[UPDATED: I added a point 4, which is now the second-to-last paragraph]

I was interviewed today on RTÉ Radio 1’s This Week program on the Belfast Project litigation here in Boston. I didn’t get to hear the whole program (or even my interview), but I did catch interviews that the reporter, Fran McNulty, had with Eamon Dornan, Anthony McIntyre and Ed Moloney’s lawyer, and Alan Shatter, Ireland’s Minister for Justice and Equality and a member of the governing Fine Gael party. I’ll post a link when it’s available. It’s become clear in recent days that the dispute about the subpoenas has become a significant political issue in Ireland.

I’ve been struck by the change in emphasis among those who have been publishing articles critical of subpoenas. Until recently, it seemed to me their aim was to show that the government’s subpoena was not enforceable. But after their defeat in the District Court, the emphasis seems to have shifted. Now I’m reading a lot of blame directed at Boston College—blame that assumes that the subpoenas are enforceable and that takes BC to task for failing to warn the interviewees of the legal risk. For example:

  • Chris Bray, a candidate for a Ph.D. in the History Department at UCLA and a critic of the subpoenas, wrote that it’s “very likely” that the subpoenas are enforceable notwithstanding BC’s promise and suggested that Boston College, having made a promise of confidentiality, is now obligated to keep it even at the risk of violating the law.
  • Ed Moloney, the former director of the Belfast Project, and Anthony McIntyre, one of the researchers, have claimed BC should have included language in the agreement between the College and the interviewees indicating the legal risk of a subpoena: “There was no caveat in the contract drawn up by Boston College’s attorneys stating that the type of confidentiality it guaranteed would not withstand a court order. Clearly BC’s legal opinion was that it was unnecessary. Otherwise why not insert the caveat if the type of confidentiality stipulated in the contract in any way clashed with American law?
  • Micheál Martin, the leader of the Fianna Fáil party, questioned whether BC is an appropriate custodian for the papers of the Independent International Commission on Decommissioning. Minister Shatter accused Martin of “scoring a ‘bizarre own goal'” with this argument, and I must say that the comparison between the Belfast Project and the IICD seems weak to me: in the Belfast Project case, the question is whether a private college can make a promise of confidentiality that somehow limits the government’s subpoena power. In the case of the IICD, on the other hand, the IICD itself—a creature of the UK and Irish governments—made the promise of confidentiality, and according to remarks I heard Minister Shatter make, both the UK Irish governments have enacted measures to ensure that the documents should be kept confidential and to give the documents the status of diplomatic papers immune from US legal process under the Vienna Convention (I have not been able to verify this with a quick web search). In any event, since the UK government has made the promise of confidentiality, it seems implausible that the UK would seek to obtain the materials from Boston College.

I’ve mostly commented about the legal merits of the proceedings in Boston. I have not commented on the ultimate question of policy behind the case, namely, the tension between the goal of bringing wrongdoers to justice and the goal of encouraging participants in conflicts to tell their stories to historians. But I do want to comment on the notion that Boston College is solely to blame for what has happened.

First, I don’t think anyone has suggested that Boston College set out to trick the participants who gave interviews. It seems that at most, the College committed a sin of omission by failing to expressly disclose the risk of a subpoena to the interviewees. But is that really blameworthy? Promises of confidentiality are always subject to the power of a court to issue subpoenas, except in cases where there is an evidentiary privilege (the best known examples in the US: the attorney/client privilege and the priest/penitent privilege). There is arguably a reporter’s privilege, but its scope is unclear and probably narrower than it once was—remember the Plame Affair, in which New York Times reporter Judith Miller was found in contempt of court after a court held that she had no privilege to refuse to disclose the identity of the person who leaked information about Valerie Plame’s role as a CIA officer in response to a grand jury subpoena? Aside from these privileges, though, the general rule is that a promise of confidentiality does not excuse a refusal to comply with a subpoena. Suppose you told your best friend, or a business partner, or an historian, that you had a secret and you swore her to secrecy. Would her promise excuse compliance with a subpoena? Of course not. Against this background, I am not sure it is mandatory to say that a promise of confidentiality is subject to the government’s subpoena power. That’s always true, except in the few cases where the law recognizes evidentiary privileges. So I don’t think it’s particularly blameworthy to have omitted something that should have been generally understood. And if the interviewees wanted a legal opinion about their risks, I think it would have been better to obtain their own counsel than to rely on Boston College.

Second, if there are three parties here—Boston College, the interviewees, and the Belfast Project researchers—I think it’s not fair to attach blame to Boston College for failing to warn the interviewees, or the interviewees for failing to do their own due diligence, without also giving some of the blame to the Belfast Project researchers, including Mr. Moloney, who were the intermediaries between BC and the interviewees. We know from an exhibit to Mr. McIntyre’s affidavit that Mr. Moloney, at least, was aware that the contract with interviewees was intended to promise confidentiality only “to the extent American law allows”, because he was party to an agreement with BC that says so. So why does Boston College, rather than Mr. Moloney, deserve the blame?

Third—and this is a question I’ve had for a while—I am wondering why the parties with real standing, the interviewees themselves, have not sought to quash the subpoenas. In other words, without knowing more, I am not sure we have a reason to conclude that if we asked the interviewees, they would blame Boston College alone, rather than the Belfast Project researchers, for the apparent failure to inform the interviewees of the risk of a subpoena. I make this point somewhat tentatively, since I don’t think I’ve read anything in this whole affair that purports to express the views of the interviewees themselves.

Fourth, the subpoena recipient is Boston College itself, not an individual. There are certainly cases where an individual’s professional ethics require the individual to refuse to comply with a subpoena even if the subpoena is enforceable. Thus reporters are prepared to go to jail to protect confidential sources. But does it make sense to ask an organization such as a major college to do likewise? I think not, because institutions have responsibilities to many people, not just to a single constituency.

A note on scheduling: the First Circuit has issued an order suggesting that the McIntyre/Moloney appeal from the denial of their motion for leave to intervene will be heard in March 2012, and that it will likely be consolidated with any appeal in the McIntryre/Moloney claim against the Attorney General, which could be ready for an appeal shortly after the hearing on the government’s motion for dismiss scheduled for later this month.