Boston College NI archive materials subpoenaed

There’s been an edited version published of two of the interviews held in Boston College’s Northern Ireland archive – which now also contains the Independent International Commission on Decommissioning (IICD) archive.  Now the New York Times reports that Boston College has received a supoena for the source material.

In exchange for candor, the people being interviewed were assured that the contents would remain sealed until they were dead.

Now, however, authorities in the United Kingdom want oral histories that were given to Boston College by two members of the Provisional Irish Republican Army for an investigation into murders and kidnappings committed nearly 40 years ago.

The materials were subpoenaed last week by federal prosecutors acting at the behest of British officials, Jack Dunn, a spokesman for the college, said on Thursday.

The NY Times report includes quotes from Boston College, Sinn Féin’s Rita O’Hare, and one of the interviewers, Anthony McIntyre.  But nothing from the “authorities in the United Kingdom”.  As the report admits

Boston College has not yet decided how it will respond to the subpoena, and college lawyers, in trying to learn more about who issued it and why, were told that a court order authorizing it was sealed, Mr. Dunn said.

And, as the report points out

The subpoena puts an uncomfortable light on oral history projects that may offer promises of extended confidentiality that they may find difficult to keep under legal pressure.

“This is our worst-case scenario,” said Mary Marshall Clark, the director of the oral history research office at Columbia University. Interviewers for Columbia projects advise the subjects that whatever they say is subject to release under court orders, like subpoenas, and require them to sign consent forms, Ms. Clark said. [added emphasis]

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  • Niall O’Dowd has entered the room.

    “now also contains the Independent International Commission on Decommissioning archive ”

    Pete, would the British and Irish governments each have a full copy of this archive? O’Dowd’s comments cast doubt on this.

  • Crubeen

    This is interesting! No doubt we shall now see an avalanche of subpoenas now … with first in the queue being certain individuals, not a million miles from this place, seeking the after action reports (if not the photos and the videos) of the SEAL team that terminated binLaden, with a view to prosecuting them for some offence or other … possibly careless flying of a helicopter, flying a helicopter that was not roadworthy, flying a helicopter without due care and attention, flying a helicopter whilst using a mobile phone or other telecommunication device, breaches of noise pollution regulations (unless the grenades and weapons were silenced) and unauthorised dumpinfg at sea.

    If these subpoenas are upheld I see endless possibilities.

  • Hardly surprising, murder really does not go away….

  • Crubeen

    Perhaps we should have had a Truth and Reconciliation process as a part of the whole.

    I read the thread in the link at the start of Pete’s blog – it predates my arrival here – and was somewhat saddened at the depth of hurt and whatever exhibited, in utmost sincerity and uberrimae fide.

    I lost friends and acquaintenances in the Troubles – too many to cite here but all of them, bar one only (whom I won’t name), innocent victims. There is heartbreak for too many – families (especially of the disappeared) who know not why or even when their loved ones died.

    If those involved remain silent they lack compassion; if they deny knowledge or involvement they lack integrity and if they are in public life they deserve to have their hypocrisy exposed.

    It was not just those who primed the bombs or who locked and loaded and fired who bear responsibility for what was done to this community. And even those of us who are innocent of criminality, terrorism or provoking or accepting it are perhaps just a tad guilty of not doing enough to stop it.

  • joeCanuck

    What a mess. Can people who gave oral statements get an injunction to stop the handover?

  • It is a mess, Joe. I should imagine that some folks didn’t fully appreciate the full consequences when they signed those consent forms.

  • Rory Carr

    I would have thought that the value of any such evidence, unless supported by sworn statements from those interviewees yet alive and amenable to cross-examination would be limited. Brendan Hughes is dead and therefore his testimony would count for naught and unless Delours Price were willing to back up whatever she may have said to the interviewer and then subject it to scrutiny, I cannot see what any British authorities may hope to gain in the way of assisting a prosecution of whomever.

    Whatever, it is certainly a sad day for historians.

  • Cynic2

    ” Brendan Hughes is dead and therefore his testimony would count for naught ”

    Not necessarily true.

  • granni trixie

    As an OTR presumably Rita OHare has a vested interest in keeping the stories undern wraps? (her relatives back here always deny that she was involved “in anything”).

  • Nunoftheabove

    Surely it’s inconceivable that they didn’t have the legal firewall nailed down before they kicked off ?

  • linesq

    Curious: has the subpoena been posted anywhere?

    I am in the US and generally before a subpoena will issue a court must have jurisdiction over an actual, existing case or there must be an active investigation by a Grand Jury.

    Boston College will probably move to quash the subpoena and this is likely to be ventilated in open federal court, unless under seal.

  • Zachariah Tiffins Foot

    It is astounding that anyone should argue that the interests of historians should be placed above those of the relatives of victims seeking redress through the criminal justice system.

    I applaud the authorities investigating serious crime: however old the incidents, no matter who the (alleged) perpetrators and using whatever resources available.

    Should this action lead to people being more circumspect with their reminiscences so be it. The pursuit of justice must always trump academic research.

  • Zig70

    Maybe the UK should just drop in with 3 helicopters, blow the b’jasus out of boston uni and take the material they want. After all they are responding to a terrorist threat to the state.

  • Henry94

    On the face of it there didn’t appear to be any legal basis for the promise of confidentiality. The statements were made on tape to researchers who came to Ireland. The thing to do would have been to involve a lawyer and establish a client-attorney relationship.

    To make statements which are realised after your death always seemed a bogus approach to me. Persons accused in such accounts are denied the right to confront their accuser. The possibility of lies and score-settling is too great.

    Justice for both victims and those accused would be best served by the success of this subpoena.

    We will also see what the people who initiated the study are made of. If they promised confidentiality their obligation is clear. If they are likely to lose in court they are must to destroy the statements and take the consequences.

  • joeCanuck

    The possibility of lies and score-settling is too great.

    Valid point, Henry, but, at the same time, any statements made would unlikely to be admissible in Court and so won’t be subject to examination. Therefore. they will always have to be taken with a large or small pinch of salt.
    They would likely not have been made at all if the “confessors” had thought that they would be made available before their deaths. So I would disagree with Zachary; their value lies in them being able to be examined by historians rather than having a probative value in Court.

  • Henry94

    Joe

    Their value won’t be a factor in the case. Either the promise of confidentiality has a legal basis or it does not. The statements will be admissible if the people who made them can be put on the stand now to defend them and to answer for any crimes they may have admitted to.

    Is there any basis for the concept of academic confidentiality? I don’t think it should apply here anyway. If someone has an allegation let them make it when we can test them on it. The beyond the grave concept is simply wrong.

  • Henry94

    What is morally wrong can not be academically right as Abraham O’Connell might say.

  • granni trixie

    It just occured to me that this Boston College issue may have relevance for PRONIs archives. I remember that around 1977/8 someone who worked for them had to leave with his family overnight. As the story goes, the IRA got it into their heads that he was passing on information deposited to the police (or the like) which had no foundation in fact. He was advised by his bosses to flee for his life and they helped him get another job in England. He then died at a youngish age which his family blame on the way he was treated. Another casualty of the troubles?

  • linesq

    the standard for admissibility of evidence is not the same as the standard for discoverability of evidence. under US code 28 section 1872 “Assistance to foreign and international tribunals and to litigants before such tribunals” the US federal court can issue a foreign government’s subpoena. But imagine this variation on the story: Saudi Arabia serves a subpoena on Harvard’s archive of recent taped conversations with Saudi women in which they provide details of rape, adultery, prostitution that occurred in Saudi involving themselves and others still in Saudi. The authorities there have some sort of “investigation”. Harvard promised the women confidentiality. In Saudia Arabia a woman who commits adultery may be punished by stoning or other horrors. Will the production of the tapes demanded in the subpoena be permitted?

  • Crubeen

    Joe,

    “Valid point, Henry, but, at the same time, any statements made would unlikely to be admissible in Court and so won’t be subject to examination. Therefore. they will always have to be taken with a large or small pinch of salt.”

    I’m not a lawyer but have researched various aspects of law over the years such that I have an understanding of some, at least, of its vagaries.

    Subject to various rules of court, either side to a case can introduce any evidence that they think is relevant, lawfully obtained and admissible. It is for the Tribunal of Fact (the Court sitting with/without a jury) to determine the facts of the case. Evidence is weighed and importance attached to it as is required by its content or Court rules. For example, until recently, a defendant could choose not to give sworn evidence on his own behalf and be cross-examined thereon. He could, instead, make a statement from the dock which was not sworn and could not be the subject of cross examination. A court will draw an inference from that and give due weight to his statement as against sworn evidence. The present law states that if a defendant declines to give sworn evidence that will justify an adverse inference. These statements are admissible but the weight to be accorded them will, to no litlle extent, be determined by corrobatory evidence and/or the statements, in Court, under oath of those who made them in the first place.

    Linesq.

    I doubt very much that statements by Saudi women (as your scenario paints it) would be subject to subpoena. Extradition law is broadly based on a premise that a person can only be extradited if the crime for which he is wanted is also a crime in the country from which extradition is sought. It is a criminal offence in the US to rape but it is not a criminal offence to be raped. Hence victims would be protected on this point and also on the rles of law regarding self-incrimination. In respect of the Boston archive prosecutors, it would seem, are seeking statements made by participants for investigations of crimes perpetrated by third parties..

  • joeCanuck

    Thanks Crubeen for that explanation.

  • linesq

    Well the law would seem to permit the “Saudi” subpoena not for purposes of extraditing a Saudi national now resident in the US, but solely for the purposes of discovery of information helping in an investigation in Saudi Arabia of individuals there potentially subject to criminal a prosecution punishment in that country for crimes unrecognized in the US. Nothing to do with extradition. This is information gathering, not the extradition of a witness or an accused. Quite similarly, the subpoena to Boston College seeks the tapes that will lead to admissible evidence (other living witnesses) in Northern Ireland itself. The point is this: will the US permit this in the Northern Irish context? Or are there circumstances that will be sufficient, if argued, to quash this subpoena. Cases in the US say the courts should not feel obliged to involve themselves in technical questions of foreign law relating to subject matter jurisdiction or admissibility of material sought, but may do so if departures from US concepts of due process and fairness are present.

  • Crubeen

    Linesq,

    I think you answered your own query about the Saudi subpoenas in your last sentence.

    In respect of the subpoena to Boston College, I note that its contents are apparently sealed but the reports seem to indicate that Gerry Adams is the subject of an enquiry into alleged criminal offences and that the authorities who have requested the archive wish to view it to assist in their enquiries. That’s as far as one should go lest anything written or said might prejudice the enquiry and/or any or all legal proceedings in respect of the subpoena,legal challenge to it or any criminal trial that may result.

    One point however is that it is highly irresponsible to suggest or advocate the destruction of this archive and were such destruction to take place, those responsible could be liable to criminal charges. In the UK there are few absolutes in respect of confidentiality especially where criminality is suspected or alleged.

    Of course if we had had a Truth and Reconciliation process where those responsible for violence, in return for acknowledging and admitting the same, would have received immunity for prosecution in respect of all admitted criminality, this situation might well not have arisen. Of course they would have been liable for prosecution in respect of any crimes not admitted. That would have brought closure to many bereaved families who have long wondered how and why (even when and where) their loved ones were killed and maimed.

  • linesq

    Sealed. Well that’s just peachy. But I doubt the Federal Court in the United States will hold entirely closed hearings on Boston College’s (no doubt upcoming) motion to quash. Watch that space.

  • Crubeen

    Linesq,

    If my memory has not altogether faded I recall reading, many years ago, that to avoid the dead hand of the statute of limitations, Internal Revenue agents went before a Federal Grand Jury and got a secret indictment for tax evasion against one Alphone Capone, a reputed ganster and ultimately proven evader of federal income tax. Of course that indictment did go to public trial in due course as, hopefully, this one will and I’m not going to second guess the outcome..

    Many cases in the UK are held ‘in camera’ – look at the family courts and the Court of Protection if you doubt that. I don’t favour secret trials – justice has not only to be done but to be seen to be done. Should we lobby “Wee Davy” to get the family courts here, as in the rest of the UK, open to scutiny by the media. I think many people would be aghast at what goes on in those courts and that really should be of more concern than the historical enquiries into alleged terrorist crime.

  • oracle

    This situation has arisen due to basic failings in understanding between the commissioners of the pieces involved (Boston College) and the project manager (Ed Maloney)

    The interviewees who thought their words would not be aired until after their death protecting them from prosecution were lulled into giving interviews in the mistaken belief that the interviews were in safe keeping, in such a situation the trust in the immediate researcher and project manager is vital.

    There was also to a lesser extent an error of judgement by the researchers who gave their word and put their kudos and reputation for trust on the line in respect of a promise that was now in the hands of others who may, or may not have the same resolve or commitment as themselves.

    The project manager, normally an academic writer or journalist will contract out the research for specific interviews. This is normally done because the project manager lacks a specific contact or rapport with a particular individual interviewee or grouping.

    The project manager who is the chief benefactor of the research should never hand over audio or signed statements from any of the interviewees as it breaks the bond agreed between the immediate researcher on the ground and the interviewee.

    The project manager in this case an experienced journalist of many years was extremely remiss in his duties by handing over actual audio tapes to what was in effect a public library, and even more fool hardy to expect them to have immunity from legal searches by authoritive bodies.

    This problem would not have arisen if Boston College had been given unsigned transcripts of the interviews which would have been useless in court and then only supplying the actual audio video tapes which could be held in a private safe somewhere after the demise of the interviewee as promised, thus avoiding any possibility of a legal challenge and protecting the reputation of the researcher.

  • linesq

    Crubeen – I am not sure that destruction of the archive, pending the determination of the subpoena, is criminal obstruction. It could be contempt of court, but not likely criminal obstruction. That is because the data is in a US jurisdiction and US federal law while criminalizing destruction of evidence (spoliation of evidence, witness tampering etc) can do so only when the intent is to hamper and obstruct a US federal investigation. There is no such federal investigation here that provides any authority for the subpoena – this subpoena is from a foreign government. The court here does have the power to quash it. There are certainly instances when federal courts have not honored foreign subpoenas. I think there are good legal arguments here to fend off the subpoena, whether they are offered and whether they prevail only time will tell. (I am in the US).

  • linesq

    I stand and correct myself: a US subpoena hearing could squeak in and be sufficient to trigger criminal obstruction under federal law. (I just reviewed it), and it is in any event not to be encouraged. Better to make the legal due process arguments.

  • Crubeen

    Linesq,
    Thanks for that last post … I had read the first and was already forming a riposte when you so fairly corrected yourself … it takes a decent person to do that. As I said I’m not a lawyer, just one who has an interest in aspects of law and, of course, whilst you have an interest in one specific area you can’t quite resist looking at others.

  • linesq

    Well, I confess I am a lawyer, but human nevertheless! I take your point about the family courts and their horrors. The theory on closed hearings may be more to do with the interests of children which is always meant to be paramount in such matters. I also agree that there may be better, more pressing issues to be engaging with in terms of exposure than the memories held by the Boston College archive and their dubious potential to lead to admissible evidence in an actual case.
    Regarding the Al Capone indictment – over here an Indictment is the result of a successful grand jury investigation – and grand juries are always, absolutely secret while they are in session. Upon request from the prosecutor a court may order the Indictment sealed until the arrest of the accused or for other good cause.