers from Boston College were subpoenaed and required to disclose confidential interviews regarding their work on the Belfast Project.FN17 The Project consisted of taping oral interviews from recollections of members of the Provisional Irish Republican Army, the Provisional Sinn Fein, the Ulster Volunteer Force, and other paramilitary and political organizations involved in the “Troubles” in Northern Ireland from 1969 on.

British authorities sought the interviews of Brendan Hughes and Dolours Price (former Irish Republican Army members) who were implicated in the 1971 abduction and execution of Jean McConville, a suspected British informant.FN18 The crux of the case lies in the fact that the Belfast Project scholars made explicit promises of confidentiality that the interview contents would be protected until the deaths of the interviewees. Since Hughes was dead at the time disclosure was requested, there were no problems with introducing his interview testimonial in court. The only issue was whether Price’s confidential testimonial could be disclosed because their confidentiality agreement had not ended at the time of the First Circuit decision. However, an interesting and surprising twist occurred while the case was wading in the uncertain cert-pool: Dolours Price was found dead in her home from an apparent drug overdose in January 2013. It is unclear as to whether this living vs. dead distinction affected the Supreme Court’s decision to deny certiorari in April.

The application of the balancing test in Moloney is radically different than the application and outcome in Cusumano. First, the precedent from Cusumano deals with claims of non-disclosure privilege in civil cases involving private parties. Moloney is more similar to the Branzburg case, in that the matters in both cases concern disclosure in criminal proceedings.FN19 The US Government was seeking the interviews in Moloney pursuant to the Mutual Legal Assistance Treaty (MLAT) with England. Governmental and public interest seem to automatically have a higher stake in criminal proceedings, and especially where foreign treaty obligations are at issue.FN20

What is striking, regardless of the Supreme Court’s denial, is that the majority opinion of Moloney almost completely disregards the interests of the researchers. The majority does not include an analysis of the researcher’s interests other than to mention that “the fear…that disclosure might threaten their job security or personal safety or that it will simply result in dishonor or embarrassment” is insufficient to create enough of a scholar’s interest to tip the balancing scales in their favor. A balancing test is not a balancing test if one side is ignored.

Justice Torruella appeared to be concerned with the majority opinion’s lack of consideration of the researcher’s First Amendment claims:

It is one thing to say that the high court has considered competing interests and determined that the information gatherers (here, academic researchers) may not refuse to turn over material they acquired upon a premise of confidentiality when these are requested via government subpoena in criminal proceedings. It is entirely another to eagerly fail to recognize that the First Amendment affords the Appellants “a measure of protection…in order not to undermine their ability to gather and disseminate information.”FN21

Torruella concurred in the judgment of the opinion only, on alternate reasoning.

Justice Torruella’s astute observations in the Moloney concurrence call for a uniform application of the balancing test in order to fully protect the First Amendment rights of scholars, researchers, and academics. His opinion requires that the balancing test must actually perform balancing for a legitimate verdict to be reached.

III. Proposal for an Adequate Balancing Test

The balancing test that I propose is undoubtedly complex because it aims at protecting the interests of a variety of parties including: the subject, the researcher, the sponsor, the facilitator, the prosecutor, the state, and society.FN22 The test advocated here combines elements from the First Circuit balancing test from the Torruella concurrence in Moloney, and from various other circuits and lower courts, to propound a uniform standard that ultimately aims at recognizing and evaluating the interests of the scholars. I believe that this test fills gaps where the First Circuit majority in Moloney failed.

A. The First Amendment Interest: Potential Harm to Free Flow of Information

1. Qualified Individuals

The first factor to consider is whether the individuals that are trying to prevent disclosure fall under the traditional protections of the First Amendment.FN23 Reporters and academic researchers alike fall into these protections because they perform a range of conduct relating to the gathering and dissemination of information.FN24 The fact that scholarly research “provides the public with historical and analytical perspective on issues of public concern in government” demonstrates its traditional information dissemination purpose.FN25 No traditional First Amendment protection equals no potential protection under the scholar’s privilege.

Determining that scholars and researchers should receive qualified protection under the balancing test is fairly straightforward analysis from the First Amendment. Determining who qualifies as a “researcher” or a “scholar” is a more difficult inquiry. Beyond researchers and scholars, archivists should also fall into the traditional First Amendment protections. “Archivists have a professional duty to curate many types of materials, some of which contain confidential information.”FN26 However, researchers, scholars, and archivists should all be classified by their functions rather than their titles.FN27

2. Confidentiality

The next factor to consider is whether or not the information, subject to disclosure, is classified as confidential. Information available to the general public or which can be accessed through other means of discovery may not be classified as confidential. Researchers should always be careful to get express, signed confidentiality agreements from their participants with explicit statements of protection. Even if a researcher has not made an express guarantee of confidentiality to their informants, a court may be able to deny a request for discovery of raw data if it finds very strong privacy interests are present.FN28

One disturbing aspect of the balancing test as it stands currently is that even express indications of confidentiality, like confidentiality agreements between researchers and participants, may not be indicative of privilege.FN29 For instance, even though the need for confidentiality was a central and prominent aspect of the Belfast Project in Moloney, including written agreements requiring that access to the interview records be restricted until their death or upon written approval,FN30 the court still rejected the application of privilege because the researchers knew that Boston College could make no guarantees of the ability to refuse disclosure on a court order. The court cited to a failure of Moloney’s donation agreements, but referenced Branzburg to reassert that even promises of confidentiality made in express confidence do not create a privilege.FN31 Therefore, confidential information is necessary for the privilege, but cannot alone establish the privilege under the current test.

This decision invalidating express confidentiality agreements is contrary to public policy. Because the court in Moloney already had possession of the tapes from reviewing them in camera, they were “making a sham of the scholar’s absolute assurances to their interview subjects that they would keep the tapes absolutely confidential until the death of each interviewee.”FN32 The notion that researchers can make promises of protection to their participants that can be struck down as unenforceable in court is disconcerting. “[I]f the government may subpoena confidential information subject to virtually no judicial scrutiny, the likely result will not be that the criminal justice system benefits, but that fewer people involved in potentially illegal conduct opt to speak to the press in the first place.”FN33

Under this balancing test, explicit confidentiality agreements must weigh in favor of applying the scholar’s privilege in all but the most extreme factual circumstances. In Moloney the confidential interviews were sought through the MLAT treaty to solve longstanding murder investigations, which might very well reach the extremity requirement.

Other factors relating to the confidentiality of the material must be taken into account as well.FN34 For instance, researchers may fear that they will “[run] the well dry” if their information is forcefully disclosed through subpoenas.FN35 Voluntary revelations and bargained-for communications between a researcher and study participants are vital to a researcher’s work. Consequently, “[w]ithout these sources . . ., many researchers, . . . would lose valuable sources of information.”FN36

Study participants revealing personal or embarrassing information will be appropriately shielded here under the balancing test. The study participants in the Proctor & Gamble case were kept confidential because the information was highly personal in nature including medical history and sexual activity. The nature of this personal information could inhibit future studies if revealed due to a fear by participants of inevitable disclosure.FN37

Furthermore, First Amendment interests should not be discounted because a third party holds the confidential materials.FN38 Third parties typically destroy confidential researcher-client communications in testimonial privileges and sever the effect of confidentiality agreements. In Moloney, Boston College was in possession of the confidential interviews. Boston College did not bother to challenge the first subpoena issued, and even when challenging the second subpoena, the lawyers began the challenge by submitting the materials to the judge to be examined in camera.FN39 Ultimately, researchers must take responsibility in forming explicit agreements with their participants and keeping their agreements and communications as their property. But, since difficulties may arise for researchers in keeping their research out of the hands of third parties (especially in the institutional context), the court should weigh the researcher’s efforts to retain sole possession over the information instead of the actual result. Efforts sufficiently signify that the researchers valued the confidentiality interests of their participants enough to make a stand for them, which should weigh in their favor.

In sum, confidentiality must be weighed by (1) whether a confidentiality agreement was reached between researchers and participants (2) whether personal privacy interests are present for participants (3) whether future research will be inhibited if there is disclosure and (4) efforts by the researchers to keep their research out of a third party’s hands.

3. The Extent of Protection Appropriate: Dangerous or Scandalous Information

If the information pending disclosure is found to be confidential—the next step is to determine the extent of protection that is appropriate for the confidential information. Determining the extent of protection likely must be satisfied through a case-by-case basis, through context evaluation of the confidentiality aspect. The highest demonstrations of confidentiality should be afforded the most protection and inadequate showings will not earn protection. Torruella’s view in Moloney found the interviews that the Belfast Project researchers conducted were confidential—due to the great lengths that the researchers went to prevent their unsanctioned disclosure.FN40 The Moloney case is a perfect example of information found to be confidential that was still not afforded the protection that the researchers wanted. There are a number of ways for the party seeking disclosure to deal with information that falls somewhere between highly confidential and inadequate including: limiting the subpoenas to only relevant claims, being willing to accept data with redacted confidential information, and helping to underwrite the costs of redaction and photocopying.FN41

Beyond confidentiality, the personal safety and potential dangers that disclosure will cause for the researchers must be weighed as well. Media in response to the disclosures in Moloney reported death threats against the Lead Researcher for the Belfast Project, Anthony McIntyre.FN42 Mr. McIntyre also stated in an affidavit that the home next door to his was smeared with excrement after the interviews were released. As mentioned earlier, the topics of many research projects are sensitive, highly personal, or controversial, and the safety of researchers and participants absolutely must be weighed with care. The issuance of the subpoenas in Moloney also “prompted broad news coverage and a minor international scandal.”FN43 Not only did the ACLU attempt to intervene, but Senator John Kerry and Secretary of State Hillary Clinton urged British authorities to revoke the subpoenas to encourage the peace process in Ireland. John Kerry has further argued alongside Moloney and McIntyre that “peace process stability considerations must take precedence over the tightly-written treaty obligations of the MLAT.”FN44 Subject matter that is more likely to create public condemnation should be afforded the most protection under the balancing test, while benign research on uncontroversial subjects will typically garner less protection.

On a similar note, public curiosity or newsworthiness in the content of confidential research should not be valued in the balancing test. The Dolours Price interview garners large public interest, but most of the interest is not based on the confidentiality issues or the police misusing academic researchers for law and order purposes. Instead, the public really wants to know the “gory details of what they imagine are in these interviews,” which is driving and influencing much of the reporting.FN45 Once again, an inflamed public, or heightened social interest should have no bearing on the balancing test in these cases. The focus must be turned from the sensational, provoking subject matter, to the true issue of the case—which is solely the rights of the academic researchers.

In sum, there are a myriad of factors that fall into the First Amendment interests including whether the individuals fall into traditional First Amendment protection, whether the information is confidential, and the extent of protection that the confidentiality requires. The key to evaluating each of these factors is thoroughness and reasonableness.

B. The Opposing Interest: The Need for the Information

1. The Nature of the Proceedings

The nature of the proceedings, evinced by case law, primarily rests on whether the action is a criminal matter or civil matter. Branzburg flatly rejected the use of a reporter’s privilege in grand jury proceedings.FN46 Other than that, Branzburg did little to specify whether this type of privilege could be used elsewhere. This is where the circuit-split rears its ugly head. Some circuits have held that Branzburg forecloses First Amendment protection in all criminal cases.FN47 However other circuits have claimed there is no reason to distinguish between civil and criminal cases in application of the privilege.FN48 The majority in Moloney disavows the precedent of the First Circuit that permitted success and application of a scholar’s privilege simply on the basis that these were civil cases where the government and public’s strong interest in investigation of crime was not an issue.FN49

Case law evidences that the government’s presence as a party in criminal litigation makes a radical difference in the balancing test, as opposed to results obtained in private litigation.FN50 It seems that the government can more easily prove their need for the information by emphasizing interests of national security and public safety when criminal overtones are present.FN51 Essentially, when the Government is a party to the litigation, if they follow their own guidelines and use careful practice, there should be fewer problems with getting their subpoenas granted. In the Moloney case, the government was the party seeking disclosure of the information. The Government’s interest was clear through the UK-MLAT treaty in which the federal government of the United States assumed an obligation to assist the United Kingdom in its prosecution of domestic criminal matters.FN52

The current balancing test requires that for the party pursuing disclosure in civil litigation to defeat the scholar’s privilege, the research must be more than remotely related to the lawsuit. The relationship between the information sought and the academic research must be more than tenuous.FN53 For example, in one Second Circuit case, a student was working in a restaurant to gather information for his dissertation when a suspicious fire and explosion occurred in the restaurant.FN54 His journal and notes were subpoenaed. Although his journal entries were clearly “scholarly work product,” the relationship between the fire and the student’s academic research were remote and could not be classified as expertise.

However, the question remains as to whether or not this binary distinction between civil and criminal cases is appropriate. The implication should be that civil cases will more likely be granted the privilege, but the type of case should not be a decisive factor. Criminal matters cannot be conceded to the government the way that they have been previously. Branzburg once again offers little guidance since the holding effectively only prevents a privilege in regard to grand jury proceedings. Therefore, the civil/criminal distinction should be considered when balancing the need for information, but should not preclude the government from being defeated if they are unable to prove that their need is legitimate.

2. Exhaustion of Alternative Sources

The second factor that must be addressed is whether the opposing party has exhausted alternative sources for accessing the information. Although this inquiry is not essential to defeating the privilege, it is still relevant in determining whether subpoenas seeking the confidential information are necessary.FN55 In Moloney, the information the government was seeking were interviews from one source who had passed away and one source that was still living. The government had no way of eliciting the information from the dead source, which makes their case even more compelling. However, the government could have contacted the living source, Dolours Price, to obtain the interview information. If Price were to refuse to surrender the information from her own memories and experiences, that would be her prerogative. This conundrum is similar to Cusumano, where the court permitted the scholar’s privilege, in which “Microsoft could have obtained that information directly from the sources revealed by the manuscript.”FN56

The one exception to living sources are cases where the alternative means of acquiring the information will create an undue delay or burden to the opposing party. In this case the factor should weigh in favor of the party seeking disclosure. At the time that the First Circuit opinion was issued, Dolours Price was an emotionally unstable woman. McIntyre speaks of Price as a sensitive woman who suffered mentally from the betrayal by those who shared culpability and by others who abdicated their responsibility.FN57 She would likely not have consented to an interview with the government in the way that she previously had with the Belfast Project researchers. In contrast, Price had built a relationship of trust with McIntyre; she attended his wedding and was the godmother of his son. These conditions on Price’s willingness to be interviewed may serve as an example of an undue burden to the opposing party seeking disclosure. But, once again, an unwillingness to perform other interviews should not constitute an undue burden unless all other alternatives to the information are inaccessible.

The civil/criminal distinction may also come to bear on whether the information is accessible by other means. Case outcomes indicate that information sought in criminal cases will be more difficult to access from alternative sources.


There is no doubt that the scholar’s privilege argument will rear its head again soon, likely without the complications of an international treaty and a murder investigation allowing the courts to cruise past confidential researcher interests. At some point, the Supreme Court must clarify for lower courts to what extent parties asserting their First Amendment interests in challenging government subpoenas of confidential information should – consistent with Branzburg – have a Constitutionally guaranteed right to present evidence before the court for review. If not, scholars and researchers will continue to have their motions to dismiss disclosure quashed, which in turn will cause scholars and researchers to have their work, their passion, and their interest in sustaining oral and written history quashed. The time has come to stop quashing and start protecting.


FN1. University of Kentucky College of Law, J.D. candidate for May 2014.

FN2. Nicholas J. Wagner, Split Over Reporter’s Privilege Highlights Tension Between National Security and the First Amendment, Circuit Splits (July, 12, 2012, 5:27 AM) http://www.circuitsplits.com/2012/07/in-2010-before-an-audience-of-college-students-justice-sotomayor-remarked-that-the-supreme-court-is-likely-to-have-to-rule.html.

FN3. See United States v. Moloney, 685 F.3d 1, 16-20 (1st Cir. 2012); Will Havemann, Privilege and the Belfast Project, 65 Stan. L. Rev. Online 79, 79 (2012) http://www.stanfordlawreview.org/sites/default/files/online/articles/Havemann_65_SLRO_79.pdf.

FN4. See Robert M. O’Neil, A Researcher’s Privilege: Does Any Hope Remain? 59 Law & Contemp. Probs. 35, 36-37 (1996).

FN5. See Branzburg v. Hayes 408 U.S. 665, 690, 702-703 (1972).

FN6. See Wagner, supra note 2.

FN7. Kristina Spinneweber, Branzburg, Who? The Existence of a Reporter’s Privilege in Federal Courts, 44 Duq. L. Rev. 317, 334 (2006).

FN8. David A. Kaplan & Brian M. Cogan, The Case Against Recognition of a General Academic Privilege, 60 U. Det. J. Urb. L. 205, 221 (1982-1983).

FN9. See Howard Gray Curtis, Academic Researchers and the First Amendment: Constitutional Protection for their Confidential Sources, 14 San Diego L. Rev. 876, 877 (1976-1977) (explaining that the traditional disagreements have centered on journalists rather than academic researchers).

FN10. See Kaplan & Cogan supra note 8, at 215.

FN11. Paul Nejelski & Lindsey Miller Lerman, A Researcher-Subject Testimonial Privilege: What to do Before the Subpoena Arrives, 1971 Wis. L. Rev. 1085, 1134.

FN12. See Branzburg, 408 U.S. 665 at 689.

FN13. Cusumano v. Microsoft Corp., 162 F.3d 708, 714 (1st Cir. 1998).

FN14. Judith G. Shelling, A Scholar’s Privilege: In Re Cusumano, 40 Jurimetrics J. 517, 524 (2000).

FN15. See Rebecca Emily Rapp, In Re Cusumano and the Undue Burden of Using the Journalist Privilege as a Model for Protecting Researchers from Discovery, 29 J.L. Educ. 265, 268 (2000).

FN16. See Shelling, supra note 14, at 517.

FN17. United States v. Moloney, 685 F.3d 1, 16-20 (1st Cir. 2012).

FN18. Havemann, supra note 3 at 82.

FN19. Branzburg v. Hayes, 408 U.S. 665, 667-671 (1972); Moloney, 685 F.3d at 6.

FN20. Moloney, 685 F.3d at 18.

FN21. United States v. Moloney, 685 F.3d 1, 20 (1st Cir. 2012) (Torruella, J., concurring in the judgment only) (quoting Cusumano v. Microsoft Corp., 162 F.3d at 714 (1st Cir. 1998)).

FN22. Nejkelski & Lerman, supra note 11, at 1093.

FN23. U.S. Const. amend. I.

FN24. United States v. Moloney, 685 F.3d 1, 20 (1st Cir. 2012) (Torruella, J., concurring in the judgment only) (citing Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)).

FN25. See Curtis, supra note 9, at 897.

FN26. Hannah Miller, Should a Legal Right to “Archival Privilege” be Established?, Due Process: Georgetown Law Library Blog, (February 26, 2013), http://www.law.georgetown.edu/library/blog/post.cfm/should-a-legal-right-to-archival-privilege-be-established.

FN27. Nejkelski & Lerman, supra note 11, at 1141.

FN28. See Eric M. Kraus & Arthur Palmieri, Investigating the Investigators: Balancing the Needs of Independent Researchers with Litigation Imperatives, Privacy & Data Security L. J. 659, 668 (2006).

FN29. United States v. Moloney, 685 F.3d 1, 4-6, 18-19 (1st Cir. 2012).

FN30. Petition for Writ of Certiorari, Moloney v. Holder, 2012 WL 5838450 at *7 (U.S.).

FN31. See Branzburg v. Hayes, 408 U.S. 665, 682 n. 21 (1972).

FN32. Harvey Silvergate, BC and the Belfast Project: A Scholar’s Privilege to Disobey, Forbes, (July 23, 2012, 11:48 AM), http://www.forbes.com/sites/harveysilverglate/2012/07/23/bc-and-the-belfast-project-a-scholars-privilege-to-disobey/.

FN33. Havemann, supra note 3.

FN34. O’Neil, supra note 4 at 36 (referring to the four concerns for protecting scholarly research).

FN35. Kraus & Palmieri, supra note 28 at 760.

FN36. Id. at 671.

FN37. See Farnsworth v. Proctor & Gamble Co., 758 F.2d 1545, 1546 (11th Cir. 1985)(preventing disclosure of questions regarding medical histories, sexual practices, contraceptive methods, pregnancy histories, menstrual activity, tampon usage, etc).

FN38. Brief for the Reporter’s Committee for Freedom of the Press as Amicus Curiae Supporting Petitioners at 3-5, Moloney v. Holder, No. 12-627, 2012 WL 6703006 (U.S.), at *4-*9.

FN39. See Silvergate, supra note 32.

FN40. United States v. Moloney, 685 F.3d 1, 20-21 (1st Cir. 2012) (Torruella, J., concurring in the judgment only).

FN41. See Kraus & Palmieri, supra note 28 at 674.

FN42. Katie Zezima, College Fights Subpoena of Interviews Tied to I.R.A., N.Y. Times, June 10, 2011, at A12.

FN43. Havemann, supra note 3 at 83.

FN44. Jim Dee, Death of Dolours could be a major game-changer, BelfastTelegraph.co.uk, Jan. 29, 2013, http://www.belfasttelegraph.co.uk/opinion/news-analysis/death-of-dolours-could-be-a-major-gamechanger-29041219.html.

FN45. Radio Free Eireann Interview with Anthony McInture and Ed Moloney: The Death of Dolours Price, Boston College Subpoena News (January 26, 2013), https://bostoncollegesubpoena.wordpress.com/2013/01/27/radio-free-eireann-interview-with-anthony-mcintyre-and-ed-moloney-the-death-of-dolours-price/.

FN46. Branzburg v. Hayes, 408 U.S. 665 at 707-08 (1972).

FN47. Petition for Writ of Certiorari, Moloney v. Holder, 2012 WL 5838450 (U.S.).

FN48. See Spinneweber, supra note 7 at 10-15.

FN49. United States v. Moloney, 685 F.3d 1, 18 (1st Cir. 2012) (distinguishing Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998)); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 595-99 (1st Cir. 1980).

FN50. United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983).

FN51. Reporter’s Privilege Legislation: An Additional Investigation of Issues and Implications: Hearing Before the Committee on the Judiciary United States Senate; 109th Cong. 6 (2005) (statement of Hon. Chuck Rosenberg, U.S. Attorney for the S. D. of Tex.) (stating that the Governmental interest includes enforcing federal criminal law, protecting national security, protecting vital secrets, and protecting public safety).

FN52. United States v. Moloney, 685 F.3d 1, 21 (1st Cir. 2012) (Torruella, J., concurring in the judgment only) (citing UK-MLAT Technical Analysis, S. Exec. Rep. No. 104-23, at 11).

FN53. Bert Black, Research and Its Revelation: When Should Courts Compel Disclosure?, 59 Law & Contemp. Probs 169 at 179 (1996).

FN54. Id. (referencing In re Grand Jury Subpoena Dated January 4, 1984, 750 F.2d 223 (2d Cir. 1984)).

FN55. Curtis, supra note 9, at 888-889.

FN56. Cusumano v. Microsoft Corp., 162 F. 3d 708 at 712 (1st Cir. 1998).

FN57. See Radio Free Eireann Interview with Anthony McInture and Ed Moloney: The Death of Dolours Price, Boston College Subpoena News (January 26, 2013), https://bostoncollegesubpoena.wordpress.com/2013/01/27/radio-free-eireann-interview-with-anthony-mcintyre-and-ed-moloney-the-death-of-dolours-price/


Hunger strike episode important in explaining reaction to Boston College project

Hunger strike episode important in explaining reaction to Boston College project
The story is about who controls the narrative of the IRA’s part in over 30 years of violence in the North
Ed Moloney
Irish Times
Tue, May 20, 2014

In his seminal account of the 1981 IRA hunger strikes, Afterlives, Richard O’Rawe writes that when, in 1991, he canvassed the idea that he might go public with his story of what really happened during the protest, that someone close to the Sinn Féin leadership told him, “as a friend”, that if he did, he could be shot. He wrote: “While he never used the words ‘shot dead’, I nonetheless felt that that was implicit in his warning” (p66). And so, fearful of the consequences, he kept his mouth shut.

And he did, for over 10 years, until the Boston College project reached out to him and he agreed to be interviewed about his role as public relations officer for the IRA inmates during the protest. He found the interviews such a liberating experience that, against my advice that his safety could be at risk, he wrote Blanketmen, his first book about the prison protest. If I had had my way Richard O’Rawe’s story would have stayed secret until his death. But he was insistent it be told.

O’Rawe’s account of the hunger strike gave an entirely different account of events from the one peddled by the Sinn Féin leadership, which placed responsibility for all the deaths on Margaret Thatcher. In O’Rawe’s account the late prime minister was responsible for just four deaths, the republican leadership for six.

Essentially, O’Rawe’s story, which in subsequent years was substantially confirmed by contemporary British documents released in response to his books, went as follows. In July, 1981, after five months of protests and four deaths, the British offered to concede a majority of the hunger strikers’ demands. O’Rawe and his immediate superior, the IRA jail commander, Brendan McFarlane, recommended that the fast should end but they were overruled by Gerry Adams; the hunger strike continued and a further six prisoners went to lingering, painful deaths. (This has been denied by Brendan McFarlane and senior Sinn Féin figures such as Gerry Adams and the then Sinn Féin publicity chief Danny Morrison).


So what was the motive for overruling the prisoners’ leaders? One possible reason was that a continuation of the hunger strike helped ensure the success of Owen Carron in that August’s Westminster byelection in Fermanagh-South Tyrone caused by Bobby Sands’s death.

That was because preserving the hunger strike also kept in place a deal with the SDLP not to intervene electorally in the constituency, thereby avoiding a split in the nationalist vote to the unionists’ advantage. Carron’s win was entirely dependent on IRA prisoners still being on protest when polling happened. Had the prisoners accepted the British offer, the SDLP would have fielded a candidate and Carron would have lost.

Instead Carron’s victory paved the way for Sinn Féin’s electoral strategy and set in motion forces that, as I write, have placed Sinn Féin on the cusp of government on both sides of the Border.

That July 1981 episode thus assumes critical historical importance. Arguably it also explains why O’Rawe was warned to keep his mouth shut in 1991, why he was so badly abused when he did make his story public and why Sinn Féin, and those like Dr Martin Mansergh (“Adams episode sounds warning on peace process”, Irish Times, May 7th, 2014) who recycle Sinn Féin’s talking points, are so agitated about the Boston College project.

The truth is that without the Boston College project this crucial chapter in modern Irish history would have been buried – perhaps disappeared is a better word – and hidden from view at the point of a gun. The only account to survive would be the one that suits Sinn Féin best, the version that heaps all the blame on Thatcher and keeps the focus well and truly off the Sinn Féin leadership.

This story, and the Sinn Féin-led offensive against the Boston project, is about more than the character of the man who might be Ireland’s next tánaiste, although it is surely that as well. It is about who controls the narrative of the IRA’s part in over 30 years of violence in the North.

Just as Adams wishes the world to believe that he was never in the IRA, so he also wants those like Richard O’Rawe who dare challenge his control of that narrative, his version of events, to remain silent.

The current campaign of intimidation led by Sinn Féin against the Boston project is really aimed at anyone tempted to imitate our efforts by trying to explore the reality behind the propaganda.


Mansergh accuses the Boston project of hypocrisy when I wrote that it was carried out in a “professional and detached” way. But when Dr Anthony McIntyre approached Richard O’Rawe – and others – for an interview he carried a tape recorder in his hands, not a pistol behind his back. We sought accounts about life in the IRA in interviews freely given by former activists motivated only by a desire to tell the truth as they saw it. Our crime was to unearth some accounts that were inconveniently at odds with the version of history that Sinn Féin wishes the world to believe and we interviewed people such as Brendan Hughes and Dolours Price who would be central in any narrative about the IRA. Not to have interviewed such people would have been remiss beyond words.

The logic of Mansergh’s critique of the Boston project is unavoidable. Should anyone wish to imitate our project, the potential interviewees should be asked one of two questions: do they believe Gerry Adams was in the IRA? Or, do they give unequivocal support to the peace process?

If they answer “Yes” to the first, and “No” to the second, or even hesitate in their answer (after all, one can favour peace, but dislike the process), then they will be excluded from recording their memories since they are, in Mansergh’s view, likely to be motivated by malice towards Adams or the policies he has helped put in place. Only in such a way can subversive, anti-peace sentiment be prevented from contaminating historical research.

That is the history telling of totalitarianism.

Northern Ireland seeks all Belfast Project interviews

Northern Ireland seeks all Belfast Project interviews
Peter Schworm
Boston Globe
May 23, 2014

Boston College will contest a new legal bid by British law enforcement to seize the entire trove of interviews from the university’s Belfast Project, university officials said Friday, joining a renewed battle over the controversial archive.

In a statement Thursday, the Police Service of Northern Ireland said it would seek to obtain the collection of interviews with former members of militia groups that clashed during the decades-long conflict known in Northern Ireland as the Troubles. But police did not specify a course of action or timetable.

“Detectives in Serious Crime Branch have initiated steps to obtain all the material from Boston College as part of the Belfast project,” the Police Service said. “This is in line with PSNI’s statutory duty to investigate fully all matters of serious crime, including murder.”

A spokesman for Boston College said Friday that the university had not received any information about the move to acquire the archives. But the spokesman said the blanket request for all materials, including interviews with more than a dozen members of a militia group loyal to Britain, seemed aimed at rebutting critics who have accused British authorities of using the archives for political purposes.

“The [Police Service of Northern Ireland] has been criticized for only pursuing the interviews of former IRA members,” said spokesman Jack Dunn. “This appears to be an attempt to deflect criticism that their actions were politically motivated.”

A spokesman for the Police Service declined to comment.

From 2001 to 2006, researchers interviewed former members of the Irish Republican Army, who sought a united Ireland, and former members of the Ulster Volunteer Force, a paramilitary group that wanted Northern Ireland to remain part of the United Kingdom.

Dunn said Boston College would fight to protect the interviews and hoped that US authorities would reject the legal request.

“Since the first subpoenas were issued in 2011, Boston College has pursued legal, political, and diplomatic efforts to oppose the effort of British law enforcement to obtain the interviews in an effort to protect the enterprise of oral history and the peace agreement in Northern Ireland,” Dunn said. “We will continue to do so and hope that the State Department and the Department of Justice will reject this latest request.”

A spokeswoman for the US attorney’s office in Massachusetts declined to comment.

Former militia members consented to interviews for the oral history project with the assurance that their statements would be kept confidential until their death. But Northern Ireland authorities, using a mutual legal assistance treaty with the United States, pursued the interviews as potential evidence of past crimes.

The treaty requires the nations to share information that could aid in criminal investigations.

After a lengthy court battle, Boston College was compelled to hand over 11 interviews with former members of the Irish Republican Army, leading to the recent arrest of Gerry Adams, the leader of Sinn Fein, in connection with the notorious 1972 killing of Jean McConville.

After being released without charges earlier this month, Adams said interviews from the oral history project formed the basis for his arrest. Adams has denied any involvement in the killing of McConville, a mother of 10 who the IRA believed was an informer.

McConville was abducted and secretly buried. Years later, the IRA admitted responsibility for her death.

Information from the interviews also led to the arrest of Ivor Bell, a former IRA member who was charged in the slaying of McConville.

The arrests have led to criticism that Northern Irish authorities are exploiting the archives to cause political damage to Adams and Sinn Fein, the former political arm of the Irish Republican Army. Adams has criticized researchers for focusing on former IRA members who became critics of Adams and the peace process.

After Adams’s arrest, Boston College said it would return interviews to any participants who requested them and would not keep copies. Several people had already made requests.

Ed Moloney, an Irish journalist who led the project, blasted the British authorities’ latest bid to obtain the archives.

“I call upon the US government to resist this fishing expedition by the PSNI and to remember that the major consequence of this bid to invade an American college’s private archive will be to undermine a peace deal that was in no small way the product of careful American diplomacy and peace building,” he wrote on his blog.

“I also call upon Boston College to vigorously resist this action and to rally the rest of American academe in the cause of research confidentiality,” he wrote.

NBC News has also requested that previously subpoenaed materials be unsealed, writing that “any case involving incidents of terrorism and criminality . . . is a matter of great public interest.”

Sarah Wunsch — staff attorney at the American Civil Liberties Union of Massachusetts, which backed two project researchers in their effort to protect the interviews — called on American authorities to reject the police request.

“I think it’s time for the US government to call a halt to this, which is not only damaging to oral history and academic freedom, but also immensely damaging to peace in Northern Ireland,” she said.

Moloney Statement On PSNI Threat To Boston Archive

Ed Moloney with a statement in response to the British PSNI moving to raid the remainder of the Boston College oral history project. It featured on The Broken Elbow today 22 May 2014.

I call upon the US government to resist this fishing expedition by the PSNI and to remember that the major casualty of this bid to invade an American college’s private archive will be to undermine a peace deal that was in no small way the product of careful American diplomacy and peace building. The United States has the power to invoke vital foreign policy interests in order to reject this PSNI action.

I also call upon Boston College to vigorously resist this action and to rally the rest of American academe in the cause of research confidentiality. It is no accident that this move comes hard on the heels of BC’s spokesman Jack Dunn’s public announcement that interviews could be returned. This action by the PSNI raises serious questions about the motivation and control of the police in Northern Ireland. Those in the PSNI who took and approved this decision could hardly have been unaware of the grave political consequences of their planned action.

Boston College tapes: US network NBC launches legal bid

Boston College tapes: US network NBC launches legal bid
Andy Martin
BBC Ireland Correspondent
BBC News

The American news network, NBC, has made a formal request to have transcripts from Boston College’s Belfast Project released.

Its news investigations team made the application to a US Judge, William Young, who is one of the few people to have read the entire archive.

Information from the recordings has led to a series of arrests, including that of Sinn Féin president Gerry Adams.

The project was designed as an oral history of the Troubles.

Dozens of former paramilitaries from the IRA and the Ulster Volunteer Force gave candid interviews to researchers employed by the university, on the understanding that their involvement would not be made public until after their deaths.

“I am furious that a news agency is trying to expose sources. I am extremely hostile to this action.”
Anthony McIntyre
Lead researcher, Boston College oral project

The course director, journalist Ed Moloney, published a book based on two of the accounts given to the project, after the interviewees had died.

However, the PSNI became aware of the existence of the tapes.

They used a treaty between Britain and the United States to obtain any material that could help their investigation into the murder of Jean McConville in 1972.

Mrs McConville is the best known of The Disappeared, a group of people abducted, murdered and secretly buried by republicans.

The researchers fought the release of the interviews through the US courts, maintaining that it would represent a breach of contract and trust, and violate the ethical code on the protection of sources.

Judge Young, who read the archive in order to determine which testimonies made reference to Mrs McConville, acceded to the PSNI request.

He did, however, describe the project as “a bone fide academic exercise of considerable merit”.


Dr Anthony McIntyre, who conducted the interviews with former IRA members, said he was shocked to learn that a news organisation had attempted to have the documents released.

Mr McIntyre has been made aware of threats to his life as a result of his involvement in the project.

He said he could not understand how a news organisation could be prepared to violate the code on the protection of sources.

“I am furious that a news agency is trying to expose sources,” he said. “I am extremely hostile to this action.”

The real threat to peace in Northern Ireland

The real threat to peace in Northern Ireland
Ed Moloney
Special to The Globe and Mail
Published Saturday, May. 10 2014

History, Stephen said, is a nightmare from which I am trying to awake – James Joyce, Ulysses

The past is certainly proving to be a nightmare for long-time republican Gerry Adams, whose arrest last week has left Northern Ireland’s peace process in crisis.The dramatic turn of events – he has been released after four days in custody but may still face charges related to a murder that took place almost 42 years ago – raises important questions. Is the failure of Northern Ireland’s peace pact to deal with the sins of the past the real reason for the current crisis? And, by refusing to acknowledge the true nature of his background, did Mr. Adams bring this on himself?

For most of the quarter-century or so during which I reported on the violence, it was an accepted truth among nearly all my colleagues that, like the Middle East, this dispute was impervious to a peaceful resolution. It would go on, we reckoned, forever.

British troops had patrolled the streets of Belfast and the pretty lanes and byways of counties Tyrone and Armagh since 1969 and, while the carnage had declined from the bad, early years, the warring groups – the Irish Republican Army (IRA), which fought to reunite the north with the rest of Ireland, and Protestant paramilitaries that killed to keep it under the Union Jack – had stubbornly resisted all efforts by the British security forces to extinguish them.

The death toll surpassed 3,000 – equivalent (given that the population was just 1.5 million) to 600,000 in the United States and 70,000 in Canada, and large enough to be regarded as a civil war in most countries. The Troubles, as we Irish called the conflict, had touched nearly everyone. There was hardly a person in the place who had not had a family member, a friend, an acquaintance killed or injured, imprisoned, forced to flee their homes or affected in some way.

The political leaders of the divided Catholic and Protestant communities were as immovable as their paramilitary brethren. If anyone symbolized their inflexibility, it was the towering Ian Paisley, who seemed to roar “No!” to almost every suggestion for moving out of the morass.

And then suddenly the ice moved and cracked and things began to change. Of course, it had not happened suddenly, just out of view. Behind the scenes and for several years, unknown even to their supporters, leaders of the paramilitary groups had started to talk about peace.

Prime among the groups doing this was the IRA, whose political wing, Sinn Fein (Irish for We Ourselves), glimpsed the possibility of political gains if the violence ended.

In 1994, an IRA ceasefire was called. It broke down briefly, was restored and, in 1998, with the direct assistance of the U.S., British and Irish governments, the political parties brokered the Good Friday Agreement.

The Troubles had come to an end – or so it appeared.

The peace pact foresaw a power-sharing government in Belfast, a complete end to violence and the destruction of paramilitary arsenals, the release of prisoners and a new policing arrangement, one that was more acceptable to Catholics.

It took another eight long, hard years of negotiating to put all the pieces in place. Eventually the IRA agreed to decommission its weapons, and its political leaders accepted the new police. Strangely, or not, the two most extreme parties, Sinn Fein and Ian Paisley’s Democratic Unionist Party, had gained most from the new dispensation, by now officially termed “the peace process.” Gorged with votes and now the dominant representatives of their communities, they formed the senior partners running the new government.

And so the world – and Northern Ireland – was treated to the extraordinary sight of Martin McGuinness, a former IRA commander, and Ian Paisley, the “Mr. No” of local politics, in the two top jobs. A photo of them in 2006 seated side by side and grinning like Cheshire cats earned them the sobriquet, “the chuckle brothers.” The seemingly impossible and unthinkable had happened. Everything seemed rosy.

Who did what to whom

Fast-forward eight years, and not only does the future look less promising but it is the past that dominates. An almost daily squabble about who did what to whom, why, what happened and – most crucially – who should be brought to book and how, permeates both media coverage and the political discourse.

When constructing this most complex of peace deals, much thought and more energy were expended on how to remove the most obvious obstacles, like IRA guns or agreement on the policing of Northern Ireland, and almost none on how to resolve the unanswered questions of the past and, more important, how to bring solace to victims and the relatives of those killed.

That failure is now exacting a possibly destructive cost on the peace process. And in the wings are armed groups opposed to the accords, hoping for the worst.

It is in this context that the arrest of Mr. Adams, Sinn Fein’s longtime leader, has hit the headlines, complicating an already difficult problem.

Dealing with the past was prominent in my mind back in 2000 and 2001 when I was approached by a Belfast academic on behalf of Boston College with a proposal. The college library had a gap in its collection; there was almost nothing dealing with the conflict on its shelves. Did I have any ideas? College funding could be available.

For some time it was clear to me that the war in Ireland was coming to an end and someone had to think about making sure it was chronicled properly. When conflicts draw to a close, the accounts of what happened and why are invariably written by the winners and leaders who always have axes to grind and reputations to preserve or reshape.

Seldom do the activists at the bottom, those involved in the bloody cutting edge, get to tell their stories. The Irish government in Dublin had collected stories from IRA activists involved in the 1916-1921 War of Independence; the project had started in the late 1930s with publication postponed in case the stories had an inflammatory effect in the north. Only with the peace did these accounts start to emerge.

It was doubly necessary to do the same in Northern Ireland because of the length of the conflict, over 30 years. Those who had been 20 at the start were now middle-aged; those in their thirties and forties were approaching death. If it wasn’t started soon, it might be too late.

Boston College agreed. I also stressed the need for legal safety. The archive might not be immune to an American subpoena, but why would any U.S. law-and-order agency be interested in events in Ireland? It was the British we had to worry about.

The college agreed on one principle: Nothing would be allowed into the archive if it was at risk. Contracts we drew up giving the interviewees “ultimate” control over their tapes and transcripts until their death had been, we were assured by the college, vetted and approved by its lawyers. After the deaths of those interviewed, the material became the property of Boston College, to do with as it wished.

Sadly, we had been misled. College lawyers now admit they never examined the contracts, and the librarian who gave us the assurance has departed his post. The damage was done, though.

The U.S. and Britain have a treaty that allows the exchange of alleged criminal evidence, and it was invoked to obtain interviews conducted for the project. This was a disaster but also ironic; we had been happy working with a U.S. college because America was considered neutral by both sides. None of our interviewees or researchers would have trusted a British or Irish university to keep things secret.

But back to 2001 and the project’s beginnings. The first archive dealt with Irish republicans, primarily but not exclusively with the IRA. Another principle behind the project was unique. I had decided that the sensitivity of the subject made it impossible to use conventional oral-history researchers; they wouldn’t know whom to interview or what to ask, and the participants simply would not trust them. So we would need to recruit former combatants who were academically qualified – and, crucially, trusted and knowledgeable. Anthony McIntyre, an ex-member of the IRA who spent 18 years in prison, had later earned a doctorate in political science and his thesis dealt with the IRA in the 1970s. He was an ideal candidate.

We also started an archive dealing with the Ulster Volunteer Force (UVF), a ferocious pro-British, Protestant group that killed many people, mostly Catholics, often in awful ways. It, too, was part of the story, and we hired Wilson McArthur, a politics grad from a pro-UVF family. There also were plans to create an archive for the police, but the promised funding dried up.

By 2006 we had created a valuable archive from both sides of the conflict. While small – perhaps 40 interviewees altogether – it was unique and contained insights that would be valuable to historians.

That is when the college suddenly stopped funding. It had asked us to alter the terms of the contract to allow publication while the interviewees were still alive, and we’d refused. A few weeks later, the cheques stopped. We never did understand why but disappointment at our response was clearly a possibility.

IRA leadership a greasy pole

At the outset of the project, we faced a tricky dilemma. The UVF leadership had no problems co-operating with the researchers, but the IRA’s command would never have allowed its rank and file to take part. So it had to be kept in the dark.

The IRA is a much more controlling organization, and no one more so than Gerry Adams. He has been the president of Sinn Fein since 1982 and a member of the IRA’s leadership since the early 1970s. The IRA is a very greasy pole and to stay at the top as long as he has requires particularly sharp claws.

For reasons that even seasoned observers cannot understand, Mr. Adams decided, when the peace process began to get serious, to deny any and all association with the IRA. Now, while it is customary for members never to admit belonging to the IRA, not least because that would mean a jail term, they never deny it, either, because to do so means disowning their beliefs. If asked, IRA members usually refuse to comment or tell reporters to mind their own business.

Mr. Adams decided to deny his past completely, the first ever to do so. It may turn out to be the greatest mistake of his career.

To many of those in the IRA who had killed or maimed and gone to jail for lengthy terms, it looked as though he was seeking respectability, as the peace process brought him into the White House, to Hollywood and to the homes of the rich and powerful in the U.S. and elsewhere. Meanwhile they lingered in Belfast, disowned by their leader and with little to show for years of fighting.

One of those most upset was the late Dolours Price, famous for having led a bombing team that devastated the centre of London in 1973. Caught and jailed, she then embarked on a hunger strike for more than 200 days, kept alive by force feeding and nearly succumbing to anorexia.

“We had worked so closely with him and taken orders from him on many occasions,” she told a reporter in 2010 (three years before her death), “and then to deny us … we were offended that he chose to deny us as much as he chose to deny belonging to the IRA. He is a liar.”

Also irate was Brendan Hughes, who had been in a leader of the Belfast IRA with Mr. Adams and was, in the 1970s, his closest friend. He agreed to be interviewed for the archive, telling Mr. McIntyre the denial “means that people like myself … have to carry the responsibility for all those deaths, for sending men out to die and sending women out to die, and Gerry was sitting there … trying to stop us from doing it? I’m disgusted by it because it’s so untrue and everybody knows it.”

Mr. Hughes and Ms. Price were both privy to, or involved in, the case that led to Mr. Adams’s arrest: perhaps the most pitiless murder of the Troubles.

It took place in December, 1972 – less than a year after the infamous “Bloody Sunday” killings of Catholic marchers in Londonderry. Jean McConville, a 37-year-old widowed mother of 10 accused by the IRA of informing to the British Army, was abducted from her West Belfast apartment, shot and buried in an unmarked grave across the border. Her children were left to fend for themselves, and her body was not found for 31 years.

In his interview for the archive, Mr. Hughes said that Mr. Adams had given the order – a claim that he asked be kept confidential while he was still living. When it became public in my 2010 book, Voices From The Grave (he had died two years earlier), Ms. Price, who hadn’t mentioned the killing to the college, admitted that she had helped to ferry Mrs. McConville to the republic on Mr. Adams’ instructions.

Arrest is badly timed

In the wake of such revelations, police in Northern Ireland asked the U.S. Department of Justice to serve subpoenas on Boston College. They wanted the Hughes and Price interviews and, last fall, after a lengthy and controversial legal battle marked by conflict between the college and Irish researchers, finally got them.

This led to the arrest of Mr. Adams, which could not have come at a worse time for the peace process.

Months of squabbling over the past between the Irish political parties persuaded Washington to intervene. Last December, former State Department official Richard Haass was dispatched to Belfast to try to broker an agreement that would satisfy victims and allow Northern Ireland to move on. His efforts failed largely because the pro-British parties balked. Some suspect they knew the Adams arrest was possible, and were delighted.

Whatever the truth, the Sinn Fein leader has been released while prosecutors decide whether to charge him. It will be an anxious wait, both for him and for the country. Either way, the decision will cause a row. If he is released, Protestant parties will allege a cover-up; if he is charged, the power-sharing government will be under threat.

None of this would have had happened had the architects of the Good Friday Agreement invested as much political capital in devising a satisfactory way of dealing with Northern Ireland’s bloody past as they did with the accord’s other elements. It a salutary lesson for peacemakers everywhere: History matters; if not addressed, it poisons the present and pollutes the future.

Ed Moloney is an award-winning Irish journalist and author now based in New York.

Gerry Adams arrest: surrender of interview tapes has dealt ‘blow’ to research

Gerry Adams arrest: surrender of interview tapes has dealt ‘blow’ to research
By David Matthews
Times Higher Education
1 May 2014

Researcher on Boston College project criticises pursuit of recordings

The handing over of research that appears to have led to the arrest of Sinn Féin leader Gerry Adams has dealt a “death blow” to academic work in the US involving confidential interviews.

That is the view of a key member of the university team that recorded the Boston College interviews that police have pursued as part of their investigation into an IRA killing.

The Sinn Féin leader was arrested yesterday and questioned by Northern Ireland police over the 1972 murder of Jean McConville, which he has long denied having any role in.

His arrest comes after the release to police of parts of interviews with Irish Republican and Loyalist paramilitaries conducted for a research project by academics at Boston College.

Two of the former paramilitaries interviewed for the tapes implicated Mr Adams in the murder of Ms McConville, although it is thought both had fallen out with the Sinn Féin leader.

Boston College academics fought unsuccessfully through the courts keep the tapes private.

Speaking about Mr Adams’ arrest, Ed Moloney, an Irish journalist who was one of the researchers in the Boston project, said that the “damage” was “done” to academic freedom.

“The whole process of conducting academic research in the United States of America on sensitive subjects with confidential sources has been dealt a death blow by the Obama Department of Justice,” he told the Boston Globe.

“It’s a disaster in Ireland, as well, because it means people are not now willing to sit down in front of a tape recorder and tell the truth about what happened.”