Monday, January 30, 2012
In response to the DOJ's declaration of endless hunger, BC's outside lawyer has offered a short and remarkable document (see below). Remember that BC gave the court every IRA interview in its Belfast Project collection for in camera review, after telling Young that no one at the university had any idea which archived materials were responsive to the government's subpoenas. But they did not give the court the other half of that collection, which is made up of interviews with members of loyalist paramilitaries that were active in Northern Ireland during the Troubles.
Arguing for reconsideration of Young's most recent ruling, the DOJ argued that the judge shouldn't finalize his order until the court was certain that no materials among the interviews with loyalists discussed the murder of Jean McConville by the IRA.
In his brief filed on Jan. 26, BC's lawyer offered this in response: "Finally, the Government’s Motion for Partial Reconsideration asks that the Court modify the statement that its Order is a 'final order,' in light of the fact that Boston College is reviewing, at the Government’s request, the 'non-IRA' interview materials to determine if any are responsive to the second subpoenas. Boston College has completed that review and has found no relevant materials, as explained in its Report filed under seal."
So a few weeks ago, pronouncing themselves unable to determine what was in their own archives, BC officials were forced to give the court every IRA interview in a protected collection. But now we discover that they can find out what's in the collection, and can use that knowledge to push back against government overreaching.
How and why did they complete a review, and determine what materials among the loyalist interviews were responsive to the subpoenas, a short time after telling the same court they were unable to conduct a review to determine what materials among the republican interviews were responsive to the same subpoenas?
The latest brief follows.
Bc Oppo to Reconsideration
Saturday, January 28, 2012
"Moreover, federal emergency assistance to students ($93,000,000 between 1935 and 1943) boosted enrollment and provided urgently needed revenue for numerous Catholic colleges and universities... By the early 1940s, various Catholic leaders favored federal aid to education, provided it did not entail federal control...
"After 1945, a growing number of Catholic leaders aggressively sought financial aid from the government, fully aware that the Catholic community alone could not finance the increasing social, educational, and religious expectations placed on Catholic schools...
"The availability of federal aid and the willingness of Catholic schools to accept it permitted Catholic higher education to expand dramatically and to move toward its goals of serving Catholics and increasing Catholic influence in American society... During 1967 alone, Catholic higher education received $125,000,000 in federal grants and contracts, not counting repayable loans."
-- William Patrick Leahy, Jesuits, Catholics, and Higher Education in Twentieth-Century America (PhD Dissertation, Stanford University, 1986), pp. 233-37.
Friday, January 27, 2012
Today, that video is gone. Go look.
RTÉ apparently figured out that they had been used as a vessel for a series of dishonest and personally nasty claims that were easily disproved. Good for them, but if only they had figured it out before they posted the video in the first place.
Or, better yet, if only Jack Dunn hadn't told such obvious lies in the first place. But let's not hope for the impossible.
Bottom line: Boston College is scrambling, because their position is crumbling. They are becoming reckless, and their PR maneuvers are becoming untenable. They should stop. They should just stop. They are trying to control the damage done to the institution by a series of their own failures, and they are, I think, trying to protect themselves from their own perception of their failures. That effort to push away the perception of failure is causing the failure to metastasize. They should face it, concede it, and examine it.
The point has come at which nothing is more harmful than the institutional insistence on seeing a significant failure as primarily a public relations problem that can be massaged through messaging.
Thursday, January 26, 2012
Thanks to Chris Bray for the thoughtful post on the Belfast Project case. I want to respond with some thoughts about the law of evidence and the law of civil disobedience that Chris's comments have prompted.
Why It Might Make Sense To Reject An "Oral Historian's Privilege"I've said before that I think the question whether the courts will recognize a privilege to refuse to disclose oral histories is a toss-up. The question probably won't be presented cleanly in the Belfast Project case because the folks to whom the privilege probably belongs, if its exists, aren't asserting it. Indeed, even Ed Moloney and Anthony McIntrye, the two folks who are, as of now, continuing the fight in the courts, don't really focus on the privilege issue, but rather on the more narrow and technical issue of whether the Attorney General complied with the mutual legal assistance treaty under which the UK authorities have sought American judicial assistance. All that being said, here are some thoughts on why the "oral history privilege" could—and maybe should—lose in court.
John Henry Wigmore, the great scholar of the common law of evidence, wrote:
For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man's evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.8 Wigmore on Evidence §§ 2192, 2286 (McNaughton Rev.).
* * *
In general, then, the mere fact that a communication was made in express confidence, or in the implied confidence of a confidential relation, does not create a privilege. This common law rule is not questioned today. No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice.
Anyone who has watched a juicy Congressional hearing or an episode of Law and Order knows that there are indeed legal rules—“privileges", in the lingo—that allow witnesses to refuse to testify (or, as in the Belfast Project case, to refuse to turn over documents in response to a court order). There is, for example, the attorney-client privilege, which allows clients to refuse to testify about communications with their lawyers. There is the spousal privilege, which allows one spouse to refuse to testify about communications with the other. There is the privilege against self-incrimination, which allows a witness to refuse to answer questions if the answer would tend to incriminate him. And so on.
Why do we have these privileges? Because we think the benefit obtained by allowing certain communications to be kept confidential outweighs the harm to the administration of justice that occurs when otherwise relevant evidence is excluded from a trial. (The privilege against self-incrimination is special: we have it because the Constitution says so). But there are lots of social goods that we could obtain by creating privileges. For example, maybe people would be more candid with their physicians if their doctor-patient communications were privileged, and maybe that kind of candor would lead to better health. But the fact is that—in Massachusetts at least, where I practice law—there is no general doctor-patient privilege. So it's clear that no every socially beneficial kind of confidentiality will be privileged in court.
The closest privilege to the "oral history privilege" that Chris Bray and others wish were applied in this case is probably the so-called reporter's privilege, which is the privilege of a reporter to refuse to disclose the confidential source of a story he or she has published. Now, we use the term "reporter's privilege" as though the privilege were as well-established in the law as, say, the attorney-client privilege, but that's simply not the case. If it does exist, it's a qualified privilege, that is, a privilege that, unlike the attorney-client privilege, can be overridden in cases of particularly pressing necessity. But let's simply assume for the sake of argument that the law recognizes a reporter's privilege. Do the rationales for that privilege support the notion that there should be an oral history privilege?
To my mind the two key features of the reporter's privilege are these: (1) the source the reporter is protecting is a confidential source whose identity is unknown; and (2) the reporter has used the information the source provided to publish a newsworthy story. The basic rationale of the privilege is simple. We want to encourage people to bring information to the public' attention by reducing the risk that they will be prosecuted, or fired from their jobs, or whatever, if they speak to the press. The public benefit that results from having more information publicly available is said to outweigh whatever benefits result from giving the government or private parties the power to hold a leaker to account.
How does an oral history privilege compare? Well, in the Belfast Project case at least, some of the people who provided the information to the historians—Dolours Price in particular—are publicly known. The question isn't whether she spilled the beans, but whether she spilled lima beans or navy beans, so to speak. (Of course, other of the interviewees are unknown at present). And more importantly, Moloney & McIntyre are not seeking to bring the information at issue to the public's attention, but to shield it from public view until the interviewees' deaths. Of course, the idea is to bring the information to the public's notice some day in the future, but there seems to me to be a time value of information. It's better, from a First Amendment perspective, to make the information available sooner rather than later.
So I think that the justifications for an oral history privilege in this case are significantly weaker than the justifications for a reporter's privilege, and as I noted, it's not clear that a reporter's privilege exists in the first place; if it does exist, it exists in a weak form. These are some of the reasons why I think that the oral history privilege might not, in the absence of legislation, be protected by the common law. But as I say, there are real policies that favor the privilege, so the issue (if properly presented) could come out either way in an appellate court. But I don't think that the question of privilege is really properly presented, since the only parties now pressing the point, Moloney and McIntyre, likely lack standing.
Civil DisobedienceCivil disobedience is largely a matter of conscience, and I think it's admirable when people prompted by sincere conscientious beliefs and willing to accept the consequences engage in civil disobedience.
But I have drawn a distinction between real, live human beings and institutions. What am I talking about? Well, as a first cut, some have called for "Boston College" to engage in civil disobedience. It's not entirely clear what this means in practice. "Boston College" is an impersonal institution that only acts through people. "Boston College" disobeying the law boils down to particular people disobeying the law. If "Boston College" is to disobey the law by, say, burning the Belfast Project interviews, what real human being is going to have the job of putting match to paper?
But let's assume that we understand what is meant when someone calls for "Boston College" to engage in civil disobedience. And let's assume that the punishment is, for example, a significant monetary penalty that would, if imposed, interfere with the school's educational mission. What should the school do?
This reminds me of a debate that was current when I was a student. The Solomon Amendment was a law that allowed the Secretary of Defense to deny federal grants, including research grants, to any educational institution that that prohibits military recruiting or ROTC programs on campus. Many schools took a principled stand against allowing military recruiting on campus on the grounds that the military—this was while the "Don't Ask, Don't Tell" law was still on the books—violated the schools' anti-discrimination policies. Harvard Law School was among this group, but when the Secretary of Defense announced that he intended to enforce the Solomon Amendment and deprive Harvard of all federal funding, Dean (now Justice) Elena Kagan decided to make an exception to the School's anti-discrimination policy rather than put all of Harvard's federal funds at risk. She was criticized by some for an unprincipled decision that put money ahead of ideals. But I think she made the right decision. Anti-gay discrimination is an important issue. But there are lots of important issues, and the school has responsibilities to lots of real human beings: its employees, its students, and so forth. This is the reason why I suggested that the idea of civil disobedience doesn't apply to institutions in the same way it applies to real people. And I think that idea is both principled and practical.
"From the very beginning of this project, which was conceived by Ed Moloney -- he approached Boston College with the idea to record conversations with former paramilitaries from the IRA and the UVF, and he asked if we would be interested in being a repository of these materials. Boston College is America's leading institution on Irish studies, Irish history, Irish literature. We agreed to add it to our extensive holdings as one more example of something that could be used as a resource for future historians, for journalists, etc., regarding the Troubles."
So this Moloney guy shows up on campus one day, and he's doing this project -- all his thing, totally his own effort, has nothing to do with anybody on campus -- and he asks BC if, you know, could you spare a little shelf space in the library so I have a place to park this stuff? And BC already has a bunch of Irish stuff in the archives, so they figure what the hell, we'll toss it in there "as one more example" of stuff we already had, yawn. Had nothing to do with us, you understand, we were just a "repository" that the Moloney guy chose for his own work.
Now. The Boston College Chronicle is BC's internal newsletter, written and produced by the school's Office of News and Public Affairs. That office is run by, you'll never guess, Jack Dunn. Yes, he's the guy from the video.
Here's page 5 of the March 3, 2011 edition, published two months before the subpoenas arrived for the Belfast Project material:
Hachey and Oneill
You can view an html version of the story on BC's website here, or download a complete PDF file of the eight-page newsletter, with Jack Dunn's name on the masthead, here.
So before the arrival of subpoenas, it was "a project organized by Boston College," it was "Administered by the University’s Center for Irish Programs and the Burns Library," and BC described it in a university publication as "the Boston College Oral History Archive on the Troubles in Northern Ireland."
Then came the subpoenas, and a protracted legal struggle, and oh, that old stuff? Yeah, Ed Moloney came by and dropped those off while we were inside watching the game. Not ours -- what's it all about?
If you have LexisNexis access, entertain yourself for a few moments by reading the March 22, 2010 story in the Belfast News titled, "US-based archive on Ulster Troubles," by Sam McBride. Thomas Hachey, the director of BC's Center for Irish Programs and one of the two men pictured on the Chronicle page above, is repeatedly quoted using the word "we" as he describes the Belfast Project: "We began this oral history," "We're doing this not for ourselves but for posterity," "The people that we went out and interviewed."
Of course, it's possible that Hachey was experiencing a psychological crisis at the time that caused him to believe he was Ed Moloney. That happened to me at Starbucks, just this morning, and the cashier wouldn't let me use Chris Bray's credit card until I returned to my own mental and spiritual interior. But whatever the cause, Thomas Hachey used to believe that he had been somehow involved in Ed Moloney's scheme to run an oral history project in Northern Ireland.
So did his university.
Wednesday, January 25, 2012
-- Marie Daniels
Judges are careful people, and it's always an interesting moment when they say things they don't need to say. At a district court hearing on Tuesday, Judge William Young ruled that researchers Ed Moloney and Anthony McIntyre do not have legal standing to sue Attorney General Eric Holder and a federal prosecutor in Boston who has sought to enforce subpoenas for confidential archival materials on paramilitary organizations that were active in Northern Ireland during the Troubles.
That closed the matter: no lawsuit could be sustained. The end. Pending resolution of an appeal, the DOJ will ultimately receive all or part of the interviews that eight former IRA members granted to the Belfast Project at Boston College, despite assurances that the interviews would be kept secret as long as they were alive. They will pass those interviews along to police in the UK for political theater against enemies of the British state, in the matter of a forty year-old murder that no one had ever bothered to seriously investigate before. (BC immediately surrendered a ninth set of interviews to the government last year, as the interviewee's death had mooted the promise of confidentiality.)
But then the judge kept talking. After issuing his ruling, Young added his assurances that he would have sided with the Department of Justice on the merits, had the case ever reached that point. Holder, he concluded, had properly performed the balancing test required of him by a legal assistance treaty between the US and the UK; the subpoenas the DOJ sought on behalf of the British government were appropriate and reasonable.
Place this unneeded revelation against Young's statements, during the hearing, about the project Moloney and McIntyre undertook to interview people who fought in a long, low-grade civil war: "I've read thousands of pages of the transcripts. This was a bona fide academic exercise of considerable intellectual merit."
Young also conceded the threat the subpoenas present to oral history, the importance and value of which he readily acknowledged.
Here, in a ten-minute discussion, are the challenges academic researchers face in court when they study topics and organizations that anger the state. The judge says that the specific research is legitimate and valuable, that academic research is generally important and deserving of protection, that individual researchers have no standing to contest subpoenas of archived material that their institutions fail to defend, and that a third of a protected and politically explosive archival collection must be surrendered to a government that ignored the crime at hand for several decades.
Put that a little more simply: in court, controversial research is not protected from government intrusion. When the government claims to be seriously investigating major crimes, however implausibly, researchers will not win. The judge is not on your side, and under those circumstances cannot ever be expected to be.
Nor do academic researchers have protection in the wisdom of the executive branch agencies that pursue these subpoenas in the first place. As I've argued many, many, many times, the Boston College subpoenas serve a nakedly political inquisition into enemies of the British state. It is not a murder investigation in any usual sense, despite the unrelentingly obtuse efforts of federal prosecutors to understand it on those terms. A government lawyer is a bureaucrat, a blunt object in a suit, and would subpoena a milkshake if someone told him to. (And then stand in the hallway outside the courtroom and make solemn statements to the credulous press about the centrality of Defendant Milkshake to the gravest evils of our time.) As with most things in our historical moment, you cannot trust government institutions to be smart or careful or reasonable. They are broken. They exist to serve their own interests.
But there is a solution. It's ugly, costly, and painful, but a solution nevertheless.
In 1993, Rik Scarce was a PhD candidate at Washington State University, where he researched radical environmentalist and animal rights groups. After an attack on a university animal research lab, Scarce was subpoenaed to appear before a federal grand jury and testify about his personal discussions with members of the Animal Liberation Front. He refused to offer that testimony, prompting a federal judge to jail him for contempt. The judge gave up 159 days later, and ordered Scarce's release. He never talked.
I didn't know about Rik Scarce until recently, when Anthony McIntyre brought to my attention a 2001 article by John Lowman and Ted Palys, "The Ethics and Law of Confidentiality in Criminal Justice Research: A Comparison of Canada and the United States." Lowman and Palys identify several instances in which academic researchers and institutions have simply refused to cooperate with police and prosecutorial trespass on research.
Among the most striking incidents was the FBI's efforts to obtain research material from the Kinsey Institute at Indiana University. The institute signaled that they would not comply with a subpoena, forcing the FBI to consider what steps they would take to enforce it. The refusal to cooperate ended the threat. As Lowman and Palys wrote, "The FBI withdrew when members of the Institute made it clear that, regardless of the legal consequences, they would not release confidential research information."
Lowman and Palys describe the "general response of researchers to threats to confidentiality from the third parties, be they agents of the state or private litigants," with three words: "resistance, resistance, resistance." (If they update the article, they'll have to add a fourth word for Boston College, breaking the pattern.) Their article is important reading, suggesting ways to design and conduct research in the first place and to defend it in court when a subpoena arrives. If you've followed the BC subpoenas closely, and care about the problems that those subpoenas suggest, it will be well worth your time to read it.
But the final lesson I took away from Lowman and Palys is the same lesson I got from the federal court hearing this week: at some point it simply becomes necessary to refuse, and to pay for the refusal. Ted Folkman, a Boston lawyer who has followed the BC subpoenas with close attention, recently took up this very question:
"[T]he subpoena recipient is Boston College itself, not an individual. There are certainly cases where an individual’s professional ethics require the individual to refuse to comply with a subpoena even if the subpoena is enforceable. Thus reporters are prepared to go to jail to protect confidential sources. But does it make sense to ask an organization such as a major college to do likewise? I think not, because institutions have responsibilities to many people, not just to a single constituency."
My conclusion this week, after watching the court make sausage, is just the opposite. Institutions that sponsor research need to protect that research, or they'll become hollow shells that only host projects safe enough to never need protection.
Academic researchers, and the institutions that house them, cannot comply with subpoenas if doing so betrays and endangers research subjects. They need to break the law.
Because, as the BC subpoenas show, it's already broken.
Sunday, January 22, 2012
"It has been a week of more heartache and drama than 'Gone with the Wind.' More intrigue than a John Grisham novel. And the story has been so Southern Gothic as to make William Faulkner wake from the dead to enjoy the show."
Why stop there? Willa Cather! Mint juleps! Cat on a Hot Tin Roof! Journalism in action, ladies and gentlemen. Two weeks before the primary, Mitt Romney's poll numbers were hotter than a big plate of Waffle House grits, but then they wilted like a Clemson cheerleader's hair in a big ol' afternoon thunderstorm. Print reporters, feel free to paste any of these into whatever you're writing today.
But keep watching, because here's Charles Hurt describing the outcome: "Scoring a measly third was the original Bible-thumper himself, Mr. Santorum, who got busted in the lip by the very buckle of the Bible Belt."
Anyone who thinks a conservative Pennsylvania Catholic scans as a Bible-thumper in the South is missing a few small bits of nuance, and be sure to look for Charles Hurt's next column on the Jesuits and all their traveling tent revivals. Pope Benedict XVI will now handle a serpent and speak in tongues, in the tradition of his people. They use corn whiskey for communion, don't they?
But if Hurt missed every single shot at discovering some nuance, so did everybody else in his aggressively shallow profession. In a conservative Southern state, the top three finishers in the Republican primary were a Mormon venture capitalist from New England, a Catholic lawyer from Pennsylvania, and a Catholic with a PhD in European history. It's all so terribly Southern Gothic, isn't it? It hearkens back to the Jim Crow era, insert own Confederate reference here. There they all were, poking at the dirt with a stick, dreaming of the Lost Cause, and voting for the guy from Bain Capital and the Church of Latter Day Saints.
Just goes to show you: down South, nothing ever changes.
Saturday, January 21, 2012
In a remarkable Saturday filing, Assistant U.S. Attorney John McNeil burps, pats his full belly, and orders a few more courses. The Department of Justice is not satisfied with a court ruling that hands them fully a third of the nominally confidential IRA interviews archived at Boston College.
Pushing ever further into the braveness of his Dadaesque performance, McNeil asks Judge William Young to reconsider his pronouncement that he has issued his "final order" in the matter of the BC subpoenas. Describing a set of subpoenas that seek information on the kidnapping and murder of Jean McConville, McNeil notes that BC has not yet completed their task of compliance, since "the Respondents have yet to inform the Court of the status of their review of the non-IRA interviews."
Those non-IRA interviews are from the other half of the Belfast Project collection, which involved members of loyalist paramilitaries in Northern Ireland. So the federal government is now diligently insisting that the archives be combed in full to determine if any members of the UVF or UDA joined in the IRA's murder of a British informer.
We need to dig into this George Washington character and find out if he had something to do with the death of that poor bastard Nathan Hale.
And to think I've argued that the DOJ hasn't bothered to understand the political implications of the task it was being asked to perform.
Second, McNeil asks the court to require that BC turn over "those materials related to interviewees AA, BB, and CC (as they are identified in the ex parte filing), if they are not already included in the five complete interviews to be disclosed."
Why? Watch closely:
"Interviews of these individuals are responsive to the subpoenas in this case and are likely to have substantial investigatory value even if the interviewees do not make specific mention of the McConville kidnapping and death."
See how that works? Subpoenas for “any and all interviews containing information about the abduction and death of Mrs. Jean McConville" can force the disclosure of whole broad ranges of interview materials, "even if the interviewees do not make specific mention of the McConville kidnapping and death."
Interviews that do not contain information about the abduction and death of Mrs. Jean McConville should be handed over to the government in response to subpoenas for interviews that do contain information about the abduction and death of Mrs. Jean McConville. All your base are belong to us. Just give us everything on campus written in English, and we'll call it even.
And so on. Complete motion is below.
I did want to highlight this language from pg. 2: "As with any subpoena, the Respondents bore the burden of reviewing all material in their possession for responsive material and then either producing that material or seeking relief from the Court. The Respondents in this case failed to undertake the first step of reviewing all potentially responsive material. While the Court’s orders largely obviated the need for the Respondents to make such a review (because the Court undertook that task itself), that task remains incomplete with respect to the untranscribed tapes."
So here's the government saying the very thing that I've said over and over again: BC had a responsibility to figure out what material in its archives was responsive to the subpoenas. Because they never bothered, and still haven't begun to bother, the court did it for them, and forced them to hand over a whole set of confidential materials that never needed to leave the archive.
Govt Motion to Reconsider
Also to be produced: materials from particular interview sessions with two other interviewees, for a total of seven interviewees whose interview materials are be turned over in full or in part.
The order takes effect upon release of an appellate court's stay order.
I'll have much more about this shortly.
Judge Young Order Jan 20 2011
Wednesday, January 18, 2012
Thomas Hachey is the director of Irish programs at Boston College. Robert O'Neill is the Burns Librarian, and as such oversees the archive that holds Belfast Project interview materials. In an op-ed piece published in the Irish Times on Jan. 19, both men make a shameful claim that doesn't withstand a moment of scrutiny.
Remember that BC received two sets of subpoenas for Belfast Project materials: one set in May for interviews conducted with two specific subjects, the former IRA members Brendan Hughes and Dolours Price, and one set on Aug. 4 that demanded “any and all interviews containing information about the abduction and death of Mrs. Jean McConville."
On Dec. 16, the court rejected BC's motion to quash, and ordered BC to produce all interviews germane to the subpoenas by Dec. 21.
Here's the critical part: BC's outside lawyer, Jeffery Swope, sent an email to Belfast Project researcher Anthony McIntyre on the evening of Dec. 20, the day before the subpoenaed materials were due to the court, to ask for McIntyre's help in identifying which interviews were germane to the Aug. 4 subpoena.
McIntyre declined, but the request was absurd on its face. BC received a subpoena on Aug. 4 for material that they were ordered on Dec. 16 to hand over by Dec. 21. They began to try to identify materials that were responsive to the subpoena with an emailed message to the researcher on Dec. 20.
Because BC couldn't figure out in late December which materials were responsive to a set of subpoenas they received in early August, they were forced to deliver to the court their entire set of confidential IRA interviews, rather than only producing the ones that were germane.
All of this is proved, with embedded court documents that you can see for yourself, in this post.
Now, here's what Hachey and O'Neill claim in their Jan. 19 op-ed piece, and read this very carefully:
"No one knows more about the contents of the interviews of former IRA members than the interviewer himself, Anthony McIntyre, who declined the court’s request to disclose which of the interviews were potentially responsive, thereby requiring Boston College to provide all the IRA interviews to the court for its review."
It's all Anthony McIntyre's fault! They asked him for help, and he wouldn't give it. And after all, they themselves only had 139 days to review materials from two dozen interviewees.
Note what this claim acknowledges. They have acknowledged the claim that they delivered to the court materials that were not subpoenaed, and that they were forced to do so because they couldn't identify which interviews were responsive to the subpoena.
This post? Proven. Now they're just dancing around over the blame, and it's embarrassing to watch.
See for yourself that this quote is not taken out of context, pulled out of a piece in which Hachey and O'Neill discuss the Aug. 4/Dec. 16/Dec. 20/Dec. 21 timing. Here's a link to the op-ed piece again. Read the whole thing.
First, Hachey and O'Neill are lying, shielding the truth from readers in a careful set of omissions. They honestly tried to identify which interviews were germane, but Anthony McIntyre wouldn't help them. Not mentioned: they had more than four months to review the interviews themselves and figure out which ones were responsive to the subpoena, and they didn't bother. Also not mentioned: the supposed effort to get Anthony McIntyre's help came in the form of an email the day before the materials were due in court.
Second, and this is critical: Anthony McIntyre is both an academic and a former IRA member, and he was able to interview other former IRA members because of the trust conferred by his status and his past. To put the entire blame for the loss of these confidential and sensitive IRA interviews on his head, in an Irish newspaper -- and in reference to an investigation, remember, into the murder of an informer -- is to paint a target on him, his home, and his family.
So it's a lie, it's an obvious lie, and it's an explosive lie.
Go on reading the whole piece, and watch Hachey and O'Neill spray blame everywhere else. To blame: Dolours Price, Anthony McIntyre, Ed Moloney. Not at all to blame: Boston College, Thomas Hachey, Robert O'Neill.
How much cowardice and dishonesty can one institution produce?
Monday, January 16, 2012
But it doesn't stick. Look again at yesterday's post about political reporting on South Carolina, which never wanders far from the themes of slavery, segregation, white supremacy, and the Civil War. ZOMFG the legislature raised the speed limit on state highways and the federal government won't like that and so it's FORT SUMTER all over again blaaaarrrrrggghhhhh!!!!! The state cannot assert claims of authority against federal power without the resulting news stories crowing about "state's rights" and Jim Crow. The trap is absolute. In the South, there is no other explanatory schema. The past is alive and active, full stop. A Reuters reporter begins his story on South Carolina politics with the state firing "the first shot in the Civil War."
So imagine this lede in a news story:
The state that oversaw the worst destruction of native life in American history is at it again, trying to secure $100 billion in funding for a high-speed rail line that will connect Los Angeles and San Francisco, rolling through lands once thickly populated by the Yokut and Miwok peoples.That wouldn't make a bit of sense; though every claim is factually true -- though California's proposed high-speed rail line would, in fact, run through lands once thickly populated by the Yokut and Miwok peoples -- the elements don't connect. There's no causal relationship between the dispossession of the Yokuts and the fantasy of a $100 billion high-speed rail line through the Central Valley. And no reporter would ever think to connect the two.
But somehow the narrative conventions for South Carolina are structured around the stubborn knowledge that all stories travel through Fort Sumter. The past is uniformly and invariably causal. The state that fired the first shot of the Civil War is fighting with the federal government again! Nikki Haley's political decisions are animated by her Confederate roots, said the pundit with a straight face.
Sometimes when we talk about history, it's directly applicable: South Carolina is doing X because in the past it did Y, and the appropriations committee in the state House of Representatives obviously funded that new reservoir because of the pernicious and lingering effects of Jim Crow. Sometimes the thread breaks entirely, and California's blue state politics are never in any way informed by the state's earlier treatment of native people.
My own sense is that the unending narrative of Southern backwardness derives from a language of power. It's useful to frame South Carolina's efforts to govern itself as a harking back to Confederate principle, to discover every political claim as a desire to return to Jim Crow. It privileges the movement of power to the center. It serves the ability of a metastasizing oligarchy to capture authority and capital.
The devolution of authority to states and communities is backward. The centralization of power is progressive and fair. See how that works?
Sunday, January 15, 2012
Must... Stay Strong... Must... Overcome... Evidence... Must Not... Yield... to... Competing Fact... BLAAARRGGHH
Framing the story with all the delicacy and nuance we expect from a wire service, Reuters reporter Andy Sullivan opens with the artillery at Fort Sumter: "The state that fired the first shot in the Civil War is once again battling the U.S. government in a racially charged conflict that is drawing heated rhetoric from Republican presidential candidates."
And from there it's off to the races, with calm assertions that "race-baiting...has been an ugly feature of South Carolina politics in the past" and "The rallying cry of states' rights was used to defend slavery before the Civil War and racial segregation during the post-World War Two battles over civil rights." The good-ole boys are yearning for their slavery and their Jim Crow again with all this stuff about the balance of power between the state and federal governments. Indeed, arguments about the nature and boundaries of authority in a federalist political system could only be coded yearning for racial oppression -- what other explanation could ever make sense?
Sullivan even notes the comments of a South Carolina professor who warns him that "injecting race into political discussions risks dredging up stereotypes of an Old South that faded away before most of residents here were born" -- attention Andy Sullivan, are you in there? Hello hello helloooo Echo echo echoooo -- and the reporter dutifully allows that the eternally Confederate state somehow overcame its own racist soul to elect a governor who was born locally to Indian immigrants.
But never mind that South Carolina is governed by the daughter of Ajit and Raj Randhawa, okay, because these shoeless motherfuckers are all about one plug of tobacco away from putting on gray uniforms and secedin' from the Union all over again. After all, "the old attitudes haven't disappeared entirely," and Sullivan finds an "unemployed paralegal" who complains that whites now wear baggy pants like "black thugs." Whenever a political reporter finds a white person in the South who complains about how black people caused the trend of baggy pants, Thomas Friedman encounters a cab driver in South Asia who can shrewdly discourse on the dynamics of globalism. It's a 1-to-1 relationship, like a bell ringing and an angel getting its wings.
And so here, in short, is the analysis: South Carolina is animated by -- you might say trapped by -- its past, caught in a deep cultural pattern inescapably informed by an agrarian, rural, pre-modern, slaveholding history. Caught forever in the fact of their origins, people in South Carolina make political decisions that can't help but echo the realities of slavery and Jim Crow. To discuss the political authority of states in the federalist system is to invoke, precisely and without variation, the specter of "state's rights," that old segregationist dogwhistle. It's all just the Confederacy and the nightriders again, in one form or another.
And that, you see, is why so many of South Carolina's most conservative Republicans are uniting behind a Mormon venture capitalist from New England.
But that last part comes from Reuters, so I wouldn't trust it.
ADDED LATER: A week before the South Carolina primary, polls show that the top four Republican candidates competing for conservative Southern votes include a Mormon in first place and Catholics in second and tied for third. It's "Pitchfork Ben" Tillman all over again, I tell you, with this atavistic return to the Deep South's infamous embrace of Papists and Latter Day Saints. Jim Crow and the slave power echo forever.
Saturday, January 14, 2012
Start with the headline of Begala's piece: "The GOP's Suicidal Tendency." See, as the GOP moves to the right, it's destroying itself. That's why the midterm elections were so devastating for the Republicans, and Nancy Pelosi has consolidated her hold on power in the House. We've barely even begun reading, and already we are learning deep truths from an experienced political operator.
And now, Paul Begala will deliver a powerful history lesson:
"The story of the Republican Party in the last half century is a nearly unbroken march to the right. Nixon was more conservative than Eisenhower. Goldwater was more conservative than Nixon. Reagan was more conservative than Goldwater. Gingrich was more conservative than Reagan. And George W. Bush was more conservative than Newt."
So at the end of the Republican road, we get total, unrelenting contempt for the helper government and the sheltering reach of its protective regulation; as the brilliant Thomas Frank recently put it, the Bush 43 administration brought us “the golden years of libertarianism.” Medicare Part D, the Patriot Act, warrantless wiretapping, rising federal budgets and deficits, the metastasization of the Federal Register: libertarianism run amok. Didn't they believe in having any government at all?
This rise of an ever more powerful libertarian right is why our central government is shriveling, federal spending has plummeted to a parsimonious four trillion dollars a year, and just 46 million people get food stamps. It's like there's almost nothing left now, and the District of Columbia has become a dead zone of low incomes and minimal activity.
Stop in anywhere along the path of the long conservative march through the 20th century, and watch the movement to the right. Richard Nixon's wage and price controls, for example, are a prime example of laissez faire economics at its unfettered worst. And he created the Environmental Protection Agency. See the movement to the hardest right? It chills one to the very bone and stuff. And now imagine if Mitt Romney gets elected -- he'll shut down the federal government entirely, just like the way state government ceased to exist in Massachusetts when he was elected to govern that devastated commonwealth. All of this makes perfect sense if you have a head injury or were deprived of oxygen in the womb.
Of course, Paul Begala is not trying to speak accurately or honestly about anything, and that's not his job. His function on earth is to create narrative, to establish political stories that secure power for his faction in the oligarchy. But why would any magazine editor on earth be dumb enough to publish this toxic sludge?
The story of our time is the story of the rise of central power, hitched to the merging logic of corporate neoliberal and neoconservative factions that exist to serve themselves and their clients, without any deeper ideology than that. Paul Begala is selling a product, and Newsweek will give him the Glengarry leads if he gets them to sign on the line that is dotted. Coffee is for closers.
Shut the door in their faces. Just stop listening.
Thursday, January 12, 2012
The Economist wanders over and finds the U.S. government dumping subpoenas on Boston College for research materials on paramilitary organizations that were active during the Troubles in Northern Ireland. A set of fact claims clunk against their thick skulls, and their fingers twitch. They start to type. This, ladies and gentlemen, is how they get their bread: they type stuff.
The first paragraph is about the need for justice, for bad people to be brought to account for their crimes. Jean McConville was murdered, full stop. "From a police point of view, all such serious crimes must be investigated, using all available evidence." Jane Tennison is on the fucking case, people, and she will not be deterred. She will by god hunt down the criminals and haul them before a judge to face what they've done. From a police point of view, all such serious crimes must be investigated, using all available evidence. This is a murder investigation, the most serious police business there is, and murderers must be caught.
Last paragraph: "It is highly unlikely that Mr Adams will be prosecuted even if the tapes do reach Belfast. But his reputation may suffer if he is linked to an IRA cell that carried out punishment killings."
So we start out with justice, but we end with political reputations. I mean, nobody's going to be prosecuted or anything, don't get me wrong, but from a police point of view, all such serious crimes must be investigated. It's like The Economist assigns different paragraphs to different writers, and they aren't allowed to communicate before the issue is put into print.
Slopping out this wandering theme, the magazine craps out more slop to support it. On Jean McConville: "The IRA killed her, believing, almost certainly wrongly, that she was an informer for the British."
I kept looking for the part where they showed evidence for that "almost certainly wrongly." I'm still looking. When you're shaping an argument and you need an act to be entirely senseless to fit your chosen position, just make it up. In contemporary English, the term for this is "journalism."
The only public evidence for the claim that McConville probably wasn't an informer is the 2006 report from the Police Ombudsman for Northern Ireland. The ombudsman got the British army on the phone and said that, like, did you guys use a widowed mother of ten as an informer in Divis Flats and get her killed and leave her children without parents? And the army said that, hey, no way man. And the ombudsman typed it up. The good news is that the ombudsman has demonstrated the skills required for a career in contemporary journalism, and has another line of work available when the government paychecks stop.
Note also that The Economist doesn't say a fucking word about why the PSNI is investigating a murder that happened in 1972. Not a word. "From a police point of view, all such serious crimes must be investigated, using all available evidence." Forty years later. Feel free to explain that to your readers at some point.
And watch this terrific evasion: "The British government shows no enthusiasm for prosecuting Mr Adams. But this has not stopped the Northern Irish police, who are also investigating more than a dozen other unsolved killings by the IRA and other paramilitaries."
The problem is that, under the terms of the legal assistance treaty that the PSNI is using to get the interviews at Boston College, the police can't contact U.S. authorities directly. Instead, they contact their designated "central authority" for the processing of international requests, the Ministry of Justice for the United Kingdom, which then directs a formal request to the central authority in the United States, the Department of Justice. The effort to complete the request and obtain the desired materials is managed between the central authorities, between the Ministry of Justice and the Department of Justice. When the Ministry of Justice gets the materials, they send them on to the police, who asked for them in the first place.
So a the magazine invents a split in which the "British government" is sitting over there in a corner, enjoying a sandwich and minding its own business, while the PSNI rattles cages and runs wild in the streets. But the British government is pursuing the Boston College material. The British government has asked the American government to issue subpoenas. But somehow they show "no enthusiasm" for the thing that they are actively doing.
A whole patchwork of absolute nonsense, wrapped up in a steaming pile of bullshit. Well done, The Economist.
But of course, lazy bullshit is the new normal. Watch the Wall Street Journal dish it out like the pros they are:
"Went nowhere for decades." Unexplained.
At the heart of the legal dispute is the unsolved, nearly 40-year-old killing of Jean McConville, a widowed mother abducted in front of her children and murdered by the IRA as a suspected spy for the British government. The IRA has admitted to the murder though the killers never were identified.
At least have the sense to be embarrassed.
Parents in a Connecticut suburb are outraged over disturbing disciplinary actions at a local elementary school.Then the reporter says that school officials deny the allegations but promise to investigate -- it didn't happen, but we'll find out if it happened -- and it's back to Larry in the studio.
They claim students are being locked in unsupervised “scream rooms,” where some children have harmed themselves, reports CBS 2’s Hazel Sanchez...
“My daughter is telling me that there’s kids being taken out in ambulances, by stretcher,” parent Sean Archer told CBS 2’s Hazel Sanchez on Wednesday...
“From what I heard it’s more traumatizing for the child than it was as a help,” parent Jeff Daniels said. “Kids were hitting their heads on the concrete wall. Kids were urinating in the room.”
But check this shit out, CBS 2's Hazel Sanchez: When someone calls for an ambulance, there's a record of the call. You can take three minutes to find a supervisor at the local 911 call center and ask if they've had any requests for emergency medical services at the school. You can call the local fire department, the local ambulance companies, the local hospital. You can check the fucking claims and see if there's evidence to support them, rather than just gathering them up with your ears and emptying them out with your mouth. And you can do all of that in about twenty minutes, if you know how to 1.) Google, and 2.) Press the little buttons on a phone and make word-sounds into the end with the talk-thingie. You can seek evidence. Evidence. (Long pause.) No, Hazel, evidence. E-V-I-D- you know what, never mind.
My bet is that if the school was calling for ambulances to take children out of the school on stretchers, at some point the police would have also diddled on over and wondered what was going on. The remarkable thing about 911 calls is that you usually reach a minimum of two public agencies on the other end, and one of them has the guns and the handcuffs and stuff.
But then take someone who can't discover which way is up when someone says that Oh, they're always dragging bloodied children out of that grade school in ambulances, and assign that person to report on, I don't know, school district pension costs. Or the federal budget. Or a war.
And there you have it.
Tuesday, January 10, 2012
Monday, January 9, 2012
Now about the implications. Folkman writes, "The contract with Moloney shows that the College and Maloney were on notice that US law could limit their ability to promise confidentiality; but that awareness did not make it into the agreement that was shown to the interviewees."
So interviewees were assured, and did believe, that BC would protect their interviews from disclosure, full stop. (Though Ed Moloney will surely contest the claim that he was on notice about the limits on confidentiality.)
Then, quoting Folkman again: "For reasons I have given elsewhere, I do not believe that the College’s promise of confidentiality has any effect on the government’s subpoena."
It's very likely that he's right about that last part. But. In a project that BC commissioned, oversaw, and agreed to protect, people took an extraordinary risk, exposing politically explosive and personally dangerous information. They did so because BC promised to protect them, a fact the university is now trying to fudge. But the failure doesn't come down on the heads of the institution that failed, commissioning a dangerous project without adequate protections; rather, the failure comes raining down around the researchers and interviewees. Everyone is damaged but the institution that commissioned the project and agreed to archive its results.
If BC made promises it can't legally keep, and the people to whom it made those promises will be badly harmed by that failure, then BC had an obligation to keep those promises anyway, and to take the consequences. Journalists go to jail to protect sources, but academics shrug and say that hey, the law says we have to abandon our promise to you, what can we do?
If you make a promise, are you willing to pay a price to keep it? What's a promise worth?
Sunday, January 8, 2012
Doj Motion to Dismiss Holder Suit
Thursday, January 5, 2012
Wednesday, January 4, 2012
Monday, January 2, 2012
So here's what the commander of the local sheriff's station said about it: "'We're on the ground, we're in the air, every asset we have in the county is put toward this,' said Sheriff's Capt. Kelly Fraser. 'Call 911 -- don't engage. Let us do the work. Let's catch this guy or these people who are doing this.'"
Someone is lighting fires under your sleeping neighbors -- whatever you do, don't engage. Back off and call for the intervention of government agencies. That's a whole view of society and mutual obligation, right there: be sure to do nothing but place a phone call, because you don't have a shiny piece of metal on your chest. But no worries, 'cause we can usually get there in three to five minutes.
This attitude is a historically recent development. It's not inevitable, natural, or irreversible. The bureaucrat's argument for the rest of us is "don't engage," and that argument has its own purposes. The exclusion of mutual obligation serves organizations that become more important if they provide exclusive functions; if you can't help your neighbor, the institution that can help your neighbor becomes more thoroughly indispensable. State power and institutional prestige find natural limits in a society with strong habits of neighborly mutuality.
Related, can we stop worshiping public figures as totemic bearers of exceptional wisdom?