Tuesday, December 27, 2011

Boston College: Time for Resignations

Boston College has done something disgraceful, and everyone involved should lose their jobs. I'm willing to be talked out of that position, but the evidence that follows sets a high bar for that possibility.

Now. This post will be long and difficult to read, with a large set of embedded documents (that you can enlarge to full screen, if you have trouble reading them). But when you make it to the end, you'll clearly see two things:

1.) BC has shamed itself as an institution, and has unnecessarily broken a set of extraordinarily serious promises, and

2.) You don't have to take my word for it, because the evidence speaks clearly, and the documentary evidence appears right here on the page.

Some background: Boston College sponsored the Belfast Project, an effort to secure interviews with former members of paramilitary organizations on both sides of the Troubles in Northern Ireland. Because such a project would require people to speak frankly about their participation in acts of unlawful violence, the project's researchers promised participants that their interviews would be embargoed until their deaths. Each tape and transcript of an interview with a former member of the Provisional IRA, for example, or the Ulster Volunteer Force, would be closely held in BC's Burns Library, securely locked away from historians and journalists until the contents of the material could no longer cause legal harm or political retribution to the interviewee.

BC and its researchers took the sensitivity of their work very seriously, shielding their work from disclosure just as they shielded the content of their interviews. For example, in a discussion over Skype on Dec. 27, Irish journalist and Belfast Project director Ed Moloney told me that he discussed interviews with his researchers only by encrypted email, using PGP to protect their messages. I've confirmed that claim with other participants.

At BC, the academics responsible for commissioning and managing the project shared that commitment to secrecy. For example, in a March 23, 2010 email message sent at 2:50 PM, BC Professor Thomas Hachey, the executive director of the university's Center for Irish Programs, reassured Belfast Project researcher Anthony McIntyre that "B.C. is firmly and unconditionally committed to respecting the letter and intent of what is a contractual agreement never to release any of the material to anyone unless given permission in writing (notorized) beforehand by the participant, or until the demise of a participant." (McIntyre recently forwarded the message to me.)

Then, in March of this year, the British government asked the U.S. Department of Justice to subpoena some of the embargoed Belfast Project materials, pursuant to an investigation of the 1972 murder of Jean McConville by the Provisional IRA.

For more background, see my posts at Cliopatria, starting with this one, or see this at the Chronicle of Higher Education.

Now, this is very important: Even if you believe that BC's promise could not reasonably protect interviewees from a government subpoena, what follows will show you that BC has behaved with unconscionable neglect and recklessness. You can believe that BC has an obligation to hand over subpoenaed material and still see that the university has failed in its responsibility to protect its Belfast Project interviewees.

I'm going to start backwards, to immediately show you the posture that BC has adopted in the face of this government effort to secure embargoed and confidential academic research materials. Immediately below is an extraordinary Dec. 27 letter, hand-delivered to the federal district court in Boston, from Jeffery Swope, BC's outside counsel for the Belfast Project subpoenas. Look at the paragraph on pg. 2 that begins, "The Clerk's notes of the Court's order..."

Dec 27 in Cam Receipt

The DOJ is pursuing two sets of subpoenas: First, they have successfully subpoenaed interviews with two specific Belfast Project interviewees, Dolours Price and Brendan Hughes. Second, they have obtained subpoenas for “any and all interviews containing information about the abduction and death of Mrs. Jean McConville.” (I'll show the evidence for that subpoena language in a moment.)

The Provisional IRA has admitted to that abduction and killing -- and told the police, in 2003, where to find McConville's body -- and a subpoena for information about McConville's death is necessarily a subpoena for interviews with members of that organization. The court has acknowledged as much, as BC's lawyer writes in this letter. There is no reason for a subpoena of material relating to McConville's murder to cause BC to produce interview material with members of loyalist paramilitaries, the enemies of the organization that killed McConville.

But here's this remarkable occurrence in which the government "asked" BC to review the loyalist interviews in its confidential collection and see what it should turn over, and "Judge Young stated that the Court was eager to have, but not ordering, Boston College to do so."

The government has "asked," the court is "not ordering"...and "Boston College is working with the United States Attorney's Office to obtain a list of search terms for Boston College to use in searching the pdfs of the non-IRA transcripts for information that relates to the abduction or death of Mrs. McConville, which transcripts, if any, will then be submitted to the court for review in camera" (emphasis added).

Of course, "non-IRA" interviews are not likely to contain information about an IRA-conducted killing. But whatever the likelihood, BC is offering to turn over material that has not been subpoenaed, that the DOJ is only requesting and that the court is "not ordering" that they turn over.

I'm repeating myself, but here's Thomas Hachey, executive director of BC's Center for Irish Programs, on March 23, 2010: "B.C. is firmly and unconditionally committed to respecting the letter and intent of what is a contractual agreement never to release any of the material to anyone unless given permission in writing (notorized) beforehand by the participant, or until the demise of a participant."

How do you square that statement with BC's offer to review and possibly hand over material that the court has "not ordered" them to provide?

But this is just a hint about BC's attitude. Look farther, and it gets so much worse.

The first subpoenas BC received, the ones for interviews with two specific people, were served in early May. The second set of subpoenas, the broader set seeking “any and all interviews containing information about the abduction and death of Mrs. Jean McConville," were served on BC in early August. The court order giving permission for the subpoenas (formally issued by a DOJ lawyer acting as a "commissioner" under the terms of an international treaty) is sealed, but the response from BC's lawyer is available on the federal court system's document website, and is embedded immediately below.

Motion to Quash New Subpoenas 8-17-11

See pg. 2: "A second set of subpoenas, each dated August 3, 2011, were served and by agreement accepted by counsel for Boston College on August 4, 2011." Remember that date.

Both times it received subpoenas for Belfast Project materials, BC filed motions to quash. On December 16, the court rejected those motions and ordered BC to produce the subpoenaed material for in camera review. (More about that review later.) Here's the court's memorandum and order, with the order appearing on pg. 48:

Bc Decision

The relevant portion: "This Court ORDERS Boston College to produce copies of all materials responsive to the commissioner’s subpoenae to this Court for in camera review by noon on December 21, 2011, thus allowing time for Boston College to request a stay from the Court of Appeals."

Below, BC's response.

Receipt for in Camera Filing

See especially Items # 5 and 6, which describe affidavits filed under seal regarding BC's knowledge of the Belfast Project material in its collection. Robert K. O'Neill is the Burns Librarian at BC, the person who has held these materials since their delivery to the university.

The good news is that we can tell what information these affidavits contain, even though they're filed under seal. First, and I apologize for being tedious, go back up to the first document embedded in this post, "Dec 27 in Cam receipt." Look at the longest full paragraph on pg. 2 for this statement from BC's lawyer, describing the university's "responsibility to identify specific interviews that it has determined to be germane" to the broad second set of subpoenas: "As I stated in the conference held on December 20, 2011, and Dr. O'Neill stated in his affidavit dated December 21, 2011, Boston College has not made such a determination as to the individuals formerly associated with the IRA."

Nor did Anthony McIntyre, who conducted the IRA interviews, help BC to determine which interviews were germane to the subpoena. BC's outside lawyer, Jeffrey Swope, first asked McIntyre to help BC to identify which interviews were germane to the August 4 subpoenas in an email sent to McIntyre on the evening of December 20. I know this because McIntyre forwarded Swope's email to me. Here's how Swope's December 20 email request for help ends: "Judge Young directed that Boston College file an affidavit in response to his order by tomorrow, December 21, at noon EST. I would be grateful to hear from you as soon as you can contact me."

So BC got a set of subpoenas, for material in its possession, on August 4. Ordered on December 16 to turn over the materials relevant to the subpoena, BC tried on December 20 to make a first effort to find out what materials in its collection were germane to the August 4 subpoena, with a hearing scheduled on the matter before a federal judge the very next day.

August 4 to December 20: 139 days, including December 20.

Here comes the big finish. Not having figured out what material in its possession was germane to the second set of subpoenas, BC lost the ability to hand over only those portions of the IRA interviews. From the court clerk's notes of a December 22 hearing:

Filed & Entered: 12/22/2011
Hearing (Other)
Docket Text: ELECTRONIC Clerk's Notes for proceedings held before Judge William G. Young: Hearing held on 12/22/2011. After addressing counsel and hearing from counsel, the Court Orders the following: Boston College is to deliver all remaining 192 transcripts of IRA interviewees to the Court for in camera review by Noon, Tuesday, December 27, 2011. Copies are acceptable to the Court. The Court reminded Boston College of its responsibility to identify specific interviews that the Burns Library and Boston College have determined to be germane, per the hearing on Dec. 20, 2011 and accompanying clerk's notes.

Go back up to the first embedded document in this post, "Dec 27 in Cam receipt," to see BC's statement that it has now handed over its entire collection of interviews, in full, with IRA members.

So: Boston College now offers to review, and possibly turn over, material that the DOJ has "asked" for and that the court has "not ordered" that it produce, while the university has also turned over complete transcripts and tapes of interviews that the DOJ did not subpoena in full, because they didn't bother to figure out -- in 139 days -- what material was germane to the subpoena.

Thomas Hachey, executive director of BC's Center for Irish Programs, March 23, 2010: "B.C. is firmly and unconditionally committed to respecting the letter and intent of what is a contractual agreement never to release any of the material to anyone unless given permission in writing (notorized) beforehand by the participant, or until the demise of a participant."


I have invited BC to respond. If they do, I'll post their response in full. I did ask BC spokesman Jack Dunn, in a Dec. 19 email message, what course BC was planning to take as it decided what material to hand over to the court. Dunn replied, "At this stage I cannot answer your question. We intend to cooperate with the Court, but no specific process has yet to be determined." You can see for yourself how well that turned out.

Meanwhile, a final note about the significance of the judge's in camera review of these materials. A few days ago, BC gave the court the transcripts and tapes of the interviews in its collection with Dolours Price. The judge has already completed his in camera review, and ordered on December 27 that the DOJ be given Price's full interviews "on or before" December 30:

Young Dec 27 Order

By the standard the court has so far adopted, anything BC turns over to the court will end up at the U.S. Attorney's Office, and from there to the British government. Everything anyone said to BC: right to the British government.


  1. Chris,

    a very well written piece that captures exactly what has happened here. Thanks for taking an interest.

  2. As far as I can see, what happened here is that BC held as long as it could to the position that it wasn't going to turn over anything. When that position proved untenable, it decided that it was at least going to be even-handed about what material it yielded. BC is a Catholic institution in Boston -- no way is it going to allow itself to be seen as favoring loyalist paramilitaries over the IRA.

    What you've demonstrated here, I think, is that BC's decision was not entirely shaped by its lawyers. The outstanding question is whether the rest was based on PR/political considerations alone, or whether you are about to find yourself in a hair-splitting debate on moral issues with a bunch of very smart Jesuits.

  3. Mr. Punch,

    A fair suggestion about the decision to put loyalist interviews on the table, but I don't think it addresses the failure to parse the IRA interviews and develop the ability to limit what they turned over from those interviews.

    My sense is that the very smart Jesuits aren't going to engage in debate at all, but we'll see. I do agree that a moral debate with "a bunch of very smart Jesuits" is not a thing to be taken lightly.

  4. mr punch, you don't know what you are talking about. BC only hired a lawyer and formally decided to oppose the subpoenas after i alerted the new york times. until then, the signs were that the subpoenas would be kept secret, even by BC. the order had gone out at BC: no-one was to be told about them, not even myself, the former director of the project nor the researchers who had done the interviews. i found out about them by chance and i then tried to contact BC's lawyers to find out what they intended to do. when they twice refused to talk to me/declined to come to the phone, i concluded all was not well in the kingdom of denmark. after all resisting the subpoenas should have been an automatic decision and BC should have been eager to set our minds at rest. but we were being avoided like the plague. i was also told that there was a lobby at BC arguing to hand the interviews over, that "these were only a bunch of terrorists, after all". it was at this point, as my sense of foreboding and concern grew, that i decided to contact the NYT. only after the newspaper published the story did BC decide to oppose the subpoenas, a position they have now abandoned. in other words mr punch, your premise that BC ever really was committed to defending its oral history archive is at best unproven, at worst questionable.
    ed moloney
    former research director, belfast project, boston college.

  5. I have been following this case given its unique nature I was surprised at the lack of interest BC has showed in defending “their” agreement with the interviewees.
    I am not surprised at how quick they want to disown the matter.
    I would assume BC is concerned about its reputation and more so concerned with funding.
    What is particularly disturbing is the breech of ethics on their part as they clearly betrayed those individuals involved and have left them high and dry.
    Not that it would be of any concern for BC, as they are safe and far away in their treacherous ivory tower lying under their blanket of academic interest.

    I doubt they would care about the mental anguish and fears of all involved considering they do not have the luxury afforded to BC; instead, they possibly face the courts of Loyalist and Republican Para-military justice.

    I doubt BC or the British government would be able to ensure the rights and safety of these people. It seems a step backwards and does nothing but promote more distrust and division and definitely could make the “tentative” peace-process precarious.

  6. It is simply not sustainable to claim that BC held onto its archive until it became untenable. It was tenable to fight the court order to hand over. The judge invited BC to appeal. It declined. BC masked its retreat from its own commitment to pull out all the stops to defend the archive with a weak legal strategy which would enable it to give up the archive at the end of Round 1 and hide behind a court order.

  7. From the Irish Times: "Boston College declined Judge Young’s offer to seek a stay and appeal his decision, saying it would turn the records over to him by tomorrow."

    BC fought a half-assed effort, then gave up, then began to give up records that hadn't even been subpoenaed. I don't understand why their choices aren't drawing wider attention.

  8. Chris

    Most people likley do not have any problem with the handing over of material that might identify the killers of Jean McConville. In principle neither do I.

    The question US Courts' and Academic Institutions need consider is what sort of can of worms might they be opening; for instance, would Universities now be obliged to hand over any research material on substance abuse to drug enforcment agencies? Or Anthropological studies of inner city gangs and their hierarchy structures? Can the Vietnameese or other People's now ask for access to the identities of the researchers and all research papers on the various agents, toxins and contaminants used directly against civilians or indirectly in the form of defoliants? Or howabout the designers who came up with the latest electronic gadget that still could not ensure some missile hit the correct target?

    Why stop at academic institutions? I mean, shouldn't private weapons research and development ventures be prone to the same scrutiny and access if thier products kill innocent civilians or pollute large regions and thus destroying local peoples of a livilihood or even their good health?

    For the most part many of these scenerios will never arise simply because the US is unlikely to rape and plunder the UK's resources and those Nations that are will not have any legal pact with the US like the UK have.

  9. Tiarna,

    in principle I have every objection to anything from the archive being handed over for the purposes of prosecution.

    Apart from that I think you raise very valid points.


    from the Boston Globe

    'Boston College said it is disappointed by Judge Young’s ruling, arguing it “could have a chilling effect because people could be reluctant to participate in oral history projects moving forward,’’ said spokesman Jack Dunn.

    But he said the school would not appeal the decision.'

    What absolute waffle. If BC were disappointed it would appeal in the very interests of making a stand in defence of protecting oral history and academic freedoms. What other way did he think Judge Young was likely to go? This is on a par with his earlier statement that BC welcomes Judge Young's decision to hold an in camera review when BC knew full well the review was to enable a handover of the material. BC is hiding behind legalisms in the hope that it will help obfuscate what it has really done here.

    Also from the Globe:

    'Assistant United States Attorney John McNeil, who is arguing the case for the government, said, “We appreciate Boston College’s thoughtful decision in this case by deciding not to appeal.’’ '

    Should any academic institution not be embarrassed by such rubbing of its own subservience in its face? May as well have said 'We thank you for your thoughtful act of capitulation and the abandonment of your Belfast project staff and the people whose interviews you failed to protect.'

    I think the statement by McNeil demonstrates the cosy relationship between BC and the Justice Dept. BC's legal strategy was nothing other than a sham fight.

  10. AM

    In a conflict situation the act of Combatants 'disappearing' civilians is internationally recognised as a war crime and an increasing volume of case law supports that.

    In the context of Northern Ireland no suspect is guaranteed the right to a fair trial, not least because 'exceptions to the right to a fair trial can be made' but also because those who control the legal system are themselves involved in criminal conduct (for example see http://www.christywalsh.com/theprosecution.html.) The NI Assembly and UK Parliment are prepared toeither sanction or tolerate the abuse of due process and any criminal conduct of their Agencies. So in principle I equally do not believe that anyone should be subject to a political show trial in Northern Ireland.

    Apart from the many reasons why the US Court should defend and protect academic privilege US Courts are not the CIA and so cannot simply hand over evidence or suspects without giving due regard to what injustice or abuse that might involve. There are several cases currently in NI that involve irregular or abuse of due process and they derive from long and consistent practice of such abuse.

  11. Tiarna
    this case is full of tragic and disgraceful ironies - the most glaring one is that the court which ordered these tapes handed over is run by a government which has literally made an industry out of disappearing people, often in far off places in Iraq or Afghanistan, Pakistan or wherever where little can be done to bring anyone to justice much less track and recover the remains of the victims;
    the other is that at the same time that the british government is pushing to claim these tapes it is intent on covering up its own war crimes. there are many examples that jump to mind but one recent case stands out. i refer to the murder of pat finucane, a defense lawyer whose gunning down in belfast over twenty years ago was connived at by the police and various british intelligence agencies. a few weeks ago british PM david cameron announced that there would be no inquiry into that killing despite solemn promises made by his predecessor that there would be. the sighs of relief and celebratory clinking of glasses in british intelligence offices and the homes of former RUC Special Branch men was almost audible. governments killing lawyers is not only reminiscent of south american dictatorships it also qualifies as a war crime. but no justice for the finucane family.
    this case is fundamentally about double standards, one for governments and a different standard for everyone else.

  12. Ed

    All true.

    Sometimes all we have to hope for is for one judge not to be politically influenced on either side or the Atlantic. I am not as yet convinced that Judge Young is against you (even though you might feel otherwise because he has done you no favour by not allowing you to put your own case).

    Had BC made an effort to present a case Judge Young may have ruled differently; he is not going to do the work that BC should have done to date. The Judge could not have reasonably rejected BC's 'in camera' offer; where BC are showing themselves to be a greater threat to your interests than the Judge is posing.

    The Judge left the door open for BC to return with fresh argument and it is not the fault of the Court if BC are not inclined to defend against the subpeanas. At this stage it looks unlikely that BC will ever represent your interests of their own volition. Perhaps before the next round You might successfully persuade the court that you have an interest in the outcome and BC is not representing that interest as Judge Young had burdened it with doing.

  13. Tiarna,

    I think the issue of what type of activity is recorded by a research institution is secondary to the fact that it should not be violated by governments or policing agencies

  14. Oran,
    if you didn't try to make money then it wouldn't have happened.
    silly silly money making episode now your turning on everyone.

  15. AM

    To a degree the Microsoft Case established that because almost all applications for disclosure will probably be based on some emotive or sensitive issue or other and the Court was not swayed by that.

    The BC Case it could be said is an extension of Cusmano v Microsoft where it specifically relates to the time period when data is defined as 'research' and when it should be 'published' and can the State compell premature 'publication' of unfinished 'research' becaused it has been lobbied by a third party to force the issue?

    The US Court must give due consideration to whether or not finding against retention of sensitive academic research would be contrary to US legal principles. This is an area that every research institute should be concerned about because if the Court sets dangerous precedent almost anything could be up fro grabs. For instance what if a 3rd party wants to get its hands on sensitive cancer research that is still defined as 'data' and not 'publication' ready because it involves decades to compile? Would it be right for Private Enterprise or the UK to simply lobby to have at it? There are numerous instances relating to all sort of emotive or sensitive research areas that academic institution's have aright to retain until publication and they hold a duty to protect that.

    BC is failing misreably to assert itself in this case and that is its choice but so too are other Institutions by sitting passively on the sidelines when their research could be next. BC is also showing itself to be a fraud without integrity; it elicited the assistance of two people, and contribution from many, on false guarantees and assurances that it would act honourably in their best interests.

  16. My wife (who deals with copyright and public domain-related film rights), asks this: were the researchers Anthony & Ed hired for pay by BC as contractors, to deliver a "work for hire" that would be delivered to BC at the conclusion of the project?

    If so, she has a hunch, BC could claim they "own" the rights to the project on completion. I'm not sure if this is germane, but as I have been unable to verify this information in the coverage I've seen, I'm asking here about fine print--or its lack.

    Personally, thanks to Chris from this fellow UCLA Ph.D. (English) for your presentation, and ádh mór oraibh to Ed & Anthony in standing up for academic and archival freedom.

  17. The researchers were hired on contract; regarding some of the implications of that choice, see this post. Then, "Each interviewee was given a form to donate his or her interview materials to the Burns Library at Boston College on the express condition that the materials would not be disclosed, absent the interviewee’s permission, until after his or her death." (See pg. 6 of this brief, a portion of which describes the origins of the project.)

    What that means about ownership is an interesting question, and one that I suspect will become a real problem. BC has now handed over to the District Court every interview in its possession with members of republican paramilitaries. They haven't handed over interviews with members of loyalist paramilitaries, but if you're one of those loyalist interviewees, you can surely see the threat this collection presents to your personal safety.

    I haven't been able to identify any of those loyalist interviewees, so I'm just guessing, but I would be very surprised if some of them don't try to fish their interviews back out of the Burns Library. Some may have done so already -- I can't FOIA a private university, so I don't know who has contacted them or what requests have been made. My bet is that, if a Belfast Project interviewee asks for the return of his or her interview, BC will say no and claim ownership. I have no idea what happens next.

    I don't know who "owns" the interviews, and I don't think anyone else does, either. I'm confident that BC believes it owns them, but we'll see.

    Also, as I understand it, the project was funded, largely or entirely, with private donations, not with BC's institutional funding. And Ed Moloney sought at least some of that funding. So if outsiders, working as contractors, used private funding to get interviews that were signed over to the custodianship of the university on the condition that they be kept confidential...

    Some very muddled questions, here, and a long road to clear answers.

    I'll email BC's press office and see if they'll answer the question, though.

  18. Fionnchú

    That is a good point because libraries and academic institutions often do not own material in their possession, ie, they often hold antique manuscripts or letters from famous people in history on 'loan' for instance. And there can be long running legal battles over ownership based on who contributed what, etc, etc...