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.

15 responses to “A Reply to Ted Folkman

  1. Ouch! That’s what former president George W. Bush called a shellacking. All I can say is that far from defending Boston College, I’ve criticized the College on various of my posts, and that far from deferring to “local power and wealth,” I’ve suggested that Boston College did not have a really strong basis for challenging the subpoenas. If anything, I would expect to be accused of favoring the government, not BC.

    I don’t have a dog in the underlying fight, I have no contact at all with BC or its administration, or with the government, and I really don’t know what Messrs. McIntyre and Maloney are so worked up about. I publish a blog, Letters Blogatory, that focuses on international judicial assistance. Most of the cases I write about have no political oomph at all. This one does, and so I seem to have been made a combatant by Messrs. McIntyre and Maloney, despite my best efforts.

    It seems to me that what has drawn their ire is my suggestion that BC is not solely at fault for what happened, but that they (who, after all, ran the Belfast Project) and the interviewees themselves also bear some responsibility. I call this one as I see it. As I’ve explained in various posts, and in my interview with Fran McNulty of RTE Radio 1, I think the interviewees would have been well-advised to get their own legal advice rather than relying on assurances from BC, and I think that if BC is at fault for failing to give a warning to the participants, then to some extent the leaders of the Belfast Project are similarly at fault. I don’t think anyone involved with the project acted in bad faith, but in hindsight, it seems clear that there were enough mistakes to go around.

    All I can do is to encourage readers here to read what I have written about the legal merits of the various parties’ contentions (I have a link to my complete coverage at the Letters Blogatory homepage) and see whether the views I’ve taken have legal merit or not. I’ve tried to say, time and again, that I am not taking a position on the political questions that Messrs. Maloney and McIntyre have raised about whether the UK government should be seeking this information in the first place or whether the US government should be helping the UK authorities in their efforts. They may well be right about the politics of all of this, or they may be wrong. That question is above my pay grade, so to speak.

    I should add that I may be right about the likely outcome of the case or I may be wrong. I’ve been wrong before and I’ll be wrong again. I do think that this post, which more or less calls me an un-American lackey of the bourgeoisie and flunky of the ruling class, is an over-the-top ad hominem attack that I don’t think Messrs. McIntyre and Moloney would have been moved to make if they felt more confident that their legal strategy would prove successful.

    • the legal strategy which i believe you said recently, as in last saturday, had been vindicated at least partially by judge young’s recent ruling on surrendering other interviews was that of boston college. goodness knows how you could judge a strategy designed to avoid the outcome which has actually come about as a success is mindboggling to say the least. it therefore follows that our critique of their legal strategy must have been vindicated because we could never see any sense in it all. but you did. so who got it wrong and who got it right? as to our legal strategy i am not a lawyer, unlike you, so i cannot judge it on lawyerly grounds but i can say on a human level it makes an awful lot of sense and on a political level it makes even more sense. it is rooted in the real world of cause and effect. and more than that i know our legal representatives well enough to know that they are fit for this fight no matter how long it takes. could i say the same about BC? if you know anything about me ted you will now that i went through this experience once before and came out of it intact and successful. our strategy then was partially legal but it was also political and in the end it was the politics that made the difference. the problem with corporate lawyers is that they spend too much time in stuffy boardrooms talking to and listening to themselves and not enough outside dealing with the real world. one of things that matters in the outside world is that you stand up for what you believe in and fight for your principles. we believe we have done that. you criticise us for that yet heap praise on others who fled the field at the first reverse. i know which side i prefer to be on.

      • My point was that BC has indicated a willingness to turn over interviews relating to the McConville kidnapping and murder and to establish that there must at least be some balancing test considered by the judge, and if that’s their position, then they’ve “succeeded” by limiting the disclosures to those interviews that bear on the McConville case. I don’t mean to suggest that BC’s goals are the proper goals, but if BC’s goal is as I’ve described, then it has done what it set out to do.

        I’m not criticizing you for fighting for your principles and what you believe in. I’m just opining that the legal arguments about the MLAT you’ve made are likely not meritorious. Maybe I’m right and maybe I’m wrong. But I’ll say it again–I’m not commenting on the politics of the situation. And I think you have every right to do what you’re doing, which is to put political pressure on the Department of Justice. Indeed, one of my themes has been that this is really a political issue, not a legal issue.

    • Just one correction of your reply to my post Ted. You said that it was George W Bush who referred to a shellacking. In fact it was Barack Obama, after the mid-term Congressional elections which, in the form of the Tea Party, turned the asylum over to the control of the lunatics. You can read more here.

      • You are right! George W. Bush’s word, after the 2006 mid-term elections, was “thumping”, not “shellacking.” I got my midterm reversals confused!

  2. This response to Ted Folkman is excellent, Regarding the current brouhaha about the release of the tapes, Boston College has failed to hold up its side of the agreement and is clearly is at fault. Beyond this,the real reason for the request of the tapes by the Royal Ulster Constabulary, RUC, the Police Service of Northern Ireland, PPSNI and now the Historical Enquries Team, HET, is to bring down Sinn Fein President Gerry Adams-who has been implicated in ordering the murder of IRA informer Jean McConville. Adams is and always has been the target. And unfortunately, Attorney General Eric Holder is cooperating with the Brits and the Northern Ireland authorities in this effort.With more than 3,000 unsolved murders in Northern Ireland during the Troubles, why the focus on Jean McConville ? She was not an innocent victim but rather was involved in espionage during an ongoing war.

  3. Anthony McIntyre

    Ted,

    while thinking you called it wrong, if I was irked by anything it was your suggestion that it was okay for researchers to go to jail in order to protect sources but not so for university trustees. I find this a total capitulation to the power of the institution. Surely the higher up the chain of command we go the greater the responsibility we assume. Yet you seem to want to reverse the order of things,

  4. I am writing this based on my opinion. I am not familiar with Attorney Folkman, his background nor his experience. I am not privy to any instructions given to him by BC nor am I aware of all of the legalities in this case, since a lot of the pleadings are not public. I am basing my opinion on what pleadings I have read, knowledge of the applicable EU Human Rights Treaties, Charters and Laws, knowledge of the human rights violations that Britain continues to commit to this day, in violation of applicable laws, especially with respect to the POWS at Maghaberry Prison, validated by the EU Commission in the Brendan Lillis matter, the tortured history of Ireland, the complete censorship(by the US and Britain) and of the illegal activities perpetrated by Britain currently. Most importantly, I base my opinion on my 25 years experience as a litigator in both federal and state courts in NJ, PA and CA. Most of my litigation involved equitable arguments, which is the case here.

    Having read the scant initial pleadings in this matter, I noticed the complete lack of cited authority, law, facts and substance. If I had filed something like that, any Judge would have kicked it back or ruled against me. This is when I knew something was amiss. BC’s vocal claims that they would burn the tapes before turning them over dissipated quickly. I would never have abandoned my client, unless BC told him to, and engage in placing blame on co-defendants Maloney and McIntyre. As an attorney and advocate, you don’t tell yourself you can’t win, you proffer every equitable argument there is and hope one sticks. I personally think it was poor judgment to “give up”, blame the others and throw them into the proverbial “lost cause”. The excuse that Dolours Price was tricked into giving an interview, in violation of the Agreement, while under psychiatric care, could be argued it was improper. Yes, it seemed apparent that the Defendants were fighting prejudice by the Court and unlikely to prevail, but you need to make your record for appeal. Accusing Maloney and McIntyre of not knowing the law, publishing a book and making a documentary, in addition to the other “nonsensical defenses” is ruthless. This defense should have been coordinated with all defendants.0n the same page. BC knows they are now exposed to liability and chose to start to form a basis for a “defense” in these proceedings, for a future lawsuit. This is unconscionable to say the least. Shame on you BC and it’s counsel. Remember karma bites back hard.

    I read the Judge’s Memorandum for Stay. It was the most tedious circular reading I have done in a long time. The UK-MLAT is ultimately determined to be too confusing so the Judge used 28 USC sec 1782 as the authority. I believe there were quite a few grounds for appeal.

    In closing, the US should remove itself from this action, the tapes should be destroyed, and we all move on. I am apathetic to Mrs. McConville’s family and their desire to find out what happened, but at what cost?. It has been 30+ years and eventually they may find out or they may not. If the tapes are released, some people may be put in jail and what does this accomplish-nothing. What at risk is the tenuousness of the peace process, escalating violence, and continued mistreatment of Republicans/Catholics, without interference by anyone. After all is said and done, I would advise Maloney and McIntyre to seriously consider their legal options.

    I I

    • Just to be clear, I have received no “instructions” from BC, whatever that means, nor have I communicated with anyone at BC, nor have my views been influenced by the fact that BC is involved in this case.

  5. Pingback: Boston College: A glimpse of the archive… « Slugger O'Toole

  6. Ted – You say: ‘That question is above my pay grade, so to speak’. Have you been studying Pontius Pilate?

  7. Goodness gracious! Let me say it once again: I mean to comment on the legal issues in the case. I don’t claim to know the answer to the question whether the UK ought to be doing what it’s doing.

  8. Why is Attorney General Eric Holder acquiescing to the Brits-maybe Secretary of State Hilary Clinton will dissuade the Northern Ireland authorities from pursuing a disastrous course for the sake of trying to bring down Sinn Fein President Gerry Adams -at the risk of disrupting the peace in Northern Ireland.

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s