Monthly Archives: January 2012

Harvey Silverglate Gets To The Core Of Boston College Subpoena Scandal

I can’t sing the praises of this article too loudly. Written by Harvey Silverglate, a Cambridge, Mass. based attorney and journalist, with assistance from Daniel Shwartz, this article, which can be read on the Forbes.com site here, gets to the issues of this case so far unexplored by the media, notably the behavior of Judge William Young, the negative effect on source protection that his barring myself and Anthony McIntyre from the case has had, the effect his decisions will have on limiting future legal remedies if we lose the appeal in March – a ruling which heavily favors the US government and PSNI – and the failure of the judge to raise the whole contentious issue of the Allison Morris/Ciaran Barnes episode and the unexplained failure of the PSNI to follow up their February 2010 articles. And finally, of course, the utterly disastrous impact Judge Young’s decision, if not overturned by a higher court, will have on academic freedom in the United States.

I personally hope the folk at Boston College, whose challenge on behalf of that freedom ended at the first hurdle, read this and hang their heads in shame. There are faults in the piece. He misspells my name (as I did his briefly!) and confuses the Irish police with the Northern Irish police but these are minor errors. It is a great article, amongst the best yet written and I hope it presages real concern about this case amongst American civil libertarians. It certainly ought to. Here it is:

Harvey Silverglate

Boston College Researchers Drink with the IRA, and Academics Everywhere Get the Hangover

The Belfast Project was supposed to recount history, not make it. But thanks to a federal court in Boston, the Project’s good faith attempt to gather historical evidence may create a precedent detrimental both to academic freedom and to historians’ ongoing efforts to inform the future about the past.

The Belfast Project began in 2001 at Boston College—the brainchild of ex-IRA member Anthony McIntyre and journalist Ed Maloney—as an attempt to get to the bottom of “The Troubles” in Northern Ireland. The violence had slowed down considerably by then, and in July 2005, the IRA made a public commitment to disarmament and complete nonviolence. Through extensive interviews with former IRA members, McIntyre and Maloney would attempt to encapsulate the past, and to construct enough narratives of it to prevent a single “victor’s story” from conquering all the others.

In order to solicit the most candid narratives possible, the researchers instinctively – but perhaps erroneously, it turns out – promised to keep the interviews under seal until the subjects die. Academics —like the institutions that foster them — often take the long view, and if a couple of decades are necessary to allow for the truth to eventually surface, then so be it.

Problems, however, arose when one of the research subjects – former IRA member Dolours Price – was reported by an Irish newspaper to have admitted to driving Jean McConville, a mother of ten and suspected collaborator whose body was found in 2003, to her eventual killers in 1972. Irish police suspect that Ms. Price knows something further about the murder of Ms. McConville, and may have confessed her involvement to the Boston College researchers.

Members of the Irish police asked the State Department to intervene, and the Department of Justice, acting on behalf of the Irish authorities pursuant to treaty, demanded that the school turn over the tapes. Boston College initially fought the subpoena in court, but on December 16th, Boston federal district judge William Young upheld it, and ordered Boston College to turn over the tapes concerning Ms. Price.

Oddly, Boston College did not itself appeal the adverse lower court ruling, but McIntyre and Maloney, who Judge Young inexplicably had denied formal admission to the litigation because, he said, Boston College could itself adequately argue for a scholar’s privilege, filled the vacuum and filed their own notice of appeal with the U.S. Court of Appeals for the First Circuit. They argued that certain revelations in the tapes could endanger their lives—and the appellate court temporarily stayed Judge Young’s enforcement of the subpoena pending its resolution of the complex but vital issues. Oral arguments on the matter are scheduled for March.

Burns Library, Boston College - home of the Belfast Project archive

Moreover, on January 20th, two months before oral arguments on the appeal will take place, Judge Young ordered BC to transfer seven more interview subjects’ transcripts over to the feds for transmission to the requesting Irish government, with the caveat that the transfer must take place within a mere three days of the appellate court’s eventual decision. A cynic would say that Judge Young’s refusal to allow the two scholars to join Boston College and intervene in the case, followed by his allowing a mere three days after the appellate court’s resolution of the issue before the materials would have to be surrendered, were indicative of his intent to get the materials into the government’s hands before the scholars might take the matter to the Supreme Court – a rush to judgment, so to speak, rather than a slow and deliberative process to resolve a profoundly important First Amendment issue.

Taken together, Judge Young’s two decisions represent a significant blow to academic freedom that could forever chill groundbreaking and important research. And, in a legal arena where there is considerable room for the wise invocation of judicial discretion, the decision is an unnecessarily severe and rushed one, destructive of important long-term societal interests.

Judge William Young - "(His) two decisions represent a significant blow to academic freedom that could forever chill groundbreaking and important research."

While Judge Young’s more lengthy December 16th decision focusses primarily on the United States’ treaty with Ireland (the treaty that leads to mutual cooperation in criminal matters), he does spend a few pages discussing academic freedom. Young recognizes that there is relatively little case law discussing the specific rights of professors to confidentiality in their delicate research; however, to his credit, Young recognizes that as academicians engage in behavior similar to that of journalists—they gather information and then disseminate it to the public, often exposing something either overlooked or deliberately covered up—the law would seem to protect them in much the same fashion it protects reporters. Young states that “the research of both journalists and academics raise similar concerns about chilling speech,” and that therefore “academicians engaged in pre-publication research should be accorded protection commensurate with that which the law provides for journalists” (internal citations omitted). So far, so good.

As any follower of the news already knows, despite the “heightened scrutiny” necessary when demanding materials from a journalist, reporters are sometimes told that the law compels them to give up their sources, or the as-yet unpublished information provided by their confidential sources, or else face certain consequences, including Draconian fines and even possible jail time for contempt of court. But there is a high threshold for a court’s taking such drastic action: as Judge Young admits in his opinion, in order to compel a journalist to give up his materials, a court must be convinced, first, that the material in question is “non-frivolous” and “directly relevant” to an ongoing investigation, and, second, that the materials are not “readily available from a less sensitive source.”

The “thresholds” may not seem like much at first glance. Surely frivolity is in the eye of the beholder (and a murder investigation is usually non-frivolous) as is “ready availability.” But courts that recognize and honor the importance of free speech view the subpoenaing of journalists as an absolute last resort, the final recourse when all other possible modalities for the state’s carrying out its vital functions have been exhausted.

Judge Young, however, dispatches the two threshold questions seemingly with a shrug. While he reasonably suspects that the “subpoenae are…relevant to a nonfrivolous criminal inquiry,” he simply states, while providing no proof or discussion, that the information sought is not “readily available from a less sensitive source.” Judge Young’s only proof of such a claim is his citation of a New York Times article that “publicly released statements by Belfast Project interviewee Brendan Hughes [now deceased] include a statement that he admitted his affiliation with the Irish Republican Army for the first time only because of his personal trust in Project interviewer Anthony McIntyre.” Judge Young then moves on from the issue, taking at face value that it is enough that one interviewee has made public statements celebrating the confidentiality of the oral history project, and that there are no other resources available from which the government could glean the information.

Brendan Hughes & Gerry Adams in younger, happier days as Long Kesh internees

Such a declaration is difficult to understand. Surely, the revelation that started the investigation would be a place to start. Dolours Price allegedly admitted to participating in the McConville murder, and yet there is no recitation in Judge Young’s opinion about Irish authorities’ efforts to dig up information or witnesses confirming and expanding upon this alleged admission.

There is no discussion of the Irish police investigation, or any other avenues that may not have been exhausted. Judge Young made little attempt to find out that, in the interests of justice, there was absolutely no alternative to subpoenaing academic research. He simply quoted the New York Times and moved on. Holding a hearing to take evidence on this crucial question would, of course, have taken time and effort, but the profundity of the academic freedom interest surely would have justified such additional exertions.

Judge Young’s truncated inquiry and terse response to the scholars’ and the college’s pleas are important; in the interests of protecting freedom of scholarly inquiry, the extraordinary step of subpoenaing confidential academic research must be avoided if at all possible, a step to be taken only in the most exigent of situations and as a last resort. Academics play an important role in society for the enlightenment of current and future generations; they are not mere detectives bedecked in tweed and working for governments.

Judge Young has rendered a profound disservice to the interests of academic freedom and of history itself. But his follow-up decision, published January 20th, adds insult to injury. In his January 20th decision, Judge Young orders Boston College to turn over additional transcripts from seven interview subjects within three days of the Court of Appeals’ ruling. As the Supreme Court obviously will not be able to agree to hear the case within three days of the appellate court’s decision, Judge Young has ensured that the scholars will be involved in a frantic rush to try to obtain further review, or at least a further delay from either the Court of Appeals or the Supreme Court, in the event they lose on the issue in the Court of Appeals for the 1st Circuit. After all, once the tapes have been turned over, there will be no live legal issue to pursue up to the Supreme Court. This important question would be, as the lawyers say, moot.

Academics are not used to standing up to courts—we are unaware of any cases where an academic has chosen to sit in a jail cell rather than give up his or her informants or research. But reporters take the drastic step of almost welcoming jail sentences for a reason; if they do not make it tremendously inconvenient, and embarrassing, for the government to seek information from them, then investigative journalism would not exist, for confidentiality would be impossible. The Belfast Project could have become a paradigm-setting blow in favor of academic freedom: instead, it has been an opportunity for the federal district court and the Department of Justice to do the inadequately examined bidding of a foreign government to water down academic freedom, all in the name of assisting a forty year old investigation in Ireland.

Boston College – Letter From Senator John Kerry to Secretary of State Hillary Clinton

Statement After Court Hearing

This afternoon’s judgement in Boston comes as no surprise.  However we will appeal Judge Young’s decision, along with the rest of our case, which will be heard in the US Court of Appeals in March when we expect a much more positive outcome.

We would like to welcome Judge Young’s remark about the Belfast project: “I’ve read thousands of pages of the transcripts. This was a bona fide academic exercise of considerable intellectual merit.”

This is the answer to those of our critics in Ireland who have labelled the Belfast Project ‘an anti-Adams exercise’. They have not read the interviews, Judge Young has.

We would also like to thank our attorneys Eamonn Dornan and Jim Cotter for their sterling efforts on our behalf and also our many supporters here in Irish-America who have rallied to our cause. The fight goes on.

Ed Moloney & Anthony McIntyre

A Reply to Ted Folkman

Once upon a time, a long time ago, in fact a very, very long time ago, the United States was a radical place where people were quick to stand up to authority when it abused its powers. It was these attitudes that led the American colonists to throw the English out of the country, declare independence and set up a republic free of monarchical interference from London. America set an example first to France which had its revolution in 1789, thirteen years after the Declaration of Independence, and then to Ireland where an uprising took place in 1798 and was brutally put down by Lord Cornwallis, the same barbarian whose ass had been badly spanked by the American colonists at Yorktown. The United Irishmen rebellion, as it was known, laid the foundations of modern, non-sectarian Irish Republicanism, the outworkings of which are plain to see at Boston College this week. The United Irishmen’s revolt and that of the French were essentially about the same things that had inspired the Americans: a desire to throw off the yoke of intolerable and unjust authority.

But as I said that was long, long ago. The America of 2012 is as different from that of 1776 as it is possible to be. The modern America is the America of the one per cent versus the ninety-nine per cent, of corporations who control what people eat, read and watch on television, of politicians who are corrupted by the same corporations’ profits and, for the last decade, an America of the security state, where fear of a poorly-armed, brown-skinned enemy many thousands of miles away has created a profitable industry of watchers and scaremongers, a government which spies uncontrollably on its citizens, where drones fly above homes and roads filming their every day activity, of a policing system that routinely employs agents provocateurs to invent and amplify the threat and where just the mention of the word terrorism is sufficient to induce communal obedience and compliance and where a President with a stroke of a pen can imprison an American citizen for life or sign his or her life away.

It is also an America where deference to power is commonplace and its polar opposite a rare and infrequent phenomenon. Unquestioning obedience to authority and power, driven by fear of the consequences of doing otherwise and the personal benefit that can derive from conforming to it, is invariably the rule in modern America. If the Americans of 2012 could be transplanted back to the America of 1776, there would have been no revolution, no declaration of a republic, no written constitution, no Bill of Rights and France and Ireland – and arguably the world – would be immeasurably poorer for it. Americans would still be kissing the ass of the Queen of England and a very different red, white and blue flag would flutter over its buildings. When the Occupy Wall Street movement erupted briefly on the streets of New York and elsewhere last Fall the most remarkable thing about it was that it had happened at all. The America of 1776 is a dim, distant thing but so too is the America of the Sixties and Seventies.

Throughout the saga of the Boston College archives, one voice has been notable for its dependable defense of Boston College as it abandoned its interviewees, fled the legal field of battle and left its researchers alone to fight on to protect those to whom the college had given such solemn assurances of confidentiality when they agreed to be interviewed about their lives in the IRA and Ulster Volunteer Force (UVF).

I have never met Ted Folkman. I am sure he is a good person who loves his family dearly and his dogs and cats almost as much. I also hope that he can be persuaded out of his dogged and pathetically predictable advocacy of Boston College’s legal strategy and criticism of that of the researchers, and by proxy the interviewees which he has pursued through his blog Letters Blogatory. I’d like to think that he arrived at his various positions on the Boston College subpoenas by dint of intellectual discovery rather than deference to local power and wealth – but I would have to be persuaded. I have ignored most of his posts on the subject or at least not allowed myself to get worked up by them. But a recent posting proved to be the unbearable straw and so myself and Anthony McIntyre drew up this reply to Ted Folkman, which I hope you enjoy:

Ted, or to give him his correct name, Theodore Folkman

Ted Folkman, a Boston based lawyer, is living proof that because one follows a case it does not follow that they come remotely close to grasping what lies at the heart of it.

He writes that he has been struck by a change in emphasis among those ‘publishing articles critical of subpoenas.’ In essence he means Ed Moloney and Anthony McIntyre given his accompanying reference to ‘their defeat in the District Court.’

There has not been a shift in emphasis but rather an expansion of the discussion to encompass the conditions that helped produce the crisis that has beset the Belfast Project. The fight to prevent the enforcement of the subpoenas, although abandoned by Boston College, is very much a work in progress. Are we in court contesting the enforceability merely for the optics?

Ted Folkman seeks to frame the current debate in terms of an assumption on our part that the subpoenas are enforceable. The problem is less that the subpoenas are enforceable but more that they could ever have been issued in the first place. Boston College is on public record as stating that ‘the arrival of subpoenas was ‘totally unexpected’. It found them totally unexpected, despite its current waffling about ‘to the extent American law allows’ only because it was certain no such action was possible; an assurance it separately conveyed to both sides of the Belfast Project, loyalist and republican.

In the contract given to the Belfast project director it was stated that:

each interviewee is to be given a contract guaranteeing to the extent American law allows the conditions of the interview and the conditions of its deposit at the Burns Library including terms of an embargo period, if this becomes necessary…

Yet that undertaking was never put into effect. BC did not give each interviewee a contract to this effect and the question must be why not? Why did they break their word? What they did was bury the ‘American law’ reference in a separate contract with Ed Moloney. Had this reference been included in the donor agreement this would have been a red flag to everyone, project director, interviewers and interviewees alike and the project would have been dead in the water. But the reference was excluded. Why? Was it because BC did not want to kill off the project at this point? That they did not want to lose this opportunity to acquire a very valuable historical archive? These were BC’s contracts not ours. BC stated that the operative contract was the donor agreement which encapsulated what they stipulated at the outset, that nothing would be allowed into the Burns Library that would be at legal risk. The question then becomes, did BC deliberately mislead the project director, interviewers and interviewees?

We will be charitable and assume that Ted Folkman did not fully read the blog post that we separately posted over the weekend that addressed this issue and that he entirely missed the contribution of the Loyalist group involved in this project, the Ulster Volunteer Force (UVF).

For obvious reason Anthony McIntyre was not involved in the dealings that led to the UVF’s inclusion in the project and aside from one brief meeting in Belfast, Ed Moloney, then based in New York, was not substantially involved either. Instead representatives of that group held their own face-to-face meetings with senior BC staff which were, by their account, dominated by the issue of legal safety.

One of their number gave us this quote, which we reproduced: ‘they i.e. BC)…..from day one, gave guarantees that were directly related to the interest this material would have from the PSNI.” Allow us to translate in words that close down the space for Ted Folkman to proffer any alternative plausible interpretation: we asked whether the cops could ever get their hands on the interviews and we were told no.

At the heel of the hunt everything lies within the donor agreement, the operative contract. While it can be argued with hindsight that the reference to American law can be cited as covering the issue of confidentiality it nevertheless does not single out and specify confidentiality. In fact it could as easily be argued that given BC’s own wording in the donor contract, which the College crafted, the American law reference was framed with ownership of copyright in mind, which was very clearly written into the contract. This concerned Brendan Hughes so much that in his own donor agreement he imposed limits on the effects of copyright belonging exclusively to Boston College.

The confidentiality issue appears very much as a standalone matter in the contract. There is a very specific reference to confidentiality in the donor contract: ‘the ultimate power of release shall rest with me.’ It is clear that ‘ultimate’ is not BC, the courts or anybody else but the interviewee. If American law did not permit ‘ultimate power’ of release to reside with the interviewee why was it ever part of the donor agreement? If a court constituted a higher power that rendered the ‘ultimate power’ of the interviewee redundant why write into the donor contract that the interviewee had such power?

The sin of omission Ted Folkman refers to finds its equivalent in the case of the driver who omitted to sound his horn and then blamed the pedestrians he mowed down.

Mr Folkman also argues that:

Promises of confidentiality are always subject to the power of a court to issue subpoenas, except in cases where there is an evidentiary privilege (the best known examples in the US: the attorney/client privilege and the priest/penitent privilege).

Yet given the highly sensitive nature of the Belfast Project, for it not to have specified the nature of limitations is an omission that begs for much greater scrutiny than Ted Folkman is prepared to give it with his dismissive comment ‘I don’t think it’s particularly blameworthy to have omitted something that should have been generally understood.’

Why should it have been generally understood if in assurance after assurance, and also in its donor contract, Boston College stated that the archived material was subject to the ‘ultimate power’ of release by the interviewee? Surely, such an ambiguity-free undertaking, were it not given in bad faith, ought to have had any derogation explicitly pointed out in the same document?

That one simple line of Folkman, ‘promises of confidentiality are always subject to the power of a court to issue subpoenas’, could easily have been inserted into the donor contract and all current problems would never have arisen. As Ed Moloney has correctly pointed out there would have been no archives to invade had that been in the contract.

To boot, we do not have to guess what Boston College’s own thoughts on the matter of privilege were. In his May 2000 fax the Burns Librarian stated “Nevertheless, the First Amendment to our Constitution is greatly cherished here, and I suspect the courts would look upon these interviews as privileged information.” If, Boston College resiled from this position where did it make this clear? Certainly not in the donor agreement, the tone and tenor of which resonated with the notion of privilege. The term ‘ultimate power of release’ does not lend itself to any other inference.

Moreover, Boston College has shown its own contempt for the notion ‘to the extent American law allows.’ American law allowed it not to hand over the entire republican archive to the court for in camera review; American law allowed it to appeal the decision by the District Court to hand the Dolours Price interviews over to British authorities. Yet, in spite of ‘the extent American law allows’ Boston College did not make use of such allowance and pulled out of the case. It is quite prepared to allow the archive to be handed over to British authorities even though American law allows Boston College to go much further in its legal battle than round one. This is evidenced by the fact that the archive remains on US soil not as a result of Boston College’s legal strategy which has clearly failed, but because we are fighting the case ‘to the extent American law allows.’ How come Boston College is not doing the same?

Ted Folkman displays a stultifying sense of respect for institutional authority so breathtakingly deferential that it raises the issue of what trust can be placed in an institution that is quite prepared to let its researchers and research participants go to prison before making any sort of ethical stand itself. Has he thought through the implications of what he is actually advocating, that researchers and their participants should go to prison while the university should eat, drink and be merry? Such gratuitous acquiescence in the institutional abrogation of ethical responsibility is a slave owner’s charter not a code of ethics for a modern university.

Boston College Statement

Statement to supporters from Boston College researchers Ed Moloney & Anthony McIntyre.

Contrary to widespread media reports, this Tuesday’s court hearing in Boston will not decide the outcome of our fight to prevent AG Eric Holder from handing over IRA interviews to the PSNI in Belfast.

The important hearing in this case will instead take place some time in March before the US Court of Appeals when our lawyers will argue that Eric Holder failed to take into account the damage these subpoenas will cause to the Irish peace process before issuing them against Boston College.

Our lawyers will also argue that Holder should take into account the US-UK extradition treaty which forbids the extradition of any person for an offense allegedly committed before the Good Friday Agreement of 1998.

This appeal will be unaffected by Tuesday’s hearing on the stay against handing over the interviews which we secured in December. Assuming the judge rules against us, we will automatically appeal and the case will be subsumed into the more important March appeal.

This means that the fight against the subpoenas will continue no matter what happens on Tuesday and we urge all our supporters in the United States to contact their  members of Congress to protest Eric Holder’s action against Boston College and to urge him to withdraw the subpoenas.

Final legal papers for that appeal have to be lodged by February 27th, which means that we have one month in which to persuade Eric Holder to drop this disastrous, one-sided action. Please contact your local member of Congress to protest this outrageous action.

No Subpoenas For Patrick McCullough

There is a poignant letter in today’s Irish Times from a Fr Joseph McCullough about the way his 17 year-old brother’s 1972 killing in Belfast has been treated by the  authorities down through the years, from the days when the RUC controlled policing through to the modern PSNI and Historical Enquiries Team (HET).

He writes: “Like most, if not all, murders of this kind, it remains unresolved. My brother’s killing was never investigated, and requests from my family for relevant reports and information have drawn a complete blank from the RUC/PSNI. They informed my family that no paper work or forensic reports in relation to Patrick’s murder exist. They were apparently destroyed in a police station fire!”

It is what he wrote next that struck me hardest, given the lengths to which the PSNI and the HET have gone recently – after a near 40 year gap, mind you – to investigate the killing of Jean McConville, an inquiry which has seen the HET employ the full powers of the US judicial system, 3,000 miles away from PSNI headquarters in East Belfast, to obtain alleged evidence in the case. Contrast the subpoenas served on Boston College and the hounding of myself and researcher Anthony McIntyre that will likely follow if they succeed with Fr McCullough’s experience at the hands of the exact same people:

“A number of years ago I raised these concerns with the chief constable of the RUC/PSNI and the Historical Enquiries Team. I can only describe its response as abysmal.”

The other striking thing about the killing of his brother Patrick McCullough is that it happened in the same year that Jean McConville was disappeared by the IRA, in 1972, although a half a year earlier. Patrick McCullough’s killing has actually gone unsolved longer than Jean McConville’s.

Here’s what happened, courtesy of an excellent and thorough report in 2003 by Sharon O’Neill, then of the Irish News: “On the night of June 23 1972, Patrick was with a group of young Catholics including his girlfriend, standing chatting outside a bank at the corner of Atlantic Avenue in north Belfast, not far from his home.

“It is still a regular meeting spot for Catholic teenagers, but is located on the corner of a road which on numerous occasions has proved to be an easy escape route for both UVF and UDA killers and would-be murderers.

“Loyalist gunmen opened fire from the safety of their getaway car, hitting Patrick and his 14-year-old friend, who collapsed to the ground bleeding. Despite his proven resilience, Patrick’s injuries were too severe and a priest administered the last rites at the scene. His friend survived.”

The circumstances of Patrick McCullough’s short life and death are no less sad and deserving of sympathy than Jean McConville’s. He was born with spina bifida, had major surgery when he was just eight months old and was lucky to survive. At 14 he nearly drowned trying to save a younger brother, Gerard during a holiday in Co. Down. He had just got a job as an apprentice compositor at the Irish News when his life was snatched away. Jean McConville left behind ten orphaned children; Patrick McCullough left behind thirteen siblings and grieving parents.

According to Fr Joseph McCullough’s letter it seems that the HET and PSNI have made no credible effort to locate his killers. This despite the fact that Sharon O’Neill was able, 21 years after the killing, to put names to the killers: “Although no-one admitted responsibility”, she wrote, “it is believed the UVF was behind the murder and further inquiries by the Irish News have established that the identity of the killers was well known, yet not one person was arrested or charged.”

This seems to me to raise a key point about the HET, and that is whether it is a fit and proper agency to investigate Northern Ireland’s bloody past. Fr McCullough raises this issue, albeit tangentially and by so doing highlights a fundamental flaw in the HET’s mindset, at least as we know it be or how it would like the world to see it. He writes:

“Also of deep concern to my family are the number of allegations that have surfaced in recent times about possible security force collusion in the murders of innocent Catholics in the North, especially in North Belfast.

“These allegations ought to be thoroughly investigated and should cause great concern for the judicial integrity of the state. Such concerns should also address the rampant institutionalized sectarianism in the RUC during the Troubles.

“The fact that many murders remain un-investigated and unresolved should be a cause of deep shame to the British state, and to all political parties in the North that supposedly value truth and justice. It represents a monumental failure on their part that the demands of justice have been so pitifully disregarded down through the years.

“…….Surely the time has come for the UK government, including its Assembly at Stormont, to order a public inquiry into the failure of its police to investigate and to bring to justice those responsible for the sectarian murders of innocent non-combatant victims.”

If you want a glimpse inside the mind of the HET regarding this sort of issue, there’s no better place to go than its own video which is available on YouTube. The film features four victims, the son of a Catholic shot dead by the UDA; the sister of a British soldier shot dead, presumably by the IRA; the husband of a victim of the IRA’s Shankill Road Fish Shop bomb and the brother of two Catholic men killed by the UVF. And what’s missing? Well any relatives of people killed by the police or army, that’s who’s missing. Seemingly they don’t rate a mention on the HET video and that is not insignificant surely? It means they don’t really appear on the HET radar and in such a way are almost airbrushed out of existence. The video provides a subliminal and fascinating peek into the HET’s consciousness.

That’s not to say that in the video the HET’s commander Dave Cox does not at all address the issue of security force collusion in killings. He does, but look at how he deals with it: “Could his death have been avoided, was there collusion? Most times we are able to actually answer and dispel those worries.” In other words: “Our work is about nailing all those terrible terrorists and setting minds to rest about the role of the RUC and army.” It’s an approach that dovetails exactly with the state narrative of the Troubles, with the state and its forces on the good side and everyone else on the bad side. Problem is, it wasn’t ever as simple as that.

Fr. McCullough addresses an issue that is at the heart of any truth recovery process. It is not just about the IRA and UVF but also what the police, military and intelligence agencies did and, judging by that sort of evidence, the HET is simply not the body to do that job.

In this regard, the Provos’ attitude to the Boston College subpoenas becomes even more perplexing. As anyone following media coverage of the issue must know the Provos and their various surrogates have used the affair to mount attacks on myself and Anthony McIntyre. It is clear what motivates them: revenge for the product of the archive, notably a disturbing alternative version of the 1981 hunger strike and an angry rebuttal by Brendan Hughes of Gerry Adams’, “I was never in the IRA” nonsense.

If I was in the Provo leadership there are two other aspects of the Boston College subpoenas that I would be much more worried about and which I would be channeling my energies to counteract, if I were them.

The first is the point made by Fr. McCullough about the RUC’s core sectarianism and the implication that the HET is incapable and probably unwilling to address this fundamental reason for political instability and violence in Northern Ireland. The HET is an integral part of the PSNI and Sinn Fein signed up to the PSNI, promising to support and defend it in the new dispensation. This means SF supporting a truth recovery process which implicitly accepts the state’s version of what happened, and rejects theirs, and which seems mentally ill-equipped and/or unwilling to deal with the state’s role in all the killing in the way it should be.

The HET also seems hell bent on bringing as many people as it can before the courts for events that happened before the Good Friday Agreement of 1998 and by so doing breach an understanding that pinned the peace process, that a line would be drawn under the past. Will Sinn Fein back Fr McCullough’s call for a public inquiry into the failings of the RUC? We’ll see, but in the meantime they prefer to go for me and Mackers.

The second has to do with why Patrick’s McCullough’s killing remains un-investigated and unsolved while extraordinary resources are being poured into probing Jean McConville’s death. People will say, well that’s because it was such a sad case, a widowed mother of ten thrown into an anonymous hole in the ground. It deserves such treatment. That may be true but Patrick McCullough’s killing was just as sad to his family and Jean McConville was not the only person ‘disappeared’ by the IRA.

If the truth be told, and as everyone knows, the feature of the Jean McConville killing that really sets it apart is the alleged role played by Sinn Fein president Gerry Adams. Now the Provos probably think that the ever cautious Mr Adams will never face criminal charges over the matter, either because neither the British nor Irish states will ever countenance such a thing or because he was cute enough back in the early 1970’s to construct firewalls between himself and the wet end of IRA business.

Perhaps. I cannot say. But if I was the Provos I would be a little less untroubled about this issue. The HET seem set on providing evidence for criminal proceedings against someone. It may not be Gerry Adams who ends up in the dock but if the PSNI get their way someone probably will. And if that happens the evidence provided in court can then be used legally in civil proceedings against Mr Adams and one way or the other he will end up in the dock. Go check Helen McKendry’s public statements if you doubt what I say.

This means the HET investigation carries profound implications for the Sinn Fein leader, for his party and for the peace process. But as I say, the Provos are more concerned with getting in digs at me and Mackers. Go figure. I can’t, except to say I guess some people just can never get away from the back streets.

A Reply to Niall O’Dowd

Niall O'Dowd

Yesterday, Niall O’Dowd published an article on his website accusing Anthony McIntyre and myself of tricking Republican interviewees into participating in the Boston College oral history project with false promises of confidentiality. The article below is our response to this false claim.

Readers should bear in mind two things: firstly, the Provisional leadership dislikes the oral history project because a) one of the participants, Richard O’Rawe went on to publish an inside account of the 1981 hunger strike which strongly challenged that leadership’s version of the protest and raised grave questions about its behavior towards the fasting prisoners, and b) another of the interviewees was Brendan Hughes who was motivated by his anger at Gerry Adams’ denial of his own IRA past to tell a no-holds barred account of his and Adams’ life in the IRA. In other words the oral history project challenged the official narrative and history – and thereby their sole control – of two key aspects of the Provisional leadership’s story: how it dealt with the hunger strike and Gerry Adams’ own life story.

Gerry Adams

Had Richard O’Rawe not decided, against our advice, to tell his story in book form, his interview would have remained sealed until his death and his controversial version of the 1981 hunger strike would have remained hidden from view for many years. But publishing his own story was Richard’s right and, as he felt it, his duty. Likewise Brendan Hughes was insistent that his interview be published after his death rather than just made available to scholars. The rest of the archive includes a wide spectrum of republican viewpoints and organisations, from differing generations and geographical locations. Happenstance has meant that the first two projects to result from the archive were these. The idea that the archive was an anti-Adams’ project, as claimed by O’Dowd and the Provisional leadership, is therefore a myth. In this context it is worth reflecting on this question: if Gerry Adams had been less inventive about his past would Brendan Hughes have ever contemplated talking as openly as he did?

The second point to bear in mind is that Niall O’Dowd is a close ally and friend of the Provisional  leadership. Some might be inclined to describe him as an apologist for them and unofficial spokesperson. That O’Dowd’s critique of the Boston project echoes, almost to the word, that of the Provisional leadership is, in our mind, no coincidence. Reading O’Dowd’s article one is tempted to reach for Mandy Rice-Davies’ famous observation: “Well he would [say that], wouldn’t he?”

Appealing though it might be to leave the matter at that, we have decided to explain the background to the oral history project and the issue of confidentiality as it affected both Republican and Loyalist participants as fully as we are able and to answer O’Dowd’s points. Incidentally he and others seem, or wish to forget that the UVF was part of this project. Does he or anyone else imagine for a moment that such an organisation would take part in this enterprise without ensuring for itself that there were adequate assurances of confidentiality from Boston College. That these assurances were given by the college is beyond doubt. The question is whether they were ever meant.

This preamble has been written by me. The article that follows was written by myself and Anthony McIntyre:

There is clear evidence that Niall O’Dowd does not know ‘full well’ the background to Boston College’s Belfast Project. And on the basis of not knowing ‘full well’ he pumps out a piece riddled with errors. What evidence O’Dowd has found is as clear as the mud he seeks to sling.

This is somewhat unfortunate because for a while Niall O’Dowd strongly opposed the British government’s efforts to invade Boston College’s oral history archive.  Now he has opted to say nothing about the British and instead seeks to exonerate Boston College and the American courts.  All in the dubious service of blaming the researcher and project director.

Quoting from a ‘Boston College affidavit’, which was not in fact a Boston College affidavit, O’Dowd writes: “Prior to the commencement of the project, Robert K. O’Neill, the Burns librarian (where the tapes were to be housed) cautioned Moloney that although he had not spoken yet with Boston College’s counsel, the library could not guarantee the confidentiality of the interviews in the face of a court order.”

The striking aspect of this and other parts of his May 2000 fax to Ed Moloney – which O’Dowd fails to cite – is that it is clearly O’Neill’s preliminary judgement of the legal situation. For instance, he went on to say: “Nevertheless, the First Amendment to our Constitution is greatly cherished here, and I suspect the courts would look upon these interviews as privileged information.”

This was one reason why the project was not started in the summer of 2000 but was delayed a further eight months. We required very specific assurances and we waited until we got them. When Boston College finally came back with those assurances, which it later provided separately to the loyalist side of the project, the green light was given.

And what were the loyalists assured? We were not directly involved in their deliberations but some of their number had face-to-face meetings with senior college staff in Belfast and in their own words, these representatives of Boston College: “…..from day one, gave guarantees that were directly related to the interest this material would have from the PSNI. (BC staff) gave these guarantees formally as official representatives of BC and did so putting on the line the integrity of this unrivalled Irish Studies collection in this illustrious academic institution. At every meeting subsequently, discussion centered around how the project was coming along and every time that discussion touched upon how none of this could have happened without the iron clad guarantees that predicated the whole thing.”

O’Dowd then proceeds to cite Boston College spokesperson Jack Dunn’s assertion that ‘an agreement was signed between Boston College and Ed Moloney that stated that each interviewee is to be given a contract guaranteeing confidentiality to the extent that American law allows.’

While this is not in dispute, it seems to be a late in the day fallback position adopted by Boston College to shift the blame onto to other shoulders. Their position when the court case began last May was substantially different. As the Boston-based lawyer Ted Folkman points out at Letters Blogatory :  ‘in its motion to quash the subpoena, Boston College did not suggest that the promise of confidentiality was a promise only to the extent permitted by American law’.

That aside, one would expect the contract drawn up by Boston College to have this health warning, if that indeed is what it was, written clearly and unambiguously into the confidentiality contract. So what exactly did this donor agreement say?

The donor agreement signed by interviewees stated: “Access to the tapes and transcripts shall be restricted until after my death except in those cases where I have provided prior written approval for their use following consultation with the Burns Librarian, Boston College. Due to the sensitivity of content, the ultimate power of release shall rest with me. After my death the Bums Librarian of Boston College may exercise such power exclusively.”

There was no caveat in the contract drawn up by Boston College’s attorneys stating that the type of confidentiality it guaranteed would not withstand a court order. Clearly BC’s legal opinion was that it was unnecessary. Otherwise why not insert the caveat if the type of confidentiality stipulated in the contract in any way clashed with American law?’

O’Dowd goes on to approvingly cite Jack Dunn of Boston College who argued that his ‘good friends in Ireland seem to lack a fundamental understanding of the American legal process.’

That is true. We are not lawyers. Boston College has its own law school and legal counsel yet for all of that it seems not to have understood the American legal process. When we, who ‘did not understand’ American law, warned Boston College that a second subpoena could be imminent, we were told that would not happen. And the reason given later: ‘……practiced lawyers … people who were formally schooled in international law’ had ruled out that eventuality. A second subpoena duly arrived. So much for Boston College’s knowledge of American law.

Furthermore, in a September 2011 email a Boston College official said in respect of the subpoena ‘the action of the PSNI Special Crimes Division was totally unexpected.’ A very definitive statement. But how could it be ‘totally unexpected’ if Boston College’s position is that it always felt the archive might not withstand a court order? Boston College was ‘totally’ surprised because the PSNI action flew ‘totally’ in the face of its own legal counsel.

O’Dowd further argues that we are now ‘defending the indefensible.’ How is protecting the interviewees who took part in this project indefensible? Is he suggesting that we should have abandoned them?

Finally, Niall O’Dowd repeats a hoary old canard when he states that the interviewees were all opponents of Gerry Adams. How on earth would he know? Does he know who we interviewed? Of course not. The project was designed to increase knowledge of republican history and interviewees were chosen for their knowledge not their biases.  Ultimately, if the archive survives and is eventually made available the public will judge for itself the academic integrity of the project.