“At the very least, there is negligence on the part of the researchers…”

Those involved in Boston College’s Northern Ireland archive continue to mutter about the motivations behind, and potential damage to future research from, the subpoena for their source material.  But as the Boston Globe report notes

However, Stephen Pope, a theology professor at BC, said the guarantee of confidentiality to interview subjects is at best, naive, and at worst, manipulative, especially when conducting research like the BC project that “has such grave significance for society.’’

“It’s important to get legal advice on what can and can’t be promised in good faith to the interviewees,’’ Pope said. “At the very least, there is negligence on the part of the researchers, from what I can tell.’’

The two researchers who conducted the interviews, who were under Moloney’s supervision, should have known that what their subjects told them could potentially be used in court, Pope said. The law does not recognize the authority of academics and journalists to keep information confidential, he said.

Keeping identities of interviewees closely guarded helped secure confidentiality, he said

John A. Neuenschwander, an emeritus professor of history at Carthage College in Wisconsin and author of “A Guide to Oral History and the Law,’’ said institutions and researchers have an obligation to defend confidentiality agreements, but they also should warn subjects that they may not override a subpoena.

“You need to alert people that you seal the interview for, that you may not be able to prevent it from being picked up by a subpoena and going to court,’’ Neuenschwander said.

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  • Alias

    The subtext of the state behaving in this way is to discourage any freelance (i.e. not controlled by the state) ‘truth recovery’ process about a sectarian murder campaign where the principle actors were state controlled. The intent is not to gather ‘evidence’ with a view to prosecuting Mr Adams for conspiracy to murder Ms Jean McConville but to ensure that anyone with such knowledge about the role of the ‘protected species’ in organising state-sponsored murder stays silent about it and other such crimes in future. There is no evidencial value to statements since they are not confessions of any sort. See Operation Taurus for a good example of the advantages of being a protected species.

  • Its hard to leave the north out of it but it should be left to one side. The argument is about the trust placed on those who promise full confidentiality when the truth is keeping such promises may not be up to them.

    I don’t think there is much doubt that people like Brendan Hughes believed that their interviews were fully covered. If that is threatened then, as much as I believe the murderers should face trial, then reluctantly, I also believe the holders of the tapes and files should destroy them. Handing the files/tapes etc over would betray the dead or put the living at risk. It might also put the well being of the interviewers, who presumably believed the cover was firm, at risk.

  • Banjaxed

    It’s amazing the difference in approach by the British authorities when it comes to wrong doing, the major difference being who actually committed the deed. Without in any way minimizing the death of Jean McConville and the other ‘Disappeareds’, it is interesting to note the alacrity with which British/NI authorities seem to be pursuing that lady’s regrettable murder with the total 70 year embargo on details of the Dr David Kelly inquest imposed by Lord Hutton without any legal precedent whatever. Of course, Dr Kelly was merely a weapons inspector who could have, once and for all, blew the lies of the Blair administration regarding WMDs and the causes of the Iraq war sky high, whereas Mrs McConville was an ordinary little woman in the wrong place at the wrong time. May they both rest in peace but their respective places in the hierarchy of suspicious deaths leaves me to wonder.

    Excellent article on the continuing stink on the circumstances of Dr Kelly’s death at the Mail’s website http://is.gd/RdlmEn

  • Henry94

    Pippakin

    I agree with you. If the promise has no legal validity then the only decent thing to do is destroy the statements, in defiance of a court order if necessary. Then take the consequences.

  • Henry94

    The thing is all three governments (American, British and Irish) knew what was happening and what had been promised. If they wanted to talk about subpoenas they should have done so then. This way the whole mess has a nasty whiff of entrapment about it. It makes no difference if the interviewees are not the ones charged its obvious the interviews would not have been granted if they had been aware of the possibility of files being handed to the ‘other side’.

  • Reader

    pippakin: If they wanted to talk about subpoenas they should have done so then. This way the whole mess has a nasty whiff of entrapment about it.
    It has nothing to do with the governments. This is a matter for the legal systems of the respective countries. If researchers want to talk people into incriminating themselves or others that is a matter between the researchers and their interviewees.

  • Reader

    Henry94: Then take the consequences.
    Accessory to murder. Umm, yes, that’s what they will do…

  • Alias, re what you post 14 May 2011 at 2:27 pm, are you suggesting that Mr Adams is a free state agent or a paid States agent, like an early Al Qaeda type mole, engaged to destabilise the British state from within, for a foreign master? You know, like Tony Blair was rewarded for doing, for his foreign masters, who may also have been Gerry’s?

    Indeed it could easily explain why the two of them got on so famously well to deliver what they delivered, and why now are they more content to stay out of the limelight as best that they can.

  • Banjaxed,

    Re Dr Kelly, was this posted and it would not disagree with your concerns and wonderment at the shenanigans of a crooked system which suffers from rotten leadership

    “How did this happen? Lord Hutton turned out to be a brilliant choice for the inquiry, not because of any lack of integrity, but because of an unworldliness that led him to give the Government the benefit of every doubt and the BBC of none.”

    Can we expect and are we to be subjected to a similar unworldliness from the Chilcot Inquiry board, or will they speak out loud and clear about how it is and was and should be with regard to the perps/main actors in the tragedy and disgraceful charade?

    And what everyone has learned would appear to suggest that Dr Kelly’s death to be certainly other than a suspected suicide and much more probably a first degree murder, which probably accounts for there being a 70 year embargo/gag on the post mortem evidence ……. for what other practical purpose does such an unprecedented move serve. It is surely most irregular but perfectly, despicably understandable in the above circumstances.

    http://www.independent.co.uk/opinion/commentators/christopher-bland-a-gross-media-manipulation-that-has-eroded-public-trust-in-government-2283896.html

  • Reader

    As I read your comment a little blue pig flew straight past my window.

  • joeCanuck

    I think that if the researchers destroyed the material subject to the subpoena, they would be in serious contempt of court and could expect severe consequences. It won’t be a week in the clink.

  • joe

    Tough, they should not make promises they cant keep. It is their responsibility to make sure the files remain closed.

  • Pete Baker

    pippakin

    “It is their responsibility to make sure the files remain closed.”

    You seem to be confusing the responsibilities of the organisers and interviewers collecting the source material with those who now hold that material.

    It seems clear from the reports that the organisers and interviewers understood the sleight of hand they were engaged in with the interviewees.

    The holders of the archive have other considerations.

  • Nunoftheabove

    Notwithstanding the issues the university may face if it contests the subpoena, could they and/or the researchers themselves not also conceivably be in difficulties regarding the withholding of evidence, perversion of the course of justice etc if the material contains information likely to clearly implicate particular individuals in crimes including murder that to date haven’t been shared with the relevant authorities ?

  • Pete Baker

    No, I’m not confusing anything. I’m saying it doesn’t matter. The interviews were given in good faith by people who believed what others told them. If there was any doubt then the holders of the files, who presumably knew what was going on, should have informed the interviewees separately.

    If the interviewees knew there was a risk that would make a difference but nothing else.

    You won’t be seeing David Cameron opening the files on Dr Kelly just because it was a previous government and he doesn’t feel bound by the order. It won’t make any difference what the US, the Irish or anyone else says. Obviously the cases are different. I mention Kelly because he is mentioned above, but the outcome is the same one block will be upheld another may not be.

  • USA

    Banjaxed,
    The article your linked was tabloid trash.

  • Banjaxed

    @USA
    I don’t wish to go off-topic as I was merely illustrating, in my posting, the differences in approach the British state was taking on the investigation of two deaths. But I have to say, USA, your response to the linked story was a classic exercise in automatic, knee-jerk reaction. Reminds me of a heckler screaming ‘Rubbish’ without listening to the words.
    A few counter-arguments might have helped.

  • Banjaxed

    @amanfromMars
    Yeah, read Bland’s article too. Excellent. However, the horse has bolted and the stable-lads have been silenced.

  • slappymcgroundout

    And some wonder why Big Gerry denies ever being in the PIRA.

    Lastly, before anyone gives an interview in the US:

    28 U.S.C. § 1782(a), in pertinent part:

    The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a foreign or international tribunal. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court.

  • AGlassOfHine

    I’m all for upholding the *rights* of dead terrorists over the course of natural justice……………….excuse me a moment,my last staement might meke more sense with another line of coke………