Thursday, January 5, 2012

Reckless Negligence: Expanding the Case Against Boston College

And it keeps getting worse.

In this post, I provided evidence from court records to show that Boston College surrendered more of its Belfast Project interviews than the government had subpoenaed. Now I'm going to add another layer to the discussion of the very same materials:

Boston College was warned in advance that the British government was likely to embark on a fishing expedition, expanding its request to the U.S. government for subpoenas of interviews with former members of republican paramilitaries in Northern Ireland. The researchers who managed and conducted the interviews gave that warning, and also offered BC a way to protect the targeted material from further subpoenas. And BC missed the chance.

Warned that more subpoenas of confidential and politically explosive research material were likely, and given a way to protect against that likelihood, Boston College did nothing.

This means that, first, BC gave up more material than the government subpoenaed; but also, second, that the material in question could have been removed to a safer jurisdiction before new subpoenas were issued.

Evidence in a moment, but first a bit of critical background: BC received a first set of subpoenas for Belfast Project material on May 5, 2011. See page two of this court document for that information. The first subpoenas narrowly targeted archived interviews with just two people: Brendan Hughes and Dolours Price, both members of the Provisional IRA.

On August 3, 2011, BC received a second set of subpoenas. See page two of this court document for that information. These subpoenas were much more broadly framed, seeking access to "any and all" interviews in the Belfast Project collection that made reference to the kidnapping and murder of Jean McConville. (This is where every interview in the PIRA collection was lost; since BC never bothered to figure out which interviews contained such references and were germane to the subpoenas, they ended up turning over every interview to the federal court.)

So, to begin with, BC had ninety days between these two subpoenas to think about the possibility that the UK would expand its efforts to get confidential material from an embargoed collection.

Early in that ninety day period between subpoenas, several discussions made the threat of new subpoenas explicit. Ed Moloney, an Irish journalist who had run the Belfast Project, and project researcher Anthony McIntyre both warned BC officials of the possibility that new subpoenas would be issued. Those warnings were delivered to Thomas Hachey, the executive director of the Center for Irish Programs, and Burns Librarian Robert O'Neill.

Below, a May 31 email message to Hachey from Moloney, with redactions at the top to protect the identities of interviewees and to hide sensitive information on the project (note that the redactions end just before a sentence that says, "essentially it is this," the place in the message where the description of Moloney's proposal to Hachey begins):Email 02

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."

Next, here's a June 2 email from Moloney to O'Neill, with similar redactions:
Email 03

Again, a clear warning: "i believe there is a strong possibility that the authorities may be back with another subpoena." And a clear proposal to assure the confidentiality of material that BC has promised to protect: "we may have to consider returning some interviews." Note also that this message says Moloney has talked with Jeffrey Swope, BC's outside lawyer in the matter, who (Moloney says) has told him that a fishing expedition for more material is a real possibility.

Finally, here's Hachey's June 2 response to Moloney, with redactions to remove unrelated information about BC's budgeting process:
Email 05

So Hachey has also talked to McIntyre, who "explained his concerns in much the same context as you had." He has now heard multiple warnings, urgently and repeatedly expressed. His response is remarkable: "under no circumstances would BC allow the documents to be sent to an alternative site (be it in the US or Ireland)" because BC's attorneys "felt that did violate the understanding that we had with participants re: the safe deposit of their recollections."

Warned that new and broader subpoenas were likely, BC held a threatened collection in place, waiting for subpoenas to arrive, because of their commitment to protect the confidentiality of the collection. The result: the new subpoenas arrived, at which point it was too late to protect anything, and every interview in question was ultimately turned over to the federal court in Boston.

On Wednesday evening, I sent an email message to Hachey, Swope, and BC spokesman Jack Dunn, asking them a series of questions about these email messages between Moloney and BC officials. I offered to delay this post if they told me they wanted to respond but needed more time. A full business day has passed; I received no responses at all. If anyone at BC responds at some point, I'll post the response here. Of course, the comment thread to this post is wide open to anyone at BC, unmoderated and unedited. I only remove spam. (I also have received no response to the question I asked Dunn about the ownership of the interview materials.)

I think they ought to explain themselves. Obviously they don't have to do it here. But somewhere, honestly and in detail, and soon.


  1. Chris,

    you have set this out very well. BC had ample time and and a solution to offset most of the damage yet failed to do so.

  2. Chris, I think Mr. Moloney should speak with his lawyers before allowing emails like this to be posted on the internet, or better yet, before writing emails like this. If he is right and BC expected another subpoena, then of course BC could not spirit the materials out of the country or engage in a sham transaction to attempt to avoid the subpoena. Right?

    --Ted Folkman

  3. Materials that have not been subpoenaed have not been subpoenaed.

  4. Adding that Maloney and McIntyre were trying to protect a whole collection after a breach of confidentiality, not to hide specific information narrowly addressing a particular crime. They did not say, "Let's hide the evidence that Jean McConville was murdered!" Rather, they said they were worried about a broad and politicized fishing expedition, and proposed to move the whole collection, minus materials that had been subpoenaed.

  5. And now you've got me thinking about it, and the comments will just keep on coming: One of the other things that's happening now is that the loyalist interviewees are demanding that BC return their interviews, precisely because the republican interviews have now been successfully subpoenaed. It seems to me -- I'm not a lawyer -- that one of the implications of an argument that BC shouldn't have moved unsubpoenaed materials because of the possibility of new subopoenas is that once something in a archival collection is subpoenaed, the archive is obligated to lock down the whole collection and preserve it in case of future subpoenas.

    That is, once the government subpoenas X part of a collection, then BC has to preserve Y part of that collection in case the government wants it sometime later on.

    I don't see the argument for that. If the government wants Y, then let them subpoena it in the first place. Until they do, it's free and unfettered, and the owners or custodians of Y can move it as they see fit.


  6. If Ted Folkman's logic is followed the researchers themselves should never have waited around. They simply should have been rushing off to the authorities offering the tapes and promising to be witnesses against the very people they interviewed; this in spite of absolute confidentiality as stipulated by the university. A university and its researchers are not nor should never be an evidence gathering arm of the state. They have an ethical obligation to protect their human sources from the harm that would accrue to them if what they disclosed in confidence was disclosed.

  7. Well, look, I don't practice criminal law and I'm not giving legal advice, and I wish Ed Moloney well. But when I read that "he 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, I get worried. Talk to your lawyer, is all I'm saying!

  8. Thanks for the comments, Ted. "Talk to your lawyer" is never bad advice in circumstances like this, for sure.

  9. And I can imagine the DOJ deciding to be nasty and vindictive, in this case.