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:
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.
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.
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.
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.