On January 19th, The Irish Times published an oped piece that was supposed to have been a response to Chris Bray’s swingeing critique of Boston College’s cowardice over the PSNI/US Department of Justice subpoenas seeking the surrender of interviews from the Belfast Project oral history archive.
Penned by Prof. Tom Hachey and Dr Bob O’Neill, the two key people in the Belfast Project on the BC side, the article in fact evaded Bray’s criticism and instead homed in former project director Ed Moloney and IRA researcher Anthony McIntyre. They set Moloney up for a contempt of court charge while putting McIntyre in the gun sights of enemies in Ireland by blaming him for the fact that the college had handed over the entire Republican archive for the court to review. You can read their poisonous piece here.
We asked the Irish Times for the right to reply under a joint byline but because the Hachey-O’Neill article was technically their reply to Chris Bray, we were told the debate had ended. So instead we have decided to reproduce that article on our respective blogs. Here it is:
It is an astounding abdication of responsibility that the trustees of Boston College, through their employees, Robert K. O’Neill, the Burns Librarian, and Professor Thomas E. Hachey should seek to lay culpability at the door of their researcher Anthony McIntyre for the Boston College tapes debacle while wrongfully accusing Ed Moloney of contempt of court.
At the same time they ignore the egregious hypocrisy of the PSNI, which has chosen not to pursue former RUC officers who allowed double agents in the IRA and UVF to murder at will and whose actions both threaten the lives of BC’s researchers and the well-being of the peace process in Northern Ireland. Nor do they take the US Attorney General to task for ignoring his obligation under international treaties not to assist in the pursuit of offenses preceding the Good Friday Agreement.
Messrs Hachey and O’Neill’s disgraceful disowning of responsibility is only matched by the naivety of the college’s legal strategy which collapsed ignominiously just a day after their article appeared in this newspaper. They wrote last Thursday that Boston College had declined to appeal Judge Young’s decision ordering the release of the Dolours Price interviews, in the “hope” that the rest of the archived material they had relinquished to him for review would not have to be released to the PSNI.
Yet by the following evening Judge Young announced that no less than seven other interviews would, if the stay and appeal secured by ourselves failed, be handed over to the PSNI. What a triumph! What a tribute to Boston College’s cunning legal master plan! Remember also that the same legal strategy involved an offer by Boston College to hand over the UVF archive to the court even though this information is not responsive to the subpoenas, and no-one has ever associated that group with the disappearance of Jean McConville.
And so Boston College, to its eternal shame, declined the opportunity to appeal and left it to their researchers to fight their battles for them, with none of the resources or opportunities that Boston College has at its disposal. Now that its legal strategy has collapsed might Boston College now attempt to retrieve its name and appeal the latest order commanding the release of confidential materials?
The slur against Anthony McIntyre is nothing less than shameful. The facts are these: the first subpoena, in May 2011, had asked for Brendan Hughes and Dolours Price’s interviews; a second subpoena seeking other interviews that mentioned Jean McConville was served in August, 2011; five months later, on December 20, 2011, Judge Young ordered Boston College to review those other interviews and hand over the relevant ones.
Boston College’s response? The Court was informed that its Burns Librarian, Dr. O’Neill had not read all the interviews and could not help. Really? A library which has had custody of an important and sensitive archive since 2001 and in all that time had not made itself familiar with its contents!
At that point the judge suggested that Boston College instead approach Dr. McIntyre for assistance. He declined, but on grounds of principle, replying: “I cannot on ethical grounds engage in any activity that would lead me to assist in a process of morphing my research into evidence gathering.” How much better it would have been had Boston College asserted the same reasons.
The Boston College representatives also disingenuously allege that Ed Moloney suggested that Boston College “defy the court” and “pre-emptively burn the transcripts.”
Ed Moloney suggested no such thing, and never encouraged the college to risk contempt of court by proposing that archived interviews under subpoena be destroyed. Rather, the suggestion was that, after this case has concluded, the College must close down or destroy the archives if it is neither willing nor able to protect the participants from future invasions. The only items threatened with “burning” are the sources that Boston College promised to protect.
One could go on about Boston College’s lamentable legal strategy throughout this sorry affair. After the first subpoena was issued, Boston College was warned that a second one was possible and that they should make strenuous efforts to secure the archive. They ignored the advice, instead giving out assurances on the basis of advice from “practiced lawyers … (and) … people formally schooled in international law” that no further subpoena was likely.
When the second one arrived in August 2011, the college partly relied on the absurd suggestion that it did not know “whether the tapes and transcripts it holds are ‘easily searchable’ by any currently available computer-assisted or other means” such that the second subpoenas would impose an unreasonable burden on Boston College. That argument drew the deserved scorn of the US assistant Attorney who replied: “Such a response, from a chaired historian and the director of a distinguished college library, begs credulity. The task of searching this material would be fairly straightforward for a first year paralegal, much less a tenured historian and a library director.”
It is only due to the order suspending Judge Young’s decision that we secured on appeal to the First Circuit Court of Appeals that the Belfast Project interviews are not already in the hands of the PSNI. If this matter had been left to Boston College they would have been in Belfast long before this and their interviewees, to whom they gave the most solemn promises of confidentiality, would have been utterly betrayed. We, at least, will fight as long as we can to prevent that happening.
“We asked the Irish Times for the right to reply under a joint byline but because the Hachey-O’Neill article was technically their reply to Chris Bray, we were told the debate had ended.”
Because really, what debate could ever carry beyond a single claim and a single reply? This is very shrewd of the Irish Times, especially since nothing is at stake of any significance to Irish politics but the political future of Sinn Fein and the peace in Northern Ireland.
“Ed Moloney suggested no such thing, and never encouraged the college to risk contempt of court by proposing that archived interviews under subpoena be destroyed. Rather, the suggestion was that, after this case has concluded, the College must close down or destroy the archives if it is neither willing nor able to protect the participants from future invasions. The only items threatened with “burning” are the sources that Boston College promised to protect.”
It’s true that Mr. Moloney did not suggest that the interviews be “destroyed.” However, in an email posted on Scribd that seems to have been removed but that is partially summarized in Chris Bray’s post of January 5, Mr. Moloney does suggest steps to try to evade the anticipated subpoena. As Chris writes:
“So Moloney proposes that IRA interviews be moved to the Republic of Ireland, and placed in the hands of the researcher who conducted those interviews. Irish officials would be less obtuse than the DOJ about the politics of a British fishing expedition, and less malleable. And Anthony McIntyre, who would personally hold the interview material, “would happily go to jail” to protect it. (This is more than talk: McIntyre spent eighteen years in Long Kesh.) Moloney expresses a sense of urgency: ‘the important thing here is speed.'”
In addition, my recollection of the email (which I now cannot verify, as the email is no longer available) is that Mr. Moloney also proposed transferring ownership of the interviews to a party in Ireland, temporarily, and again for the purpose of avoiding the subpoena. Whether all this would be a contempt of court, obstruction of justice, or simply unobjectionable quick thinking, it seems clear that Mr. Moloney was suggesting that the College take steps to put the interviews beyond the reach of the government’s subpoena.
the allegation, theodore, was that i had suggested moving interviews responsive to the subpoenas. i did no such thing. i was referring to other non-subpoena’d (at that stage) interviews – it’s called foresight in the rest of the world and there’s nothing wrong or illegal about that. sorry if that disappoints.
You may be right–that’s why I wrote that your suggestion, if it had been carried out, might have been “contempt of court, obstruction of justice, or simply unobjectionable quick thinking.” But as I commented at Chris’s blog, “The destruction of documents in anticipation of a subpoena can also constitute obstruction of justice”, David Cylkowski & Ryan Thornton, Obstruction of Justice, 48 Am. Crim. L. Rev. 955, 967 n.64 (2011) and cases cited. My point in writing is not to figure out the law on this, but simply to correct what I think was a misimpression one could take from your post. You say, correctly, that you did not suggest destroying documents under subpoena. You also say that you proposed a plan for the interviews after the case was concluded. But you omit your proposal regarding the interviews after the case had begun but before the anticipated subpoena had issued.
i guess, theodore, that you just won’t be happy till you see me behind bars. is your life so limited that this is the sum of your ambition?
I wish you a long and happy life outside of prison! You know there is a difference between a critic and an enemy, right?
is that the same as the difference between bullshit and lies?