I said in this post that the "continuing discussion about Boston College and the federal subpoenas of its Belfast Project material is a discussion about the very thing itself, about the place and nature of academic inquiry." But the amicus brief the ACLU of Massachusetts filed yesterday in the legal appeal by Ed Moloney and Anthony McIntyre forces me to reassess.
The continuing discussion about Boston College and the federal subpoenas of its Belfast Project material is a discussion about being a human being, about how to live in a daily exchange with other people and the events that connect us. It's a discussion about the need for skepticism and independent thought, about the importance of critical engagement. It's about the choice between eating what appears on the plate in front of you or demanding to know who cooked it and what's in it. All this, ladies and gentlemen, and in a mere legal brief. It's like they spiked the punch bowl: I was just a little thirsty, and now the room is spinning.
Below this post, I'll cut and paste the summary that Moloney and McIntyre sent in a press release today. But I hope you'll skip it -- I hope you'll read the whole brief instead. Skimming through the procedural boilerplate at the top, you should be able to carefully read the whole thing in less than half an hour. Compare the detail, care, and thought that this brief demonstrates to the dismal, gibbering nonsense that has poured out of Boston College in the wake of these subpoenas.
This smart and engaged brief -- it shows what it means to be alive and to think. It's a joy to read, and a real accomplishment. Please read it.
Press Release and Summary of the Amicus Brief:
In its extensive and hard-hitting amicus brief, ACLUM confirmed that the interviewers for the oral history project on the Troubles in Northern Ireland run by Boston College could face an IRA death penalty if the US government’s bid to force the handover of interview materials was to succeed...
Noting that the killing of suspected informers by paramilitary groups has continued in Northern Ireland despite the Good Friday Agreement and that IRA rules forbid the disclosure of it secrets by members, the ACLUM, said: “The forced turnover of interview materials will convert the interviewees and their interviewers into informants.....in the name of solving a 40-year-old murder, the Government risks subjecting multiple participants in the Belfast Project to the ultimate retaliation.”
ACLUM also raised concerns that the District Court’s denial of a motion to intervene filed by the two academics “will have a detrimental effect on the First Amendment activities of academics, as well as on others who gather information of legitimate public concern for dissemination to the public.” The ACLUM argues that it believe that “the academics who gathered that information under a pledge of confidentiality should be permitted to intervene and participate in the outcome of the case.”
ACLUM is also concerned that if the tapes are released, it may make it “more difficult for all those who hold confidential information about individuals -- an increasingly common event in the modern digital age -- to have a right to be heard in opposition to efforts by public or private parties to compel the disclosure of such information.”
Alluding to the dangers of the UK government seeking confidential archives outside its jurisdiction, ACLUM further raised concerns about the U.S. government’s argument that “governments who are parties to Mutual Law Assistance Treaties should have greater rights than United States federal and local law enforcement authorities to subpoena documents without judicial review.”
The ACLUM dismissed the Government’s argument that Moloney and McIntyre had undermined their claim of risk to their personal safety when they decided to publicize the fact that the subpoenas had been issued as “reminiscent of an argument that might have been made by Joseph K’s accusers in Kafka’s The Trial. A witness’s decision to fight the government’s behind-closed-doors decisions affecting the witness’s welfare is not grounds, in this country at least, to impeach the witness’s motives for applying to the court for relief.”
Calling police efforts over the past forty years to solve the murder at the center of the subpoenas - that of alleged British Army spy Jean McConville in 1972 - a “non-investigation”, while charting in detail police refusal to co-operate in inquiries into their own collusion with Loyalist death squads, the ACLUM raised the possibility that the real purpose of the subpoenas is to embarrass the Sinn Fein president, Gerry Adams who is alleged to have ordered Mrs McConville’s death. It added that the “PSNI/RUC’s self-inflicted wound, their sorry record of non-performance over more than 40 years, does not justify an invasion of academic freedom and the likely destruction of much of this valuable historic research.”
“Academic freedom should not pay the price for the constable’s incompetence. This saga of non-performance by the police does not justify a chilling invasion of the Belfast Project’s oral history efforts”.
The U.S. Government’s efforts to deny Moloney and McIntyre intervention in the case would, if applied to MLAT’s with other countries, deny US citizens the legal safeguards they enjoy at the hands of domestic law enforcement agencies, the ACLUM said, and prevent their intervention to challenge executive decisions in such controversial, bizarre and disturbing cases as:
- Russia’s prosecution of a dead man, Sergei Magnitsky, who died in prison after torture;
- The Chinese government’s prosecution of Nobel Prize winner, Liu Xiaobo;
- The arrests and prosecution of US non-governmental organizations by the Egyptian government;
- The justification of sexual harassment at work by a Russian judge on the grounds that otherwise “we would have no children”.
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