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.

3 responses to “Harvey Silverglate Gets To The Core Of Boston College Subpoena Scandal

  1. What is Mr Cameron afraid of that he got caught with his hand in the “proverbial” cookie jar in the Brendan Lillis matter.

    “Upholding and promoting human rights is not something governments and courts can do alone. It is something we need all our societies to be engaged with. And when controversial rulings overshadow the good and patient long-term work that has been done, that not only fails to do justice to the work of the court, it has a corrosive effect on people’s support for human rights.”

    What controversial rulings overshadowed the good and patient long-term work that has been done by the British government? I would certainly like to know how you can even make that claim in all seriousness. What specific examples demonstrate your purported claims that you enforced the human rights of anyone other than then blatant cover-in the Finucane matter, the UVF murder of the 6 men in a pub in County Down, the RUC Special Forces massacre of the Miami Showband, the inability to put forth any effort whatsoever regarding the death of Jean McConville for over 40 years, the complete lack of any truth in the Widgery Tribunal Report regarding Bloody Sunday and the fact that unarmed innocent people were forced into a corner and shot right in the the back, the death of Giuseppe Conlan in jail for something he was not even remotely involved with, the John Brady murdered in the custody of the “New police in NI” aka PSNI, Joe O’Connor murdered in front of his mother’s home and Paul Quinn murdered by British agents. What about the Diplock Trials that continue to this day, despite findings in March of 1972 in The Minority Report by Lord Gardiner found “no evidence of this (jury intimidation) or of perversities in juries”. What about the continued revocation of the licenses of Republicans in violation of the GFA, the continued outright harassment of Republicans/Catholics daily and the debasement of the POWS held at Maghaberry Gaol.

    This is what I envision taking place. Yes, those damn taigs are at it again, bring out those rubber bullets, we’ll show them. Hey, why not aggravate them into “riot mode”, let’s allow the Orange Marches to retain their original route, so we can bait them into a frenzy and justify the use of excessive force. Ahh! the good old days.Need I go on? No, my point has been made.

    The only accurate and fair statement that you have made is “it has a corrosive effect on people’s support for human rights.” Having actively participated in the Human Rights Campaign for Brendan Lillis and others, we were met with ignorance, outright lies and false statements and the same non-responsive answers. But alas, Mr Ford got “caught with his pants down” and was found to have mislead the EU Commissioner, ultimately resulting in Mr Brendan Lillis’ being set free. Oh, yes Britain, I would proffer the same argument, as now we are on to you. I am sure we have only scratched the surface of the abuses you have committed in violation of all applicable laws and covenants. Your only option now is to diffuse the issue. But at least that is more than you afforded the innocent. you brutally cornered and murdered on Bloody Sunday.

  2. “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.” ”

    Can this claim really have been made with a straight face? Surely Brendan Hughes publicly ‘admitted his affiliation’ with the IRA when he chose to lead the first hunger strike in 1980? Or if not then, when he appeared in every episode of Peter Taylor’s ‘Provos’ series discussing extensively his time in the IRA? I can’t remember off-hand if he said the words ‘I was in the IRA’ but he didn’t need to, it was crystal clear from everything that he said.

    Is the judge really suggesting that when ‘Voices from the Grave’ hit the shelves, people up and down the land were reeling with the news that Brendan Hughes had once been a member of the IRA? “Bloody hell,” they said, “I never thought the Dark was that sort of fella. Seemed like an SDLP man to me.”

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