When Research Meets Politics: Lessons from Boston College’s Belfast Oral History Project
By Dr Birgit Schippers
Senior Lecturer in Politics
St Mary’s University College Belfast Compromise After Conflict blog
Much of the recent attention given to Boston College’s Belfast Oral History project has focussed on the question of confidentiality and its legal implications. The researchers on the project, the academic Dr Anthony McIntyre and the journalist Ed Moloney, claim to have put their faith in Boston College’s assurances of confidentiality agreements given to the research participants, specifically that recordings would not be released until after the death of the participants. The subpoena actions initiated by the PSNI and subsequent decisions by US courts have put to rest once and for all the naive belief that confidentiality assurances are iron-clad.
Less attention has been given to another aspect of this long and still ongoing saga: this is the relationship between research and politics. Hardly anyone hankers after the idea, always contested, that ideas move in a value-free vacuum produced by detached scholars who, sitting in their ivory-towers, are immune from the political values and ideas that influence them as knowledge-producers. Does the acknowledgement that academics carry political baggage allow them, though, to undertake their work with little or no consideration to their research participants, to the political contexts in which they work, or to implications their work has on other scholars?
Moloney refers to McIntyre as a ‘lead IRA researcher’, and his blog defends his and McIntyre’s professionalism, integrity and detachment. Yet, looking at the Boston College debacle, it appears that what the project lacks is the very professionalism, integrity and detachment that Moloney claims. What would shed light on Moloney’s claims is openness and honesty about the ethical integrity of the project. What is missing in the public debate around this issue is information on the ethical scrutiny and oversight applied by Boston College. Like any academic institution, surely Boston College must have a procedure for the ethical scrutiny of research, and an ethics committee that scrutinizes the ethical practice underpinning research. Did an ethics review happen in the case of the Boston College project? And what was its outcome?
The project is now treated by academics as a textbook case of ethical malpractice. In addition to the project’s well-rehearsed problems with confidentiality, it also raises concerns regarding the safety of the research participants. I wish to highlight a different issue: is it permissible to engage in research to make a political point? And is it acceptable to undermine good ethical practice in the name of a political cause? Both researchers on this project are well-known critics of Gerry Adams and the Sinn Fein strategy pursued under his leadership. This is a legitimate political view to take; it is also legitimate and necessary to submit the actions, ideas and practices of political actors to robust and critical scholarly scrutiny. However, when the political views of researchers permeate the aim and methodology of their research, we enter a grey zone where the lines between scholarly research and propaganda become blurred. From what we know so far, all of the republican research participants seem to espouse the same political stance as McIntyre and Moloney. Such an apparent disavowal of a balanced approach in its choice of research participants, together with Dr McIntyre’s recent insinuation that he used leading questions, challenges the aim, remit and indeed the name of the project. Put differently, was the project designed to produce an oral history archive of the protagonists of the conflict, or is its purpose to advance a one-sided view on the conflict? If the latter is the case, then this project disguises political propaganda as scholarly research.
The conduct of McIntyre and Moloney has shaken the trust of conflict protagonists to participate in oral history research, and it is fair to conclude that this project has had a negative impact on the use of research as an aid to understanding conflict. It has also damaged the prospects of other scholars, especially those interested in oral history and narrative research, to conduct similar projects. One would hope that future projects restore some of the lost confidence in the integrity of research and produce work that is more thoughtful and reflective.
As Chris Bray writes here, Boston College has lodged its plea with the First Circuit Appeal court and he points out that the college have unceremoniously dumped Dolours Price, choosing to interpret two controversial newspaper articles in the Irish News and Sunday Life back in February 2010 as evidence that she had relinquished her protection of confidentiality and therefore any need for Boston College to resist the PSNI/Department of Justice subpoenas seeking her interviews.
UPDATE – I am informed that legally this might be a controversial and invalid claim for Boston College to have made. I will update more when the situation clarifies.
UPDATED AGAIN – Chris Bray has addressed the issue of the legal standing of Boston College’s claim that Dolours Price relinquished her protection of confidentiality when she allegedly gave an interview to the Irish News in Belfast in February 2010. He effectively concludes that Boston College’s claim is spurious. You can read his piece here.
Here is my take on that issue and the general matter of this so-called appeal by Boston College.
Boston College’s lawyer says that Dolours Price made “public statements”admitting that she had given interviews to Boston College and that this indicated that she was no longer prepared to protect the confidentiality of her interviews.
My question is a simple one: exactly which statements are these? As far as I know Dolours Price has made no public statement about her involvement with BC and has never been quoted saying that to anyone anywhere, to journalist, lawyer, newspaper or whoever.
The only reference to her having a connection to Boston College came in a Belfast Sunday tabloid article that appeared in February 2010. The article, in the Sunday News, had this to say: “Price, who has made taped confessions of her role in the abductions to academics at Boston University (sic), will relay this information to ICLVR (Independent Commission for the Location of Victims’ Remains) investigators later this week.”
That is all there is. A bald statement (which manages to name the wrong university) based on what? Where are Dolours Price’s quotes? Where is the evidence for this claim? Where does this information come from? The reporter, Ciaran Barnes, does not say, even though he claims to have listened to tapes stored in the vaults at Boston College. It seems to me quite extraordinary that in a legal case as important as this that claims are being made about what Dolours Price said with absolutely no evidence to back them up.
BC’s lawyer goes on to say: “(Dolours Price) provided much of the information about her role in the IRA and the disappearances of individuals, including Jean McConville, in public interviews”.
Excuse me, but exactly which public interviews were these? If the reader wishes to check here or here, not one IRA action allegedly ascribed to Dolours Price in those two articles is backed up by as much as a single quote from the woman herself, not as much as one word!
The two articles allege that Dolours Price made admissions about Jean McConville’s disappearance and cite taped interviews she made as the source. So, where are the quotes from these taped interviews, supposedly made by her in conversations with Anthony McIntyre? If she told McIntyre these things then why not quote her? A simple question to ask, a simple demand to make and most journalists would regard their work as unworthy of publication if it wasn’t backed up by such quotes or equivalent convincing evidence. But the single defining and damning feature of the newspaper articles upon which this whole subpoena saga has been based (and which in turn Boston College’s lawyer bases his and the college’s desertion and abandonment of Dolours Price) is that there is not a single quote anywhere to back anything up, not a shred of evidence that she said anything to McIntyre about Jean McConville or anyone else “disappeared” by the IRA in the early 1970′s.
If the New York Times or the Boston Globe or indeed any decent newspaper with standards were presented with such stories their editors would correctly reject them as being a series of unsubstantiated assertions and they would be spiked. Yet here we have a protracted and expensive legal process which could have devastating consequences for many of those involved which is based upon newspaper articles that carry no quotes nor any evidence of any meaningful sort to back up what they publish. If it wasn’t so serious it would be laughable!
Boston College’s written brief to the appeal court badly needs to be put in context and we should remember a very important feature of this action: that Boston College is appealing against a judgement which it did most to bring about in the first place and that the one thing that it is not doing is to challenge the district court’s substantive judgement that the interviews in the Belfast Project archive should be handed over to the PSNI in Belfast.
Boston College announced this “appeal” in late February after weeks of unrelenting media criticism for fleeing the field of battle in the wake of the District Court decision against us last December, leaving myself and researcher Anthony McIntyre to struggle on alone against huge odds. Here was a prestigious and enormously wealthy college abandoning its former researchers and research subjects to a lonely battle whose worst outcome could be devastating for them. With barely a shrug BC had ditched its promise to stand by its pledge of confidentiality given a decade earlier to the researchers in Belfast. By February there was a whiff of rotten cabbage about Boston College. As public relations disasters go, this was as bad as it could get.
So when the college announced in February that it was now going to appeal Judge Young’s decision in the District Court, the initial reaction was euphoric. One email to myself from a supporter captured the mood: “Yahoo!”, it read. That mood lasted about twenty-four hours. It became depressingly clear that BC had no intention of appealing Judge Young’s decision to hand over the interviews. The college’s appeal would be limited to the scope of Young’s decision since the venerable judge had decided that even though some interviewees had barely mentioned Jean McConville, the reason for the subpoenas in the first place, their interviews should nonetheless be handed over. And in the case of those who had given McConville greater mention, all of their interviews, including interviews entirely unconnected to the alleged British Army spy, should be handed over.
So what appeared to be a major U-turn by BC soon turned out to be much less. A cynic might even say that the move was a classic piece of public relations trickery, designed to deflect media criticism while really doing very little in terms of significance. I compared BC’s “appeal” to a condemned man arguing with the hangman over the length of rope he planned to use on the gallows.
At the same time there is no doubt that Judge Young’s decision was an outrageous one and if BC’s “appeal” succeeds in diluting it then so much the better. But the irony of all this is that if BC’s academic staff had played with anything like a straight bat during the hearings in front of Young, the judge would not have been able to make the decision he made and BC would not have had to take it to the appeal court.
Here’s why. When Young ruled back last December that the interviews should be handed over to the PSNI, he asked Boston College to review the interviews in the archive and come back to him with those that made reference to Jean McConville. Had Boston College acted on this, they could have minimized the damage to the archive by limiting the portions to be surrendered.
But instead Burns Librarian, Bob O’Neill, who has charge of the archive made an astonishing claim to the judge. He had never read the interviews, he said, so he wouldn’t know where to start or which interviews to read. So sorry, your honour, Bob O’Neill cannot help the court. I will be careful in my language here but let’s say the truth and this claim by O’Neill are complete strangers and if myself or Anthony McIntyre had made such a claim we’d probably end up on a perjury charge. I know that O’Neill did not tell the truth because over the years he and myself had many discussions about the contents of interviews and I have emails from him discussing interviews that he has read. For him to claim that he was so unfamiliar with the interviews that he couldn’t help the court is simply not true.
(It is arguable that had O’Neill been telling the truth his behavior would be worthy of even greater condemnation. This was the librarian in charge of a sensitive and important archive which had cost his college several hundred thousand dollars and he says he hasn’t read a single interview! The skeptical reader could be forgiven that the proof of his lie is that Boston College didn’t instantly sack him after such a startling and damaging admission!)
Someone, we don’t quite know who, then had the idea of asking Anthony McIntyre if he could help the court. To his credit, McIntyre refused to take refuge in a lie but took a principled decision not to help Judge Young, saying that while he respected the court, he had no intention of becoming an evidence gatherer for the PSNI.
As a result, the entire archive was then handed over to Judge Young who, along with his clerks, spent the Christmas holidays trawling through interviews that Boston College had promised its researchers and research subjects would remain confidential. Not one to look a gift horse in the mouth Judge Young can hardly be blamed for deciding to hand over as much and as many of the interviews as he could. And all because Bob O’Neill told a lie.
A couple of weeks later, Tom Hachey and Bob O’Neill wrote up their account of the Boston College subpoena affair in the Irish Times and this is what they wrote about this episode: “No one knows more about the contents of the interviews of former IRA members than the interviewer himself, Anthony McIntyre, who declined the court’s request to disclose which of the interviews were potentially responsive, thereby requiring Boston College to provide all the IRA interviews to the court for its review.”
I have often compared Boston College’s behaviour during this wretched affair to that of Bush, Cheney, Rumsfeld and their Generals when the news broke about US-sponsored torture at Abu Ghraib prison in Iraq. Just as Bush & Co passed the blame for a policy they had devised and designed on to the shoulders of grunts working shifts at Abu Ghraib, so Boston College has done the same to Anthony McIntyre and myself. This affair of the appeal-that-need-not-have-been is perhaps the best example of that approach in action. And still the stench of rotten cabbage hangs around Chestnut Hill.
On Thursday, Boston College owes the First Circuit a brief that will lay out the basis for their appeal of the district court’s order to turn over Belfast Project interview materials to the U.S. Attorney’s Office in Boston. Because of some bad timing, the lawyers working on that brief are stuck with an unfortunate guessing game: The same court has already heard argument in another appeal regarding many of the same subpoenaed materials, but the court has not announced its decision in that case.
Remember that in its April hearing, the court brushed aside the government’s efforts to limit the issues before the court, insisting that Assistant U.S. Attorney Barbara Healy Smith address a set of constitutional challenges raised against the subpoenas by the lawyers for Ed Moloney and Anthony McIntyre, BC’s Belfast Project researchers. Asked if the First Amendment protects the confidentiality of academic research, Smith responded that there “is not a recognized privilege that would protect someone from giving evidence absent a strong countervailing interest — constitutional, common-law, or statutory privilege.”
That’s the heart of the position that BC will need to attack if it wishes to kill any part of these subpoenas, and the university’s lawyers have to frame their argument without knowing what the court thinks of a set of issues it has probably already considered.
It’s possible that the court’s decision in the appeal by Moloney and McIntyre wouldn’t help BC figure out the landscape anyway, since one possibility is that the court simply concludes that the researchers don’t have standing and so have no place in court to begin with. But the point is that BC doesn’t know, and has to write and present an argument without knowing.
In other news, the court has not responded to an unusual exchange of letters between the U.S. Attorney’s Office and the lawyers for Moloney and McIntyre. The government opened the exchange with a letter insisting that, contrary to claims made before the court, the researchers are in no danger at all from the disclosure of confidential interview material with the IRA over the murder of an informer. Eamonn Dornan, the principal lawyer for Moloney and McIntyre, had argued that the threat to the safety of the researchers and their families could be proven by the State Department’s efforts to ensure the security of McIntyre’s wife and children, who are U.S. citizens.
In response, Smith offered to prove that the State Department doesn’t believe the subpoenas present any threat to McIntyre’s family, and State and Justice are on the same page regarding the subpoenas. That claim is absolute nonsense, and will be easily disproved if a court opens the door to evidence, but the door is still closed.
Finally, a personal note. I owe the final draft of a dissertation in exactly two months, and will be grimly lashed to the thing day and night until then. Posting here will be light, though I’ll still note major developments regarding the Boston College subpoenas.
Close Enough for Government Work Chris Bray
MONDAY, APRIL 23, 2012
Mildly amusing new and tiny little discovery that will only be of interest to close observers of the Belfast Project subpoenas who enjoy making fun of government lawyers. That might very well be an audience of me, but let’s do this thing anyway and call it a party.
When Assistant U.S. Attorney Barbara Healy Smith sent the First Circuit a letter, two weeks later, to say the things she hadn’t thought to mention during oral argument over the Belfast Project subpoenas, nobody much understood what she was up to. Writing at Letters Blogatory, lawyer and longtime observer Ted Folkman shrugged that “it must be the silly season in the Belfast Project case.”
“I am not sure of the procedural correctness of the government’s letter,” Folkman wrote. “The Federal Rules are silent, and the letter is pretty plainly not a citation of supplemental authorities under Rule 28(j).”
Beats the hell out of me what that is, but then here comes my old friend Google with Rule 28(j) of the Federal Rules of Appellate Procedure:
(j) Citation of Supplemental Authorities.
If pertinent and significant authorities come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision—a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter must not exceed 350 words. Any response must be made promptly and must be similarly limited.
Here’s a link to Barbara Healy Smith’s letter, in full. It surely doesn’t look to me like it cites any pertinent but previously overlooked authorities — I just see whining. But here’s the thing that Carrie Twomey just pointed out to me. If you open the letter in Adobe Reader and click on “properties,” you see this:
So Barbara Healy Smith titled her document, which no one apparently perceived or even now perceives to be a Rule 28(j) letter, “Rule 28j letter (with red notations).”
If your letter isn’t a Rule 28(j) letter, but you call it one, you’re good. That totally covers it. This is why every document I write is titled something like, “Convincing letter to that dude who wants to sue me,” or “Letter to my wife to not be mad at all about what I did to the left side of the car.”
Belfast Project Director Ed Moloney interviewed on New York radio
Radio Free Eireann WBAI 99.5 FM
New York City
Saturday 21 April 2012
John McDonagh (JM) and Sandy Boyer (SB) interview Ed Moloney (EM) to get an important update on appeal pending in the federal court in Boston concerning The Belfast Project, the Oral History archive at Boston College.
Sandy Boyer (SB): Welcome back to Radio Free Eireann WBAI 99.5 FM in New York.
We’re speaking with Ed Moloney, the Director of the Belfast Project, the Oral History of The Troubles which the US government has subpoenaed on behalf of the Police Service of Northern Ireland. Ed, thanks for being with us. Ed, can you hear me?
Ed Moloney (EM): Yes I can.
SB: We didn’t get you for a moment. So Ed, there’s new development: after you had two rounds of briefs and oral arguments suddenly the US government has come back to the court of appeals.
EM: Yes, it was an extraordinary incident. Our oral hearing in Boston was on April the fourth and then on April the sixteen, I think it was, a letter was sent to the three appeal judges by the US Attorney’s office trying to raise issues that had been dealt with both in the, to some extent in the written brief and also in the oral argument, and that was the assertion from us, which was really central to our argument that we should be allowed to have a proper say in the court proceedings, that there was no great risk to either to myself or to Anthony McIntyre.
And the US Attorney’s office wanted to put that on record again with the judges and also to dispute the claim that had been made by Eamonn Dornan that the Department of State, that’s Hillary Clinton’s department, had a different view of all of this than Eric Holder’s Department of Justice.
And they claimed in their letter that there was no difference between the attitude of the State Department and the Department of Justice. That was their letter and apparently it’s an unprecedented thing to happen.
Eamonn Dornan eventually wrote back a few days ago and pointed out that there’s nothing in the rule books relating to appeal hearings that would allow something like this.
And he also went on to dispute some of the claims that had been made in this US Attorney’s letter saying that in fact that the State Department had been fully aware of all the dangers and there was evidence there to show that there was concern at that level and just to quote he said: “the appellants are ready, willing and able to provide evidence of those contacts” (that’s contact between the McIntyre Family, principally, and the US Embassy in Dublin) over any of their security or threat to physical safety arising from these interviews being handed over to the PSNI.
SB: And you’d think that if the government was really happy with the way the case was going they wouldn’t be doing this.
EM: You would think so, yeah.
The lawyers that I’ve talked to, the moment they get over the surprise of this thing, and all sorts of adjectives have been used from “extraordinary” to “unprecedented” to describe what has happened here, the next thought that comes out of their heads is that the government must be a little bit worried about the way that it’s going in order to have, as it were, a second bite of the cherry, you know?
Who knows whether that’s a straw in the wind or not but it’s an extraordinary event to happen and apparently has never happened before.
SB: Ed, something else very interesting has come up: one of the key interviews that the government is seeking to turn over to the Police Service of Northern Ireland is an interview with Dolours Price, Marian Price’s sister.
It’s emerged that the Police Service of Northern Ireland could easily have talked to her.
EM: Oh yes! One very important plank in our case is that there was no need for the PSNI to go to the lengths of trying to get interviews extracted out of the archives at Boston College because there were other alternative opportunities to get the same sort of evidence. And one of these occurred in August, 2010 and that is, to refresh your listeners memories on this:
the incident which apparently led to the PSNI seeking these subpoenas took place in February, 2010 when Dolours Price gave an interview to a newspaper in Belfast claiming her involvement in or alleging her involvement in the disappearance of Jean McConville and a few other incidents like that and also apparently telling The Irish News that she had also given an interview to Boston College.
That was the basis on which the PSNI sought the subpoenas. In other words, we have evidence that this exists, it’s the only evidence that we have and therefore we want to get hold of it.
Well in August, how many months after is that? At least six months after this happened…where was Dolours Price?
Appearing in a Newry Magistrate’s Court on a charge of shoplifting (for which, incidentally, she was cleared.)
As you know, the courts in Northern Ireland, particularly like Magistrate’s Courts, are jammed-packed with policemen. The authorities would have known that she had been charged. The authorities would have known that she was appearing. They had an ideal opportunity to say, to come up to her after the hearing and say: “Excuse me, Ms Price, we would like to have a few words with you down at the police station. Would you mind coming down and explaining to us these interviews that you gave to The Irish News?”
And they didn’t do so.
And that’s a very important element in our case because it shows really that the police were not on the job here. And it raises all sorts of serious questions about the motivation for the subpoenas.
It’s not about getting evidence against Dolours Price because if they were serious about that they could have gotten it there and then.
It’s about something else.
And that something else is, as we have argued consistently, that there is an element there within the PSNI which is seeking revenge against Gerry Adams and the leadership of the Provos for all the changes in policing and so on and so forth. So that opens up that whole issue and that whole question so it’s very important.
That has not yet formally been presented in terms of written evidence but Eamonn Dornan was able to raise it at the oral hearings on the grounds that this was information that we’d only just found out about and that was accepted by the judges.
So that’s now there and hopefully going to be part of the consideration when it comes to making a decision about whether we should be allowed our own opportunity to argue our case.
John McDonagh (JM): Ed, what’s going on in Boston and the court system is really going to have world-wide implications!
I was speaking to the people at The Ulster American Folk Park. And even though they’re not involved politically, they’re involved with migration, but they’re following it very closely they said because it will have an effect to all museums – to all college around the world who want to do recordings like this and record histories…that now, any police force anywhere in the world can file papers, say here in America, or we can file papers in Germany or whatever…who’s going to speak and do this?
What this is going to do, if this is successful, is to stifle historical research or rather confine the recording of history to very limited groups of people. And my argument has always been that, for reasons which absolutely totally confound me, the participating parties in the Northern Ireland power-sharing executive, and this includes Sinn Fein, have allowed the interpretation of the past to be handed over to this Historical Enquiries Team which is part of the PSNI. And the PSNI are the successors of the RUC.
The RUC and the PSNI are participants in The Troubles!
Those of us who are old enough can remember when The Troubles started and the civil rights movement and so on and so forth, the reason why the civil rights movement got such a boost at the very start was because of police brutality at places like Doire on October the fifth, Burntollet, and so on and so forth. And that continued.
And they were major participants in The Troubles. And the idea that their successors should be allowed to be the people to collect and interpret the history, which has happened here is just obscene!
My attitude I would have to say would be exactly the same if it was handed over to the let’s say, The Orange Order, to record the history of The Troubles or to Provisional Sinn Fein or anyone like that.
Anyone who was actually involved in The Troubles is not a neutral party. They’re not objective, they can’t be objective and that job should be handed to somebody or organisation or people who are regarded as much more objective and don’t have a dog in the fight, as we say in this country.
But the HET does.
And one of the effects of this action, if it is successful, is to say well, the HET really is the only group in Northern Ireland society that’s allowed to record this history.
And the only other people of course will be those who have got various axes to grind from all sorts of political directions.
So a true, bottom up, grassroots-type of history of what happened in The Troubles, the sort that we were trying to collect, will be rendered impossible after this.
And that happens anywhere in the world because let’s say look at, if this is successful here in the United States…people who want to do an Oral History of the US involvement in Iraq or Afghanistan…they won’t be able to do that because they would be looking over their shoulders all the time at the possibility that the Iraqi government could come and use exactly the same legislation or treaties to collect evidence against people that they want to charge in Baghdad or people who were involved in the American military and so on.
And you can continue this through all sorts of examples of the sort of important social, political history that you really want to chronicle and what have you and it’s going to have a devastating effect on it.
The people who are responsible for these subpoenas are…they have a huge burden of guilt in relation to what damage they are doing to human beings’ abilities to collect their own history.
SB: I want to get back to Dolours Price for a moment. I mean, Why?
Are they just so incompetent that they didn’t find out that she was going to be in court or….?
EM: I’ve absolutely no idea. It’s possible. I don’t know. I really don’t know.
The point is though is that she was well known.
It was well-known that, apparently that and I wasn’t obviously covering the story at the time being over here in New York, but when she was arrested and what have you, that was apparently a story that appeared in the newspapers.
She’s a figure of some, if not notoriety, she’d certainly be well known as The Price Sisters are major characters in the history of The Troubles; it’s not as if they’re like unknown people.
Dolours Price and her sister were convicted of the The Old Bailey Bombings, the first IRA bombings of London during the current troubles; they’re extremely well-known.
And the idea that someone like her could appear in court and be charged and what have you and it would go unnoticed by the authorities is a stretch, I think, at the very least.
The point is though that they had that opportunity.
They also, of course, had the opportunity of going to the newspapers who interviewed Dolours Price because there’s a tape recording involved in that.
She gave an interview to this woman, Allison Morris of The Irish News. That interview was tape recorded. The tape recording was then passed on to another newspaper called The Sunday Life.
Both of those newspapers used material based on the (Irish News’) tape recorded interviews.
And from what we know and what we’ve been able to piece together, the police didn’t even bother going near any of those newspapers until more than two months after they had served the subpoenas on us. They served the subpoenas on us in May and I think it was July by the time that they went round to The Irish News and The Sunday Life offices to ask them about these tapes.
And only because we had pointed this out in our court documents. Otherwise the police were not going to bother at all going anywhere near these people.
So it’s an extraordinary lapse and one has to ask: Why?
And there are very serious implications in the possible answers that come out of that.
We hopefully will have the opportunity, if we win this appeal case, to raise all of these issues because it demonstrates a fundamental weakness and flaw in this treaty that the United States has signed and agreed with countries like the United Kingdom, and they’re not the only one, there are many other countries with similar treaties, in as much as that US citizens end up having less rights under these treaties than they do under their own Constitution.
In other words, the PSNI is able to do more to a US citizen than that person’s own government.
Which cannot be right.
SB: Ed, thank you very much and we’ll be getting back to you as soon as there are any new developments in this case.
Cause and Effect Boston College in-house lawyer takes vacation, delays their appeal Chris Bray
MONDAY, APRIL 9, 2012
Okay, this is funny.
For months, the government lawyers arguing in court for the subpoenas of archival material at Boston College have sounded a persistent note of urgency: This is a murder investigation! There’s no time for delay! Reflecting this urgency, the government pushed for an expedited schedule in the First Circuit, trying to resolve the legal appeals over the subpoenas as quickly as possible. (See, for example, this scheduling order in the appeal filed by Ed Moloney and Anthony McIntyre: “The government’s request for an expedited briefing schedule is allowed. “)
Then came April 4, when the government’s lawyer was left baffled and babbling by the questions from a panel of appellate judges in the Moloney and McIntyre appeal. Suddenly? Not so urgent. Below, a motion from Boston College’s lawyers to slow down the briefing schedule in the university’s separate and more limited appeal in the same case. Taste the funny: “The Government has authorized Boston College to advise the Court that the Government assents to this motion, and does so with the hope that briefing in this case will proceed expeditiously and that the case will be ready for argument by this Court’s September sitting.”
Boston College, and their frenemies in the U.S. Attorney’s Office in Boston, hope that briefing in this case will proceed expeditiously so that argument can happen soon. In, like, maybe let’s skip the rest of the spring and the whole summer and go for, I don’t know, early autumn?
Why the suddenly discovered need for a delay, in a motion filed two days after Eamonn Dornan and the ACLU of Massachusetts succeeded in thoroughly upending the government’s arguments in court? The explanations from Boston College are as funny as the delay itself: “In-house counsel for Boston College reviewing and contributing to the brief has a previously long-scheduled vacation commitment out of the Boston area from April 13 to April 22, 2012.”
A previously long-scheduled vacation suddenly necessitates an unanticipated delay in the briefing schedule that will push oral argument from June to September. Your honor, who could have guessed that a previously long-scheduled conflict would suddenly arise right after the government had a terrible day in court and the judges made fun of the idea that Boston College adequately represents the interests of its researchers, causing laughter in the courtroom? That previously long-scheduled vacation was a total curveball, for sure.
In Boston, journalist Moloney battles to protect sources
By Joel Simon/CPJ Executive Director CPJ Blog
Press Freedom News and Views
Committee to Protect Journalists Defending Journalists Worldwide
In December 2002, the U.N. Tribunal charged with prosecuting war crimes in the former Yugoslavia ruled that Washington Post reporter Jonathan Randal could not be compelled to provide testimony in the case of a Bosnian Serb official accused of carrying out a campaign of ethnic cleansing.”If war correspondents were to be perceived as potential witnesses for the Prosecution,” the Tribunal noted, they “may shift from being observers of those committing human rights violations to being their targets.” As a result of that ruling, war correspondents enjoy some immunity against compelled testimony at the international level. But this is not necessarily the case in the United States.
A case playing out in the U.S. Court of Appeals in Boston highlights the lack of protection for conflict reporters under U.S. domestic law. Ed Moloney, an award-winning Irish journalist who has covered the conflict in Northern Ireland since 1979, and researcher Anthony McIntyre are fighting to keep their confidential sources secret. Moloney, a permanent resident of the United States, directed “The Belfast Project,” an oral history project documenting “The Troubles” that was deposited at Boston College in an archive that would be sealed, according to the terms of the project, until the participants granted permission or died. Among the many interviews in the project are ones from the late 1990s with Brendan Hughes, who subsequently died, and Dolours Price, who is very much alive. Both are former members of the Irish Republican Army. Non-confidential parts of these interviews were used in a book by Moloney and a subsequent high-profile documentary.
The British government is now seeking access to the oral history project for an investigation into the 1972 killing of Jean McConville, a mother of 10 in Belfast whom the IRA has admitted to killing because she was suspected of being an informant. McConville’s killing has received a lot of attention in Ireland because of allegations that Sinn Féin leader Gerry Adams commanded the IRA unit responsible for ordering her execution and secret burial, allegations that Adams denies. Critics of the UK prosecution have called it a political attack on Adams and say it could undermine the 1988 peace deal that ended decades of fighting in Northern Ireland.
Under the terms of a bilateral agreement, U.S. authorities are cooperating with the UK investigation and have served Boston College with a subpoena to produce the materials. Moloney says these include confidential journalistic material he used for his book and documentary. If the subpoenas are successful Moloney may be legally obliged to verify the material so it can be used as evidence in criminal proceedings, something he says he will not do.
In December, a judge ruled that Boston College had to turn over the interviews with Price. Then, in January, a judge ruled the university had to hand over interviews with seven other subjects who also discussed the killing. Boston College has appealed that ruling, challenging whether the material is necessary to the investigation. That case is expected to be heard in June.
Meanwhile, Moloney and McIntyre have filed a legal challenge of their own asserting that they should be allowed to participate in the case so they can fully defend their interest in keeping the interviews under wraps. Their lawyers have argued that releasing the documents would violate Moloney’s rights under the First Amendment and could endanger the life of McIntyre because of his IRA connections. The ACLU filed an amicus brief that lays out the legal arguments. A ruling is expected in the coming weeks on the motion by Moloney and McIntyre.
The implications from the Moloney case are twofold. First, conflict reporters based in the United States need to understand they could be subpoenaed as part of an international investigation and, if they were, their ability to protect their confidential sources is unclear.
To give one of many possible examples, if the Colombian government launched a criminal investigation into crimes committed by the FARC guerillas and asked the U.S. government to enforce a subpoena against a journalist for The New York Times, “I think they’d enforce it once a threshold showing was made that it was an actual government investigation,” noted Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “And American authorities do not seem to give a rip whatsoever whether journalists are able to do their jobs anywhere in the world. Sad, but true.”
Second, Dalglish notes, if a journalist is willing go to jail to protect a source, the only way to keep that commitment is to retain physical control of the material. Once the material is in the hands of another individual or institution, the challenges grow.
But while the legal issues in the Moloney case may be complicated, the principle is not. Journalists covering conflict, particularly those reporting on human rights violations and crimes of war, must be able to protect their confidential sources in order to be able to do their critically important job with some modicum of safety. While that principle has been upheld at the international level in the Randal case, it has not been established in the United States.
Joel Simon is the executive director of the Committee to Protect Journalists. He has written widely on media issues, contributing to Slate, Columbia Journalism Review, The New York Review of Books, World Policy Journal, Asahi Shimbun, and The Times of India. He has led numerous international missions to advance press freedom.
May 25, 2011: Boston College’s IRA archives get subpoenaed (Video)
During the Irish peace process, Boston College collected numerous interviews with IRA operatives promising to keep the records sealed until after their deaths. Now a federal subpoena could force BC to break its confidentiality agreement. Boston College spokesman Jack Dunn, Thomas Hachey of BC’s Center for Irish Programs, and Boston Globe columnist Kevin Cullen join Emily.
Emily Rooney interviews Jack Dunn and Thomas Hachey of Boston College, along with Kevin Cullen of the Boston Globe, for WGBH’s Greater Boston program