Boston College files motion to quash subpoena

According to the New York Times report, Boston College has filed a motion to quash the federal subpoena seeking access to their Northern Ireland archive.  Their reported argument is worth noting.  From the New York Times report

Lawyers for Boston College argue that releasing the interviews would break the I.R.A.’s “code of silence” and could lead to “punishment by death,” according to the filing.

“Our position is that the premature release of the tapes could threaten the safety of the participants, the enterprise of oral history, and the ongoing peace and reconciliation process in Northern Ireland,” Jack Dunn, a spokesman for Boston College, said in a statement.

A spokeswoman for the United States Attorney’s office, which filed the subpoena on behalf of the British authorities, would not comment on the case. The subpoenas summoned interviews from two members of the Provisional Irish Republican Army, Dolours Price and Brendan Hughes, a commander who died in 2008. They accused Gerry Adams, the president of Sinn Fein, of running a secret kidnapping ring. Part of Ms. Price’s interview was used in a documentary, “Voices from the Grave.”

Anthony McIntyre, a journalist, academic and former I.R.A. member who interviewed Ms. Price, said the home next to his was smeared with excrement after “Voices from the Grave” was released, and the media reported death threats were made against him.

Mr. McIntyre said in an affidavit, “I am of the view that the more the Belfast Project interviews reveal about how deeply matters of the I.R.A. were discussed, the greater the danger that I, as the primary researcher, will face.”

Hmmm…

Update  Kevin Cullen’s Boston Globe article has some added detail

In their filings, BC lawyers express frustration over the vagueness of the subpoenas. The court order authorizing them is sealed, and the British agency requesting them unknown. Jeffrey Swope, of the Boston firm Edwards Angell Palmer & Dodge, asked the court to either quash the subpoenas or at least let BC have “access to the documents that describe the purposes of the investigation to enable them to specify with more particularity in what ways the subpoenas are overbroad.’’

Thomas E. Hachey, University professor of history at BC and executive director of the college’s Center for Irish Programs, said in an affidavit that he suspects police in Northern Ireland are seeking the records.

“The fact that these materials are sought by governmental authorities, believed to be the Police Service of Northern Ireland, will almost certainly create needless alarm among otherwise peacefully-reconciled individuals and risks stoking unrest among combative elements of that society who would like nothing more than to see the embers of division fanned into the flames that would consume the hopes of those who seek reconciliation, rather than recrimination,’’ Hachey wrote.

BC lawyers said Hachey “was recently warned by the United States consul general in Belfast not to come to Belfast for a previously planned celebration of Boston College’s contribution to the peace process because of reactions to the possible release of materials from the Belfast Project.’’

And,

The subpoenas demand original tape recordings, “any and all written documents,’’ and notes and computer records connected to interviews with Hughes and Price.

BC said it had already turned over recordings and transcripts of Hughes “because the conditions pertaining to the confidentiality of his interviews had terminated with his death.’’ But BC lawyers dismiss the demand for other records as a “classic fishing expedition’’ that threatened academic freedom and, in some cases, personal safety.

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  • andnowwhat

    ?

  • pippakin

    I don’t give a monkeys about the IRAs code of silence they are not the Cosa Nostra, or perhaps they are…

    The interviews were given in good faith and the terms were known to everyone including the British and American governments. Its deceitful and underhanded to attempt to gain access to the interviews now. I hope Boston College wins the case.

  • Alias

    It’s essentially the same argument that Suzanne Breen used to secure her recent landmark victory (and one that was advised by an, ahem, unnamed, poster on Slugger before she used it), i.e., that providing the information would endanger her safety, thereby compromising her right to life. I don’t see the public interest part above having any effect since it involves a foreign jurisdiction. There are no federal laws protecting source in the US but some sates do have s-called ‘shield laws.’ As it would ultimately end up in the Supreme Court, it’s unlikely that the US government – mainly its security agencies – would welcome the precedent, so it’s more likely to be the case that whatever support the US government has given thus far will be withdrawn. So it’s probably a ‘can of worms’ defence that it aimed politically rather than legally.

  • andnowwhat

    Well said Pippa.

    There’s a hunger for truth and this sort of action will kill any chance of that hunger being satisfied if it is successful.

    If anything, what they did in Boston should be replicated.

  • pippakin

    andnowwhat

    Thanks, I’m trying to keep comments below 200 so I hope I can keep my mouth shut for the rest of this thread… but the subject had been raised on Slugger before and I feel strongly about it, so…

  • Mainland Ulsterman

    If the files are released, these ex-IRA people may be right in claiming they were misled into telling the truth. But my sympathy is limited, given that they should have told the truth anyway. Their vows of omerta to each other should not be binding on them, let alone the rest of us, given the huge and obvious public interest in the truth about the Troubles coming out.

    As for the safety of interviewers, I sympathise as an interviewer myself who uses and respects the confidentiality of my interviewees, but (1) in my field of social and market research at least, I have an overriding duty to report admissions of criminality if I come across them; and (2) I don’t think people involved in serious crime have the moral right to expect interviewers to protect them.

    If these people are attacking or threatening McIntyre, the response should be for us (through the police) to get after the people doing the attacking and to protect McIntyre, but it’s not a reason to suppress the truth. We should get Wikileaks on their ass – this stuff has to come out.

    People have been starved of the truth about the murky goings-on inside the Republican Movement. It now sits in government. It’s about time we knew the truth of what has really gone on. Were this any other political party, there would be unanimity on the need to make this stuff public. But because they have deeply entrenched terrorist links, we let them off. It is kind of nonsensical.

  • Lionel Hutz

    I agree Pippakin. As much as I would like to know what’s in these archives, I’m willing to sacrifice knowing less so that my grandchildren can know more!

  • Cynic2

    That can presumably be managed by the British offering witness protection to those interviewed and Mr McIntyre

  • Mainland Ulsterman

    andnowwhat,
    But what is the point of these people confessing the truth if ordinary people aren’t allowed to know about it? What is the overriding interest in favour of keeping it secret?

    I understand the interests of journalists in protecting their safety. But if they are finding out about criminal behaviour by current political leaders, it is absurd that they would not report this in the public interest.

  • andnowwhat

    MU

    I would point you to what Lional Hutz said.

    My generation and the one before are done and dusted and variously damaged goods to varying levels.

    There’s a new “war” now,to hand something better on to our children. That war is the ultimate civil war. It does involve one religion fighting another, neighbour against neighbour nor brother against brother. It’s an internal war of each individual self fighting the voices of immediate gratification for the historical and thus societal good.

    We all know many of the hidden truths but we tend to hide from those that challenge our core beliefs. A passive bigotry perehaps

  • Pete Baker

    Update Kevin Cullen’s Boston Globe article has some added detail

    In their filings, BC lawyers express frustration over the vagueness of the subpoenas. The court order authorizing them is sealed, and the British agency requesting them unknown. Jeffrey Swope, of the Boston firm Edwards Angell Palmer & Dodge, asked the court to either quash the subpoenas or at least let BC have “access to the documents that describe the purposes of the investigation to enable them to specify with more particularity in what ways the subpoenas are overbroad.’’

    Thomas E. Hachey, University professor of history at BC and executive director of the college’s Center for Irish Programs, said in an affidavit that he suspects police in Northern Ireland are seeking the records.

    “The fact that these materials are sought by governmental authorities, believed to be the Police Service of Northern Ireland, will almost certainly create needless alarm among otherwise peacefully-reconciled individuals and risks stoking unrest among combative elements of that society who would like nothing more than to see the embers of division fanned into the flames that would consume the hopes of those who seek reconciliation, rather than recrimination,’’ Hachey wrote.

    BC lawyers said Hachey “was recently warned by the United States consul general in Belfast not to come to Belfast for a previously planned celebration of Boston College’s contribution to the peace process because of reactions to the possible release of materials from the Belfast Project.’’

    And,

    The subpoenas demand original tape recordings, “any and all written documents,’’ and notes and computer records connected to interviews with Hughes and Price.

    BC said it had already turned over recordings and transcripts of Hughes “because the conditions pertaining to the confidentiality of his interviews had terminated with his death.’’ But BC lawyers dismiss the demand for other records as a “classic fishing expedition’’ that threatened academic freedom and, in some cases, personal safety.

  • Reader

    Pippakin: The interviews were given in good faith and the terms were known to everyone including the British and American governments.
    Neither government has any responsibility to prop up someone else’s unwise commitments. And the legal system has no obligation to indulge historical projects – can you not imagine where that might go?
    Even the legal fight back against the subpoena is based on much more realistic grounds.

  • Mainland Ulsterman

    andnowwhat,
    But if it were David Cameron who had been involved in a kidnapping ring – and people knew about it in 2011 – our grandkids would not thank us for suppressing the information surely? Would they not ask, what if people had known the truth, would they have voted for him? (You would hope not).

    We will bequeath a poisoned future to our grandkids, if we don’t deal with the uncomfortable truths of the Troubles now. Plus, quite simply, after all we went through because of these fools, the people of Northern Ireland who were there have a right to know. It is the least the perpetrators can do for us.

    I was largely unaffected by the Troubles, by NI standards, but even with me, the decisions made by the Republican Movement determined, for starters, where I and my brothers went to school and where we lived (we moved out of North Belfast following a bomb going off in our road). Relatives of their victims obviously have a lot more questions they need answered than I do. But we all have a hunger and a right to know everything possible about the terror campaign – who was giving the orders, what they did when and why. Especially in the context of demands from the terrorists themselves and others for disclosure of the details of anti-terror operations by the security forces.

  • Alias

    MU, the action by the security services to gain access to the archive doesn’t have the purpose of releasing the contents of the archive to the public, so it isn’t valid to claim that the public would be denied access if the action failed.

    I’d be very surprised if the security services had not already gained covert access to the archive, so I suspect that the action has the ulterior purpose of discouraging similiar ‘uncontrolled’ comment by disenfranchised members of the ‘republican’ movement rather than encouraging it. The obvious outcome is that the college will destroy the tapes if it looks likely that a court demands that they hand them over.

    As the UK court found, Ms Breen had a right to life under the European Convention on Human Rights that would be violated if she was compelled by the Court to engage in an action where a real risk to her life would exist as a result of that action. It is not clear how a US court would involve itself in ‘right to life’ issues of a foreign citizen (assuming McIntyre doesn’t have an American passport as his wife does) or could be assured that a foreign state would provide satisfactory protection if a court determined that such a risk to life existed or would be created by its ruling or that it had any obligation or relevance. A US court has no duty to the consider the ‘public interest’ of a foreign jurisdiction, so that won’t have any relevance.

    [Dolours] Price would doubtless tell a tale or two about her role in ‘disappearing’ people and about the person who directed her activities (Gerry Adams) but these people won’t say anything that might see them being held to account for their crimes.

    The state has granted immunity for those ‘republicans’ who support the process, but it is the ones who are no longer loyal to PIRA or bound by its codes who could tell the tales. However, the state has ensured their silence by not granting them the immunity that it grants to the ones duly silenced the ‘omerta.’

    Keeping mouths shut seems to be the real game…

  • Mainland Ulsterman

    Prof. Hachey’s quote is priceless, thanks Pete Baker:
    “will almost certainly create needless alarm among otherwise peacefully-reconciled individuals and risks stoking unrest among combative elements of that society who would like nothing more than to see the embers of division fanned into the flames that would consume the hopes of those who seek reconciliation, rather than recrimination”.

    I see – so anyone seeking the truth about what former terrorists did is threatening peace and fanning the embers of division? While those seeking to suppress the details of atrocities are on the side of the angels?!

    While terrorists might be “peacefully-reconciled”, it’s not with their targets – it’s with themselves. Surely as an academic institution, BC is on the side of research to elucidate and understand the full facts? Otherwise, it seems a shaky basis for a reconciliation and possibly why it signally hasn’t actually happened yet.

    Or is BC, like many academic institutions, somewhat disdainful of the right of the wider public to be let in on the murky truths? Perhaps only an academic elite can be trusted with that kind of level of truth …! Comedy.

  • andnowwhat

    MU

    I have a horrible feeling that many of the victims will be shocked at the truth. Check out Malcolm’s thread over on P.ie’s NI section.

    The actions of the security forces, both actively and by omission, relating to violence perpetrated on both unionists and members of the security forces here could well be something people are better not knowing for the sake of a scalp or 2.

    There’s a massive difference between the genuine wishes of victims and their relatives to know the truth and the political opportunists who refuse to look at the panorama of our history openly

  • Mainland Ulsterman

    Alias,
    The Breen decision seemed a bizarre one on several levels – and seems to give an ‘out’ to anyone threatened outside court to following the orders of a court. To me that’s an undermining of the courts’ authority and a subverting of the public interest.

    But be that as it may, I was arguing for the materials to be made public, not saying it is the police’s job to do so. Ideally former IRA people themselves should step up to the plate and come clean, but if they chicken out then anyone else privy to such information should release it to the NI public, as long as it does not hamper current anti-terror operations (and that exception should be as narrowly defined as possible).

  • Mainland Ulsterman

    andnowwhat,
    As with Savile, I take the view it’s better it all comes out – including police failures.

    I’m sure there would be shocks but reasonable people did not expect perfection from the police anyway in the context they were operating. Many nationalists have already decided the worst about the RUC. The full truth coming out – about what they faced as well as how they dealt with it – can only strengthen the RUC’s reputation overall. If they did wrong then we should know about it.

    I just don’t buy the “greater good” argument as a reason to suppress the facts. Indeed, isn’t this a big reason why journalists are valued in the first place – getting the truth out there, good or bad?

  • PaulT

    But ‘Voices from the Grave’ proved a bit disappointing, is ‘Voices from the Grave 2’ due out, if so, this is great marketing, otherwise I’d say release the interviews.

    Considering some of the claims made by these individuals I think the fear is more the fact that they may have to back up their interviews with a bit of detail.

    Surely this ‘code of silence’ was broken when the interviews were given, its public knowledge the interviews happened and the IRA did nothing.

    I personally would find it amazingly interesting to hear someone actually provide proof in a legal framework that Adams was in the IRA.

    Surely I’m not the only one to raise an eyebrow regarding someone throwing poo at a house being given as an example of why the IRA are scary

    Publise and be Damned, those who want to can record their own stories in private and instruct family of a solicitor to release it following their death.

    All in all, I think its a silly Volunteer who spills the beans or its a sly one who plants a few tall stories.

  • Cynic2

    But how can the IRA threaten them. Having lost the war, it has gone away, hasn’t it? It is a non-terrorist organisation. Gerry could even be subpoenaed to prove that or they could use as evidence film of his many utterances on the subject.

    Don’t Boston College know that?

    Surely all those who were interviewed might expect now is a bit of a cold shoulder down the Armalite and Ballot Box.

    And as fro the threats to the Director of Boston College, from what source could those possibly have come.

  • Mainland Ulsterman

    I can’t agree with Cynic2 more. The gun is supposedly no longer part of Irish politics. Yet effectively, Boston College is allowing the threats of a few thugs to dictate what truth about the Troubles the public is entitled to hear. Isn’t it time we all got together and faced them down?

  • oracle

    Bit late now for Boston College to suddenly develop a sense of remorse for failing to protect the reputation of its researchers.
    If it hadn’t bothered its arse to safeguard the material against premature publication or arrived at this situation through amateurish negligence by the managers of the project then an open and transparent statement attributing blame for this debacle must be presented forthwith.

    Don’t go blaming the big bad Brits for your own callous stupidity!

  • Mainland Ulsterman. The fault that lies with the RUC for nationalists is that the ‘few bad apples’ [as their unionist politicians and fellow travellers like to talk about], were promoted to the highest ranks in the force and encouraged. Successive Chief constables are to blame for that. The reputation of the RUC for bigotry is well deserved which the British govrt admitted by sending Patten in to kill it off.

  • Cynic2

    Oh come on Madraj55 …..who were they? Where is the evidence?

  • As has already been said, this is another example of the type of intimidation which goes on nowadays, when holding a bit of paper gets you banged up for life.

    It is almost farcical, as it seems only the participants in the long war who signed up to the GFA, whatever side they took, are to be allowed to write their history without sanction.

  • cynic2 You don’t even have to look for evidence, just note that the British govt sent Chris Patten with a remit to reform root and branch, and he wouldn’t have got involved in a cosmetic exrecise. there were enough evidence that he saw, which isn’t available to the public, to warrant the deep changes he made.

  • Mainland Ulsterman

    madraj55,
    Hardly evidence for what you claim. If you read Patten he was fulsome in his praise for the work of the RUC. But we needed institutions that could command the support of both communities and Patten concluded that, rightly or wrongly, the RUC didn’t command overwhelming support from nationalists. I would argue that those nationalists lacked circumspection and objectivity in many of their judgements about the RUC – but it’s kind of irrelevant, because if they didn’t like it, it was going to go.

    The force had to be rebranded to help get around this. As such I was fairly relaxed about it myself. The only danger was that some people would take it as a criticism of the RUC, which you have – and that is unfortunate but doesn’t actually change the historic record.

    Many people, unionist and nationalist, are only alive today because of the RUC’s thankless and unremitting work against terrorists. They were imperfect, but it’s hard to imagine any police force anywhere else in the world doing a better job as the Troubles set in, after the initial disarray of 1969-70. Theirs is overwhelmingly a story of courage and humanity. The demonising of them has been largely self-serving – driven by those shielding perpetrators of humanitarian atrocities from justice and by those opposed to pre-GFA Northern Ireland institutions on the basis that the NI state was in their eyes not legitimate. Not much the police could do about that perception (now recognised by all parties in the GFA as unfounded) – they had to get on with policing.