Saturday, May 5, 2012

Tweedle Dee and Tweedle Dum, Attorneys at Law

Boston College appellate brief, May 3, pg. 12:

"The assurances of confidentiality were documented when the interviews were concluded. 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."

Very same brief, pg. 7:

"Boston College was aware that Dolours Price herself had already disclosed her involvement in the Belfast Project and provided much of the information about her role in the IRA and the disappearances of individuals, including Jean McConville, in public interviews, which indicated that she was not seeking to protect the confidentiality of her Belfast Project interviews."

The "express condition" requiring direct permission for disclosure on one page becomes an implied waiver, inferred through vaguely sourced newspaper stories, on another. All interviewees were assured their interviews would be protected until and unless they contacted us and said not to protect them anymore, but then we read some stuff in a newspaper and so we guess this one interviewee gives up the confidentiality of her interviews.

If you enter into a contract with Boston College, they'll honor it. Until they feel some vague emanations from the ether, at which point they will perceive the institution to be released from its contractual obligations. We, like, saw this one news brief in the Sioux Falls Weekly Shopper that made us feel like we should tear up our agreement with you and do whatever was easiest for us. 

The institution should be obligated to wear these choices like a scarlet letter. They have no honor, and they make no sense.

Thursday, May 3, 2012

BC Files Appellate Brief in Belfast Project Case

Here's the brief Boston College filed today in its appeal of a portion of the Belfast Project subpoenas. I have limited time to write about this, because a dissertation is calling my name, but it seems to me there are some extremely strong arguments here. Unfortunately, those strong arguments appear alongside some tendentious and untenable representations of fact.

See especially the extraordinary footnote on pg. 7, which suggests that Dolours Price waived the confidentiality of her interview materials by speaking to a reporter about the murder of Jean McConville and about the fact that she had done interviews with academic researchers. Price's public statements, the brief argues, "indicated that she was not seeking to protect the confidentiality of her Belfast Project interviews." Boston College is claiming that human subjects can waive research confidentiality indirectly and informally, not just by directly and explicitly notifying researchers and archivists that they no longer wish to have research materials protected from disclosure. That's a hell of a claim, and you can expect to see it attacked by other academic researchers.
Bc Brief May 3 2012

Tuesday, May 1, 2012

Guessing Games

On Thursday, Boston College owes the First Circuit a brief that will lay out the basis for their appeal of the district court's order to turn over Belfast Project interview materials to the U.S. Attorney's Office in Boston. Because of some bad timing, the lawyers working on that brief are stuck with an unfortunate guessing game: The same court has already heard argument in another appeal regarding many of the same subpoenaed materials, but the court has not announced its decision in that case.

Remember that in its April hearing, the court brushed aside the government's efforts to limit the issues before the court, insisting that Assistant U.S. Attorney Barbara Healy Smith address a set of constitutional challenges raised against the subpoenas by the lawyers for Ed Moloney and Anthony McIntyre, BC's Belfast Project researchers. Asked if the First Amendment protects the confidentiality of academic research, Smith responded that there "is not a recognized privilege that would protect someone from giving evidence absent a strong countervailing interest -- constitutional, common-law, or statutory privilege."

That's the heart of the position that BC will need to attack if it wishes to kill any part of these subpoenas, and the university's lawyers have to frame their argument without knowing what the court thinks of a set of issues it has probably already considered.

It's possible that the court's decision in the appeal by Moloney and McIntyre wouldn't help BC figure out the landscape anyway, since one possibility is that the court simply concludes that the researchers don't have standing and so have no place in court to begin with. But the point is that BC doesn't know, and has to write and present an argument without knowing.

In other news, the court has not responded to an unusual exchange of letters between the U.S. Attorney's Office and the lawyers for Moloney and McIntyre. The government opened the exchange with a letter insisting that, contrary to claims made before the court, the researchers are in no danger at all from the disclosure of confidential interview material with the IRA over the murder of an informer. Eamonn Dornan, the principal lawyer for Moloney and McIntyre, had argued that the threat to the safety of the researchers and their families could be proven by the State Department's efforts to ensure the security of McIntyre's wife and children, who are U.S. citizens.

In response, Smith offered to prove that the State Department doesn't believe the subpoenas present any threat to McIntyre's family, and State and Justice are on the same page regarding the subpoenas. That claim is absolute nonsense, and will be easily disproved if a court opens the door to evidence, but the door is still closed.

Finally, a personal note. I owe the final draft of a dissertation in exactly two months, and will be grimly lashed to the thing day and night until then. Posting here will be light, though I'll still note major developments regarding the Boston College subpoenas.