Monday, January 9, 2012

And Starring Jack Dunn as Tweedle Dee

In a smart, alert post at Letters Blogatory, Ted Folkman notices Boston College wandering lost as officials there try to explain what promises were made to Belfast Project interviewees. This is must reading for anyone interested in the BC subpoenas.

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?


  1. Chris, thanks for commenting on my post. One point I think should be included is the responsibility of the interviewees themselves. Assuming they did believe they had a promise of absolute confidentiality, their belief was not, in my view anyway, reasonable. So I think there is plenty of blame to go around.

    Also, I am surprised that you agree with me that the promise of confidentiality has no bearing on the enforceability of the government's subpoena. That's what the whole court case is about, isn't it?

  2. Ted,

    I do agree with you about the likelihood that the government will prevail in court, but I also think that the very existence of the case reflects some spectacularly bad policy, and I think MLATs create some very bad law. The courts leave policy to the other branches; the fact that a court will let the executive branch do something doesn't mean that it's a good idea for the executive branch to do it. I think Moloney and McIntyre are correct in the substance of their claim that the DOJ failed to properly evaluate the political purposes of the British request for subpoenas, but I don't think the courts have a role in second-guessing bad policy decisions.

    (I just saw your comment at my other recent post, here -- I think we're drawing the same distinction.)

    About the interviewees, I think there's an important political context for their decision to participate. There was a long civil war in Northern Ireland, and then it ended; both sides agreed to a peace without recrimination. IRA members were released from prison, the army quit its security role on the streets of NI, police reform added Catholics to the (renamed) PSNI. They thought it was over, and that it was time to reconcile and go to the next chapter. Jean McConville was one of the "disappeared," and her murder first became known for certain because the Provisional IRA announced it, as part of an effort to close the period of armed struggle.

    By way of comparison, the United States government didn't prosecute the leaders of the Confederacy. The South lost; Robert E. Lee surrendered his army and became the president of a college.

    The interviewees talked because they thought the British and Irish republicans alike had agreed to close the chapter and attempt peace and reconciliation. It was a reasonable assumption in the context of its time, and it's very bad politics for the British government to shove its finger into this wound.

  3. I think we are on the same page about the law/politics distinction. I will add only that the MLAT imposes an obligation on the United States under international law. So while, from the perspective of the court, the issue is one for the Attorney General's discretion, the Attorney General may have concluded that the United States was obligated to assist the UK authorities if he concluded that the treaty applied and that none of the permissible grounds for refusing cooperation applied.

    I understand your point about why the interviewees talked, but supposing that they admitted to serious crimes in their interviews (I don't know whether or not that's so), I think they were naive if they disregarded the legal risk they were taking.

  4. By the way, you should encourage the folks at the BC Subpoena blog to open things up for comment!

  5. I didn't know the BC subpoena blog wasn't open for comment. I'll ask, and see what they say. Always glad to see your very thoughtful comments here.

  6. Hi Ted - the BCSN site is an information portal rather than a discussion site, meant to keep people up to date on the latest court movements and media. I'd like to echo Chris though, it is always interesting reading your thoughtful commentary, both here and on your blog. Thanks for keeping an eye on the case.