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

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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.


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Ed Moloney says

September 28, 2012

I wish to lodge a protest with this website in the strongest possible terms. Your article contains a number of key inaccuracies which could have been corrected or at least challenged had you bothered to contact me, Ed Moloney, the director of the Belfast Project which is the subject of your article. You clearly have had access to my blog and your article is dotted with my name (but none from Boston College), yet you did not even bother to contact me to check some important facts. Instead you took as gospel the account of Boston College in this affair despite the fact that this college has a strong motivation to launder the truth in its own self-interest.

This is a story of many things but essentially it is a tale of gross academic funk, of a college abandoning a research project that it had initiated and funded, which it boasted about and which it used as a basis to become an important archive for other documents from the Troubles in Northern Ireland. It is a story of a college that has thrown its research subjects to the wolves and denigrated those in Belfast who worked on its behalf. Had you done the most elemental research you would have been aware of this controversy surrounding the project and the subsequent subpoenas and that ought have sent you in the search for balancing inputs from those involved on the ground in this project. But you didn't. I now ask that these comments be incorporated in your account which should be corrected and edited to reflect my input. In this capacity I am speaking on behalf of the two researchers who carried out the interviews, Dr Anthony McIntyre who interviewed IRA activists and Wilson McArthur who interviewed Loyalist activists.

Your first gross error came at the start of your article when you wrote:

"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."

This is so wrong it is difficult to know where to start. But here is the history of the origin of this project. In 1999-2000, Professor Paul Bew of the Political Science Department at Queens University Belfast was a visiting scholar at BC. He arrived just after the Good Friday Agreement had been signed in Belfast heralding the end of the conflict and the beginning of peace. While at BC, the head of the college's Burns Library, Dr Robert K O'Neill told Bew that because of the peace deal, BC was interested in starting a collection associated with the Irish Troubles and could he, Bew, help the college search and locate suitable projects. Bew agreed. This is the point at which the project was initiated and note that it was the college Head Librarian who initiated it. When Bew returned to Belfast he canvassed around for ideas. He approached me amongst others and I suggested replicating a project that the Irish govt had put in place after the Anglo-Irish war of 1919-1921 to collect the stories of those who had fought in the conflict. He took that idea back to O'Neill who contacted me to see if I would take the idea forward with BC's help. This I agreed to do. BC then drew up the contracts including the crucial donor contract which did not carry any caveat or warning about interviewees' vulnerability to subpoenas. The funding was also put in place for the project. Each interviewee received £25,000 p.a., I received £5,000 p.a. for what was essentially a part-time job and a small sum was set aside for equipment, transcription and shipping. All that money came from BC. So in every meaning of the phrase, the Belfast Project was "a typical university research project" that had been initiated and funded by college employees.

Since the subpoenas were served and it has become painfully clear that BC was deficient in its responsibilities to interview subjects, some of whom could now face jail terms, there has been an effort by this college to shift the blame on to myself and the two researchers and to denigrate us in every way possible. One way it has done this is to put distance between itself and the project by implying or suggesting that they kindly made room on their shelves for a project which otherwise was nothing to with themselves, a project that was entirely my work and idea. That is blatantly a lie and you have fallen for it. BC is a college that has an income of nearly $750 million a year and employs full-time p.r. people and while we have nothing like those resources we nonetheless have presented our case truthfully and have largely succeeded despite the massive odds against us.

The second untruth is this, which you also wrote:

"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."

You repeat here the canard you began your piece with, that this project was not initiated by an academic but by a journalist. I repeat, BC began this project, funded it, drew up the contracts and therefore own this project despite its efforts to suggest otherwise.

The second untruth concerns what you have to say about the Center for Irish Programs. Let me be very, very clear about this. The head of that Center is Professor Tom Hachey and throughout the life of this project, from 2001 to 2006, Hachey was the man we all went to for instructions, for assistance and for anything to do with the project aside from storage of the interviews. He was our main point of contact with BC. Dr Bob O'Neill deferred to him in all matters concerning the project and he was the public face of the project when the book based on the Hughes/Ervine interviews was published, giving all the media interviews that resulted, which are available on archive. It was Hachey who came to us circa 2004 to ask if we would agree to existing contracts being altered to allow publication of interviews while the subjects were still living. Ask yourself how that rests with BC's efforts to blame the subpoenas on ourselves? One reassurance he tried to give us at that time was that there would be no risk as we were legally safe. BC wanted bangs for its bucks, he explained, i.e. publications that would justify the expense incurred on the project. We declined on the grounds that it would be wrong to alter a deal already made with interviewees but one result of all this was the publication of the Hughes/Ervine book. BC wanted publications from their investment and this was the first. It was Hachey who conducted negotiations with the publisher, via my agent, about that book; it was Hachey who asked that he and O'Neill should share the byline on the book (Faber refused) and it was Hachey who insisted that half the royalties go to his Center and to O'Neill's library. (Incidentally, I have all the emails to back up every word I write) This pathetic attempt to distance himself from the project, using yourself as the vehicle, may have more to do with the internal politics of BC than anything else but whatever the reason it is despicable.

Accordingly, I would ask that all this be reflected in your continuing coverage of the Belfast Project, that you correct or at least balance your inaccuracies and that you contact me beforehand so that I can see what you intend to do.

Joanna Harrington says

September 30, 2012

Thank you for your comments. I believe that the value of freedom of expression (and of academic freedom) rests in the exchange of views, rather than on any requirement impose by one on another to rewrite one's work. I also know of no obligation on a legal academic commenting upon a judgment of a court to contact the plaintiffs/appellants for their views (or for that matter, an obligation to contact the defendants/respondents). Much of a common law lawyer’s work is based on reviewing the output (judgments) of courts, with no obligation to contact the plaintiff or defendant to discuss or verify.

The name of the plaintiff/appellant Ed Moloney is, of course, mentioned in the judgment discussed in my post, and upon which I relied for the findings of facts. A link to the court’s judgment was included in the post, and select passages were directly quoted. On page 5, the court states that “the factual background for these suits is not disputed.” On page 6, the US Court of Appeals for the First Circuit writes “The project was first proposed by appellant Ed Moloney, a journalist and writer” and then refers to you contracting with Boston College to become the project’s director. The majority opinion of the Court of Appeals then refers to “an agreement between Moloney and BC” that “directed him as Project Director to require interviewers and interviewees to sign a confidentiality agreement ...” At page 7 of the opinion, the court also states that “The Project employed researchers to interview ...” and at page 8, as well as page 38 on, the court refers to the missing language of “to the extent American law allows.” Lord Bew is not mentioned at all in the judgment of the US Court of Appeals for the First Circuit.

With the court having described you as “a journalist and writer” on page 7, I find it of interest to note that on page 32 of the opinion, the court refers to the appellants asserting an academic research privilege, to be evaluated under the same terms as claims of a reporter’s privilege. The concurring opinion of Torruella J refers to information gathering and information gathers and at page 43, he states that the appellants are academic researchers, and he also refers on page 45, in a footnote, to the appellants carrying out “academic investigations”. As a reader of this judgment, I find it interesting that the court does not engage in defining what is an academician or academic researcher, nor what is not, and there is, of course, a wider debate taking place about who is a journalist in these days of online commentary and blogging. Presumably if an academic researcher’s privilege was established in law, examining or discussing the definition of who is an academic or what qualifies as academic research is a valid line of inquiry.

As for what is typical or not typical, here we enter into the matters of opinion, and of course freedom of expression also protects freedom of opinion. Looking at the facts as set out by the US Court of Appeals for the First Circuit, and as an academic employed at a university, one cannot help but notice the atypical aspects, with university employees subject to rules that require contracts to bind the university to be vetted by university lawyers and research proposals to undergo research ethics approvals that require consent forms that meet certain requirements. University-employed academics are also encouraged to take into account the guidance offered within their various disciplines (say, via peer review) in terms of how they conduct their research (with the US Court of Appeals making reference to Columbia’s guidelines, and I making reference to a UK source in my post), and academics employed by a university must usually have a plan for the dissemination of their research results – the outputs or "deliverables" to show the funding bodies.

The value of academic freedom is that it allows a legal academic to comment upon what is taking place in the courts and I remain of the view that this is an interesting case, with an interesting juxtaposition of the use of contact law versus the use of secondary legislation when comparing or contrasting the Boston College project with the records of the Decommissioning Commission.

Thank you for taking the time to comment and provide additional information and perspectives.

Isabella Level says

October 3, 2012

Ms. Harrington,

I have been following this case and I am somewhat confused regarding the contracts signed by the interviewees or donators. Who created the terminology for the agreement, once formatted, who presented the contracts to each individual donor and secured their signatures? Also why was the terminology to the extent of American law excluded in their contract? Per public knowledge, it appears as if Mr. Maloney was responsible for the creation and execution of the donor agreement. Why then is he saying BC is responsible?