Mutual legal assistance, Boston College, and tales from the Troubles

For those who teach international criminal law, the topic of mutual legal assistance typically receives only brief mention given the myriad of other topics vying for class attention, including extradition. However, an interesting case study is brewing in Boston, which raises broader issues for class discussion concerning accountability and the fight against impunity, post-conflict reconciliation, and how we “put history on record” as well as issues regarding how we who work within universities operate. For common law lawyers, it also provokes a dusting off of one’s knowledge of the old Wigmore categories for invoking privilege against disclosure.

The case of interest is that concerning Boston College, a private Jesuit university in Boston, Massachusetts, which we now know holds within its Burns Library certain transcripts and recordings of interviews conducted with former paramilitaries about their activities during the decades-long conflict in Northern Ireland known as the Troubles. Following a judgment of the United States Court of Appeals for the First Circuit, released on 6 July 2012, some of these records were scheduled for production this month, but it appears that appeals are being pursued.

The request for the disclosure of the interviews comes from the Police Service of Northern Ireland (PSNI) via a mutual legal assistance request made pursuant to the mutual legal assistance treaty (or “MLAT”) that exists between the United States and the United Kingdom that provides for cooperation in the investigation and prosecution of crime. The assistance that can be provided under the US-UK MLAT includes the provision of “documents, records and evidence.” The US-UK MLAT was signed in 1994 and entered into force in 1996, with modifications by the US-EU MLAT in 2003. And for those interested in the national application of international law, both MLATs are considered self-executing treaties under US law, and thus part of US law.

As for why a university library in the United States has records now wanted by the Northern Irish police, the interviews were collected as part of an oral history project to develop a resource for studying the Northern Ireland conflict. Under the terms of the project, former paramilitaries from both sides agreed to give open and frank accounts of what they did on the understanding that the material would only be released with their consent or after their deaths. From these efforts has resulted a “unique paramilitary archive” safely ensconced in a university library located outside the jurisdiction. In the words of the US Court of Appeals for the First Circuit (at pages 6-7): “Although the interviews were originally going to be stored in Belfast, Northern Ireland, as well as Boston, the Project leadership ultimately decided that the interviews could only be safely stored in the United States. They were eventually stored in the “Treasure Room” of the Burns Library, with extremely limited access.”

The Belfast Project at Boston College was not, however, a typical university research project. This project was not initiated by a professor or college employee, tenured or otherwise, but by the Irish journalist and author Ed Moloney. Moloney entered into an agreement in 2001 with the head of Boston College’s Burns Library to house what was then an envisioned collection of recorded interviews with former paramilitaries about their activities during the Troubles. Interviews were then conducted from 2001-2006 on the basis of a promise of confidentiality for both the interview and the interviewee, to last until the interviewee’s death. Moloney, as the director of the project, hired a number of individuals to conduct the interviews, including former IRA volunteer Anthony McIntyre, who earned a PhD post-prison and whose IRA connection presumably facilitated access. The promise of confidentiality, as well as the assignment of ownership in the recordings and associated materials to the Trustees of Boston College, were viewed as steps taken to protect those involved (taking into account the IRA’s code of silence and the possibility of retribution against those who grass). Confidentiality also encouraged candour in putting together an insiders’ chronicle of the history of the Troubles.

But confidentiality also meant that none of us were meant to know about Boston College’s potential cache of recorded confessions and disclosures until the time was right. To view this from another perspective, the library’s records may contain information that might bring some kind of peace to the bereaved families that still wait to know, as well as providing assistance with several unsolved cases. For all we know, the interview records might contain information to assist the work of the Independent Commission for the Location of Victims Remains.

The Price Interviews

However, in February 2010, confidentiality was breached, and breached by one of the project’s own interviewees, who let it be known to a Northern Irish newspaper that she had disclosed her involvement in an unsolved crime as part of a history project involving a Boston-area university.

That interviewee was none other than Delours Price, a former member of the IRA and critic of Sinn Féin, who with her sister Marian Price and others, had been convicted of the bombing of London’s Old Bailey courthouse in 1973. As for the unsolved crime, Price disclosed that she had been involved in the 1972 disappearance of Belfast mother of ten, Jean McConville, who was killed by the IRA as a suspected informant. (For a listing of the 16 people who “disappeared” during the Troubles, see here.) McConville’s body was found in 2003, but the matter of who ordered her killing remains unsolved. Whether or not Delours Price made such disclosures to Anthony McIntyre for the Boston College project is disputed, but the media coverage has prompted the United Kingdom, on behalf of the Police Service of Northern Ireland, to seek the assistance of the US Attorney General under the terms of the US-UK MLAT to secure the disclosure of all recordings concerning Delours Price held in confidence by Boston College, in hope of securing evidence in relation to the abduction and death of Jean McConville.

The Hughes Interviews

The British authorities are also aware that others have been interviewed for the Boston College oral history project, including IRA commander Brendan “The Dark” Hughes. It was Moloney that disclosed the existence of the interviews with Hughes when, after Hughes’ death and with the death of loyalist paramilitary David Ervine, Moloney published his book Voices from the Grave: Two Men’s War in Ireland, based on material that had been gathered for the Boston College project. The book’s frontispiece, readily available via Google books, acknowledges “Use of interview material by kind permission of The Boston College Irish Center’s Oral History Archive” and shows copyright in the interview material resting with the Trustees of Boston College. The book’s preface opens with the following: “This book represents the inaugural volume of a planned series of publications drawn from the Boston College Oral History Archive on the Troubles in Northern Ireland. The transcripts of interviews with Irish Republican Army and Ulster Volunteer Force veterans, most of whom were operationally active, are housed at the University’s Burns Library and are subject to prescriptive limitations governing access. Boston College is contractually committed to sequestering the taped transcriptions unless otherwise given a full release, in writing, by the interviewees, or until the demise of the latter.” As a result, the UK has made an MLAT request for the Hughes records, and for access to other Boston College interviews as part of an investigation into kidnappings and murders during the Troubles.

The Challenges

Pursuant to the US-UK MLAT arrangement, subpoenas were issued in May and August 2011 for certain recordings and associated documentation held by Boston College. Boston College initially responded by challenging the subpoenas as threats to academic freedom that would have a chilling effect on oral history research (although it did turn over the Hughes material, since his death had brought an end to confidentiality). In early 2012, Judge William Young of the US District Court denied the motions to quash the subpoenas, with Boston College opting not to appeal the ruling relating to the Price interviews, but the case continues concerning the release of other interviews. As for Moloney and McIntrye, they have sought to make their own claims, invoking their First and Fifth Amendment rights, and claiming that the US Attorney General is acting in breach of the law. They have also argued that disclosure could hurt the Northern Ireland peace process and put lives in danger, including McIntyre’s.

Some have pitched this case as a battle for academic freedom, charging Boston College with institutional cowardice and praising the efforts of the local branch of the ACLU to intervene to protect the interests of academics everywhere. (See here.) Others worry about the future for oral history projects, with historians needing ways to gain the trust of those they interview to secure candid results. Critics, however, note that the Boston College project was not initiated by an academic, but by a journalist and author who, with the librarian, tried to use contract law to ensure that an intended collection of interviews conducted in Northern Ireland were housed on a confidential basis outside the jurisdiction. Boston College’s Center for Irish Programs has acknowledged an association with the project, with the Center’s Executive Director having “met periodically in Belfast with the former IRA/UVF university-trained men who conducted the interviews with paramilitary veterans from opposing sides,” but the project’s terms were agreed without the Center’s involvement. And it is the deliberate nature of this arrangement that begs the question why. Would a safety deposit box in Belfast or Dublin have sufficed? Why not a university within the UK or Ireland if an academic connection was needed? Or does the answer lie with the First Amendment to the US Constitution as providing support for a journalistic (and academician’s) privilege against disclosure?

As for the impact on university research, it must be noted that university research projects involving human participants usually require university ethics approval as well as consent forms that make it clear that court orders can override promises of confidentiality. As explained in an ethics primer for oral historians working in Britain and Northern Ireland, interviewees who are likely to provide information about criminal activities should be made aware that it may have to be disclosed to investigating police, even if access for everyone else has been restricted. University researchers can only guarantee confidentiality to the extent the law allows, with the US Court of Appeals for the First Circuit expressly noting that the “donation agreements” signed by Hughes and Price, assigning ownership to the Trustees of Boston College, do not contain “to the extent American law allows” language.

As for the law, courts have rejected any notion of a generalized reporter’s privilege for confidential sources, whether by virtue of the First Amendment or common law privilege. As explained by the US Supreme Court back in 1972, and cited by the US Court of Appeals, “agreements to conceal information relevant to commission of crime have very little to recommend them from the standpoint of public policy,” and as Wigmore has explained, “no pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice.” Despite the benefits offered by the reciprocity of its obligations, the US-UK MLAT has been portrayed as a treaty that enables a foreign power to compel Americans to produce confidential information for prosecutions abroad, with a copy of the ACLU’s amicus brief found here. However, the very text of the MLAT makes clear that it “shall not give rise to a right on the part of any private person to obtain, suppress, or exclude any evidence.”

There is also the matter of where we choose to house our documentation of the past and whether the location of records outside the place of conflict best serves the goals of post-conflict reconciliation and learning from the past. Notably, this is a discussion that has arisen elsewhere within the field of international criminal justice, as international tribunals wind up their work and discuss where to leave their archives and under what terms.

As for moving on?

In its final report, (at paragraph 49(c) on page 15), the Independent International Commission on Decommissioning, which oversaw the disarming of the IRA and other paramilitary groups in Northern Ireland, embraced the view that: “… peace in Northern Ireland … means that however reprehensible some acts are that were committed in the past, at some point a line needs to be drawn under them – never to forget, but to be able to move on. For many, and particularly for those who have suffered loss or grievous injury in the past, accepting this conclusion may be very difficult. For some it may be impossible and it may even take generations – but it is, we believe, a worthwhile goal.” Clearly there are those who disagree, with the Police Service of Northern Ireland continuing its investigations into unsolved cases.

As for Boston College, its Burns Library archive has since gained another set of records arising from the Troubles, namely the records of the Decommissioning Commission itself, although the Irish Minister for Justice and Equality has emphasized that only material of a more general nature has been deposited with Boston College, with the more sensitive information on the quantity of arms being deposited with the US State Department. Much of the work of the Decommissioning Commission was conducted in secret due to the sensitivities of getting the IRA and others to disarm, and pursuant to British and Irish law, (not contracts), the records of the Decommissioning Commission are inviolable for 30 years, absent a ministerial waiver. UK law also accords the Commission’s records with the status of archives of a diplomatic mission under the 1961 Vienna Convention on Diplomatic Immunities.

For those who do wish to include the Boston College case within an international criminal law course, a website following the case can be found here and excerpts from the CNN documentary on the “Secrets of the Belfast Project” can be found here. Coincidently, two university researchers in Canada have recently argued for an academic research privilege concerning confidential interviews conducted with a porn star who has since been charged with the killing and dismembering of another.