Research Ethics – Confidentiality and Impact of Boston College’s Decisions

Research Ethics
The Opinion Pages | Letter
New York Times
MAY 13, 2014

To the Editor:

Re “College Says It Will Return Interviews About Ulster” (news article, May 7), about Boston College’s oral history project involving former paramilitaries who had been promised confidentiality so they would speak openly about their roles in the Northern Ireland conflict:

In our academic research, we occasionally gather information about an individual’s involvement in serious crimes during conflicts in places like the Democratic Republic of Congo, Uganda and the Central African Republic.

The data raises different issues concerning research ethics. There may be legal obligations to report knowledge of certain crimes and to report information that could prevent potential or intended future crimes. There may also be ethical obligations to share information needed to prosecute perpetrators of serious crimes, or establish the truth about atrocities.

These obligations may threaten research confidentiality and the process known as informed consent, in which respondents and researchers agree on well-defined possible risks and benefits from participating in the research, and on how data will be handled and for what purpose.

The tension that exists between both sets of obligations remains largely unresolved. It will remain so until the limits of research confidentiality and informed consent are defined, and until clear principles of legal protection for researchers refusing to violate confidentiality agreements are established.

Wayland, Mass., May 7, 2014

The writer is the director of the Program for Vulnerable Populations, Harvard Humanitarian Initiative.

Boston College (Cont.): Fixing a Broken Frame

Boston College (Cont.): Fixing a Broken Frame
Cliopatria – History News Network
Chris Bray

News reports frame the federal subpoena for confidential interview materials at Boston College as a threat to oral history scholarship. This is how the framing began; nearly two months later, this is how it continues.

But this framing misses the point. The Department of Justice did not say, in its friday court filing, that academic freedom is a meaningless claim of privilege in cases involving oral history research. What they said is that academic freedom is a meaningless claim of privilege, full stop. They did not say that the courts have no role in evaluating foreign requests made under the terms of mutual legal assistance treaties for oral history materials; they said that the courts have no role in evaluating foreign requests made under the terms of mutual legal assistance treaties.

Confidential oral history materials are at risk. So are embargoed correspondence, memoirs, journals, and other personal papers given to archives. So are the research notes of academics who study war crimes and dissident political movements overseas. Why on earth not? What does anyone see in the government’s claims, here, that draws a clearly bounded target around oral history alone?

The federal government has shoved open a door to archives and research material, period.

And the potential damage keeps going. On both sides of the Irish border, an independent commission is searching for the bodies of the Disappeared, relying on information from confidential informants to find the bodies of people killed and buried by paramilitaries during the Troubles. The lead investigator for that commission is now warning that the Boston College subpoenas are a threat to the commission’s sources, as former paramilitary members worry that promises of confidentiality are made to be broken.

The threat is not simply to oral history. It goes on and on.

Boston College (Cont.): AUSA Todd Braunstein, the Infamous Irish Politician

Boston College (Cont.): AUSA Todd Braunstein, the Infamous Irish Politician
Cliopatria – History News Network
Chris Bray

One new fact, twice the clarity.

In two previous posts, I argued that the federal subpoena for confidential oral history materials held at Boston College was probably not what it seemed. Pursuing the records of historical interviews with former members of the Provisional IRA following a request from the British government, the Department of Justice claims to be aiding a murder investigation; the more likely reality is that they’re helping to frame a purely political case against Sinn Fein after its recent successes during the February election in the Republic of Ireland. I won’t rehash that claim here, but you can follow the two links above for background.

So then, on Friday, the DOJ filed its response to BC’s motion to quash the subpoena. I discussed that response here, if you missed it.

But here’s one more exceptionally interesting thing about that response, which you can read here. It’s on pg. 2, at the start of the section titled, “Procedural History” (emphasis added): “On March 30, 2011, the United States submitted an application to the Court pursuant to the Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland…”

Before the DOJ filed this response, all that was known publicly was that BC got a subpoena in early May; the first news stories appeared around the middle of that month. But now it’s clear that the DOJ first walked into court with their request a little over a month earlier. Subtract a week or two for the DOJ to process the request and prepare its filing. Subtract a week or two for the British government to decide on, prepare, and transmit the request.

The general election in the Republic of Ireland that brought Gerry Adams into the Dail took place on February 25, 2011.

The murder of Jean McComville went without investigation for nearly forty years.That fact is undisputed. But then, at the very moment that Gerry Adams was elected to a parliamentary seat that he was willing to take — in an election that brought Sinn Fein back from the dead in the Republic of Ireland — it became suddenly urgent to get to the bottom of the McConville murder. And the way to do that was to subpoena only the interviews of the very two people who are publicly known to have said that Adams approved the killing.

The British government is engaged in politics, not a murder investigation. No one is going to be convicted on murder charges as a result of the DOJ’s subpoena. Everyone involved knows that. The point is politics. And the DOJ is playing along.

Assistant U.S. Attorney Todd Braunstein, you got a request for a subpoena of material that would damn Gerry Adams, and you got it immediately afteran election that saw a significant new political development for Adams and Sinn Fein — and you couldn’t figure out what you were being asked to do?

Or he knew exactly what he was being asked to do, and he cheerfully did it anyway. Which would be worse?

It’s a shameful abuse of power in either case.

DOJ on Boston College: Academic Freedom a Legally Meaningless “Quasi-Privilege”

DOJ on Boston College: Academic Freedom a Legally Meaningless “Quasi-Privilege”
Cliopatria – History News Network
Chris Bray

On Friday, the Department of Justice filed its response to the motion by Boston College to quash a federal subpoena for confidential oral history materials related to Northern Irish paramilitary violence. The government’s response is unmistakably aggressive in tone and in scope. Read the briefhere. The most remarkable claims, with emphasis added:

  1. In its Mutual Legal Assistance Treaty with the United Kingdom, the federal government has traded away the role of the courts, leaving discretion only in the hands of the executive branch: “Notably, the US-UK MLAT reserves the authority [to] decline a MLAT request, or to limit its scope, to the Attorney General, not the courts” (pg. 8). Under the terms of the treaty, an assistant U.S. attorney is acting as a “commissioner” to make a determination regarding the validity of the request and to act upon it (pg. 3). Federal law “does not vest the U.S. courts with discretion to evaluate MLAT requests where none exists under the applicable treaty” (pg. 9). Federal case law reflects “the narrow scope of the Court’s discretion in this case,” concluding “that district courts should not evaluate MLAT subpoenas under the standards applicable to domestic subpoenas” (11-12). Furthermore, the courts may not evaluate the political implications of information sought by a foreign government under the terms of an MLAT. “This is precisely the type of assessment left to the Central Authority of the United States, here the Attorney General, and the Central Authority in the UK” (pg. 19, and  pg. 2). In short, the federal government has granted the British government a mechanism to obtain what are effectively writs of assistance, subject to mandatory execution and beyond review or protest. This is an ironic historical development.
  2. Academic freedom is a legally meaningless “quasi-privilege,” and BC’s attempt to apply protected status to academic research makes “no claim of a cognizable federal privilege” (pp. 10-13, with quotes from the beginning and end). Academic researchers have fewer protections against compulsory disclosure than journalists, since “the courts have long recognized the unique role which news reporters play in our constitutional system.” In contrast, “[t]he limited protections afforded news reporters in the context of a grand jury subpoena should be greater than those to be afforded academics engaged in the collection of oral history” (pg. 14). Journalism is a protected activity; academic research is not.
  3. While the courts have no discretion in considering subpoenas issued pursuant to MLATs, the executive branch doesn’t have much, either: “In this case, the US-UK MLAT requires that, ‘the Requested Partyshall take whatever steps it deems necessary to give effect to requests received from the Requesting Party’…Under the US-UK MLAT, the United States is obligated to obtain the documentary evidence requested in this instance and provide it to the authorities in the UK” (pp. 6-7; emphasis in original).

So when foreign governments that have entered into MLATs with the United States wish to demand access to confidential academic research materials, the executive branch is compelled by treaty obligations to say yes, the courts have no discretion to say no, and “academic freedom” is a meaningless claim.

Clear enough?


Cliopatria – History News Network
Chris Bray

Watch this difference very closely.

Here’s the New York Times describing the Belfast Project, oral history interviews conducted under the aegis of Boston College regarding the Troubles in Northern Ireland: “Boston College filed a motion this week to quash a federal subpoena seeking access to confidential interviews of paramilitary fighters for the Provisional Irish Republican Army… Academics, historians and journalists conducted the interviews from 2001 to 2006. Known as the Belfast Project, its goal was to interview members of the I.R.A., the Provisional Sinn Fein and other organizations about their activities during the Troubles.”

Here’s the Irish Times describing the same project: “In a case being watched closely by academics around the world, Boston College has asked a judge to quash subpoenas demanding it turn over to British authorities records from an oral history project involving republican and loyalist paramilitaries in Northern Ireland.”

In American news accounts, the project produced interviews of former republican paramilitary gunmen (and vaguely identified others), and the Department of Justice is trying to get IRA interviews on behalf of British authorities who wish to investigate violent crimes from an era of anti-government terrorism.

But in Irish accounts, the project produced interviews of former republican paramilitary gunmen and former loyalist paramilitary gunmen, while British authorities are only trying to reel in the interviews that might incriminate the republicans. An honest effort to examine the era would closely investigate both — the violence of loyalist paramilitaries is well known.

This information makes it quite a bit harder to believe that the British government is motivated by a desire to produce impartial justice; as BC’s lawyers wrote in support of their motion to quash the DOJ’s subpoena, the effort to compel disclosure of some interviews but not others is a “classic fishing expedition.” The police project here seeks political ends, not a disinterested settling of all accounts.

There are clearly a number of contests going on in this exchange that are not visible to outsiders, and the politics of the matter are not clear to me. But it is absolutely clear that politics is exactly the heart of these subpoenas: someone is out to settle a score, and they’re trying to use a body of academic research to do it. And yet the academic response is unmistakably muted.

The haphazard and foolish G.O.P. effort to target William Cronon for political retribution over his engagement in Wisconsin state politics produced waves of frantic commentary decrying the threat to academic freedom. That effort has ended; Cronon was not destroyed, not damaged, not silenced. No one could ever have seriously believed that a distinguished senior historian would be driven to the shadows by some fools with a computer and a postage stamp.

But here, the potential chilling effect is perfectly clear, and the political nature of the inquiry is unmistakable. And yet, compare this to this, or thisto this. Why is this subpoena producing so little discussion?

ADDED LATER: An earlier New York Times story on the subpoena did note that the BC interviews were of participants from both sides, and the subpoena was only for accounts from republicans.

Notes from a Balinese Cockfight, Officer

Notes from a Balinese Cockfight, Officer
Cliopatria – History News Network
Chris Bray

Congratulations — you’ve been deputized. You might want to buy some handcuffs.

In a May 23 op-ed piece at the Boston Globe, guest columnist Juliette Kayyem argued that Boston College should just shut up already and hand the federal government their tapes and notes from interviews with members of the Irish Republican Army. Researchers from the college made poorly considered promises of confidentiality that they cannot keep, and that’s that. “Little will be gained by a drawn-out fight in court. BC should hand over the specific tapes requested and, in the future, require greater oversight and transparency on research projects implicating criminal conduct.”

Beats me what any of that means, because Kayyem doesn’t bother to say. Who should provide this greater oversight, and in what form? When does a project implicate criminal conduct, and where do researchers locate the threshold for that determination? If you’re interviewing former Black Panthers, should you just stop right now, or should you wait for them to say something incriminating before you rip the tape out of the machine and run to fetch the authorities?

But anyway, Kayyem writes, none of this talk is worth the candle: “Terrorist organizations kill innocent victims; it’s what defines them. Replace IRA with Hamas and we wouldn’t be having this theoretical debate.”

Replace the IRA with Hamas, and the debate still isn’t “theoretical.” Government can conduct its own investigations. Scholars aren’t cops, and aren’t adjuncts to law enforcement agencies. Manning Marable spent years trying to figure out who killed Malcolm X. Should the FBI have grabbed his notes and tapes a few years ago, as a substitute for their own investigation? Robert Churchill, a history professor at the University of Hartford, studies both the early American militia and contemporary militia groups. Clearly, a federal grand jury should start going through his scholarship. Name your own examples — I can think of a dozen of the top of my head. In the meantime, feel free to study any group that has never angered or opposed any government anywhere. Oral history of a Scottish knitting club that firmly supports the police? You are conditionally cleared to begin. But be careful.

By the way, the Globe doesn’t mention Juliette Kayyem’s background and credentials at the bottom of the essay that casually argues for Boston College to stop resisting the government and start condemning IRA interviewees to death (not that she mentions that last part). But they’ve offered that information at the end of some of her other columns: “Juliette Kayyem, a guest columnist, is former homeland security adviser for Massachusetts and most recently served as assistant secretary at the US Department of Homeland Security.

In a thoughtful op-ed piece, a recent senior official of the Department of Homeland Security encourages academic researchers to immediately hand over to the federal government a set of notes and tapes that will provide evidence of criminal activity. Maybe we can get some of those cool junior federal agent badges as a trade-off.

And maybe oral history subjects should be Mirandized.