Belfast Project Update

[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.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

10 thoughts on “Belfast Project Update

  1. I’ve written about the BC subpoenas on several different blogs and in three different newspapers over the course of eight or nine months, so I know what I’ve said is hard to track. But this is not really the full substance of what I’ve said, and misses some important pieces. I want to write a long and considered response that will be too long to be a comment, so I’ll post it on my own blog later today.

  2. Ted,

    Borrowing my wife’s computer to say that a problem with my computer will knock me offline until tomorrow, but here’s a quick start on what I want to say. Start with what you write here:

    “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.”

    This is the center of the problem. I don’t think, first of all, that the tension is between justice and truth; I think the tension is between political gamesmanship and the truth. The PSNI and its Historical Inquiry Teams exist in a very particular historical context. Jean McConville was killed forty years ago, and the police have acknowledged that they never investigated her death or cared to do so. Then, suddenly, they started caring. More than 3000 people were murdered during the Troubles, and it’s extremely clear that the cases selected for follow-up now are not merely the most solvable or the most critical.

    A few things to consider: Dolours Price said in an interview more than a year ago that she drove McConville to her death. She has not been arrested, and as far as I can tell she has not been approached for questioning. She said out loud that she participated in a murder: no response.

    Similarly, BC turned over the Brendan Hughes interview material as soon as it was subpoenaed, since Hughes is dead, so the PSNI has had that material for at least seven months. There’s no evidence that they’ve done anything with it. They have evidence about McConville’s murder. As they’ve been doing for forty years, they’re just sitting on it.

    So I very much doubt that they’re after “justice.” I think, and there’s good evidence for this contention, that they’re after Gerry Adams and Sinn Fein. They want to politically embarrass enemies of the British state. Who in in the HET? What are their backgrounds? The RUC was a Protestant police force in the middle of a sectarian conflict between Catholics and Protestants, and the HET is staffed by retired RUC detectives. If you accept that this is simply a murder investigation, it leads you down very different roads than you take if you imagine the possibility of political gamesmanship. The police did nothing for forty years, are still doing nothing despite public admissions and evidence regarding the murder, and have said in the past that they don’t believe they can successfully prosecute anyone in this very and long-neglected old case. So what are they doing?

    And so one of the things I’ve said since the very beginning is that BC, as the target of a political subpoena, ought to be waging a political fight. Here’s what I wrote last June, for example:

    “Boston College is the target of a politicized investigation, undertaken by political means, that misuses a set of treaty obligations for improper purposes. They should fight in court — but they should also demand that their state’s congressional delegation make some pointed inquiries with the Department of Justice.”

    Irish-American groups have been calling on members of Congress and writing to the State Department, arguing that the DOJ is serving a political cause. BC never did any of that. They’ve fought a very polite and limited effort in court, litigating in a gentlemanly way. They had other political choices. They could have attacked the subpoenas in the court of public opinion, could have called on the Attorney General to rethink the decision to cooperate with the UK, and so on. They could have used their expertise in Irish affairs to highlight the very deep problems with the supposed murder investigation that brought subpoenas to its door.

    To say that the subpoenas will be upheld by the courts is probably correct, but omits forty years of political context and a whole series of other questions. Ask Dred Scott: the courts will let the executive branch do things that are wrong, foolish, dangerous, and cruel. The law isn’t always justice.

    Much more to say, and I’ll get back to it when my own computer is working again. Always a pleasure to have this discussion with you, and to consider your informed opinion. I think to some degree we’re looking at this case from different professional perspectives: a lawyer’s view and historian’s view. Most interesting to explore the ground between them.

    1. Chris, that’s a thoughtful comment. I’ve stayed out of the central political issue here for three reasons. First, there are folks on both sides who are passionate about the issue and know the ins and outs of the history much better than I do. Second, I’m not sure there’s a single best approach to weighing the two values that are in conflict here. Third, as a noncombatant, so to speak, I have the luxury of giving my views on the legal issues in the case, and I don’t want my impartiality to be called into question by taking a position on the underlying political issue.

      But I do agree with you that this is really a political issue rather than a legal issue. Article 3 of the MLAT says that the Attorney General may—that’s “may”, not “must”—refuse to provide assistance if the US considers the request to relate to an offense of a political character. The Attorney General, therefore, had some discretion to refuse to cooperate. But it was his discretion and his decision. That’s been one of my basic points throughout. I don’t regard this as the executive run amok or anything like that.

      You’re right that I’m approaching this as a lawyer. Letters Blogatory is, for better or worse, a lawyer’s blog. I’ve covered this case pretty intensely, mostly because it’s centered here in Boston, but my usual posts, no doubt of much less interest to historians but of much greater use to lawyers, involve international judicial assistance issues in civil cases with no political ramifications whatsoever. In some ways, they’re much simpler to write about, no matter how complicated the legal issues!

  3. From Ed Moloney and Anthony McIntyre

    Ted Folkman, a Boston based lawyer, is living proof that because one follows a case it does not follow that they come remotely close to grasping what lies at the heart of it.

    He writes that he has been struck by a change in emphasis among those ‘publishing articles critical of subpoenas.’ In essence he means Ed Moloney and Anthony McIntyre given his accompanying reference to ‘their defeat in the District Court.’

    There has not been a shift in emphasis but rather an expansion of the discussion to encompass the conditions that helped produce the crisis that has beset the Belfast Project. The fight to prevent the enforcement of the subpoenas, although abandoned by Boston College, is very much a work in progress. Are we in court contesting the enforceability merely for the optics?

    Ted Folkman seeks to frame the current debate in terms of an assumption on our part that the subpoenas are enforceable. The problem is less that the subpoenas are enforceable but more that they could ever have been issued in the first place. Boston College is on public record as stating that ‘the arrival of subpoenas was ‘totally unexpected’. It found them totally unexpected, despite its current waffling about ‘to the extent American law allows’ only because it was certain no such action was possible; an assurance it separately conveyed to both sides of the Belfast Project, loyalist and republican.

    In the contract given to the Belfast project director it was stated that:

    ‘each interviewee is to be given a contract guaranteeing to the extent American law allows the conditions of the interview and the conditions of its deposit at the Burns Library including terms of an embargo period, if this becomes necessary…’

    Yet that undertaking was never put into effect. BC did not give each interviewee a contract to this effect and the question must be why not? Why did they break their word? What they did was bury the ‘American law’ reference in a separate contract with Ed Moloney. Had this reference been included in the donor agreement this would have been a red flag to everyone, project director, interviewers and interviewees alike and the project would have been dead in the water. But the reference was excluded. Why? Was it because BC did not want to kill off the project at this point? That they did not want to lose this opportunity to acquire a very valuable historical archive? These were BC’s contracts not ours. BC stated that the operative contract was the donor agreement which encapsulated what they stipulated at the outset, that nothing would be allowed into the Burns Library that would be at legal risk. The question then becomes, did BC deliberately mislead the project director, interviewers and interviewees?

    We will be charitable and assume that Ted Folkman did not fully read the blog post that we separately posted over the weekend that addressed this issue and that he entirely missed the contribution of the Loyalist group involved in this project, the Ulster Volunteer Force (UVF).

    For obvious reason Anthony McIntyre was not involved in the dealings that led to the UVF’s inclusion in the project and aside from one brief meeting in Belfast, Ed Moloney, then based in New York, was not substantially involved either. Instead representatives of that group held their own face-to-face meetings with senior BC staff which were, by their account, dominated by the issue of legal safety.

    One of their number gave us this quote, which we reproduced: ‘they i.e. BC)…..from day one, gave guarantees that were directly related to the interest this material would have from the PSNI.” Allow us to translate in words that close down the space for Ted Folkman to proffer any alternative plausible interpretation: we asked whether the cops could ever get their hands on the interviews and we were told no.

    At the heel of the hunt everything lies within the donor agreement, the operative contract. While it can be argued with hindsight that the reference to American law can be cited as covering the issue of confidentiality it nevertheless does not single out and specify confidentiality. In fact it could as easily be argued that given BC’s own wording in the donor contract, which the College crafted, the American law reference was framed with ownership of copyright in mind, which was very clearly written into the contract. This concerned Brendan Hughes so much that in his own donor agreement he imposed limits on the effects of copyright belonging exclusively to Boston College.

    The confidentiality issue appears very much as a standalone matter in the contract. There is a very specific reference to confidentiality in the donor contract: ‘the ultimate power of release shall rest with me.’ It is clear that ‘ultimate’ is not BC, the courts or anybody else but the interviewee. If American law did not permit ‘ultimate power’ of release to reside with the interviewee why was it ever part of the donor agreement? If a court constituted a higher power that rendered the ‘ultimate power’ of the interviewee redundant why write into the donor contract that the interviewee had such power?

    The sin of omission Ted Folkman refers to finds its equivalent in the case of the driver who omitted to sound his horn and then blamed the pedestrians he mowed down.
    Mr Folkman also argues that:

    ‘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).’

    Yet given the highly sensitive nature of the Belfast Project, for it not to have specified the nature of limitations is an omission that begs for much greater scrutiny than Ted Folkman is prepared to give it with his dismissive comment ‘I don’t think it’s particularly blameworthy to have omitted something that should have been generally understood.’

    Why should it have been generally understood if in assurance after assurance, and also in its donor contract, Boston College stated that the archived material was subject to the ‘ultimate power’ of release by the interviewee? Surely, such an ambiguity-free undertaking, were it not given in bad faith, ought to have had any derogation explicitly pointed out in the same document?

    That one simple line of Folkman, ‘promises of confidentiality are always subject to the power of a court to issue subpoenas’, could easily have been inserted into the donor contract and all current problems would never have arisen. As Ed Moloney has correctly pointed out there would have been no archives to invade had that been in the contract.

    To boot, we do not have to guess what Boston College’s own thoughts on the matter of privilege were. In his May 2000 fax the Burns Librarian stated “Nevertheless, the First Amendment to our Constitution is greatly cherished here, and I suspect the courts would look upon these interviews as privileged information.” If, Boston College resiled from this position where did it make this clear? Certainly not in the donor agreement, the tone and tenor of which resonated with the notion of privilege. The term ‘ultimate power of release’ does not lend itself to any other inference.

    Moreover, Boston College has shown its own contempt for the notion ‘to the extent American law allows.’ American law allowed it not to hand over the entire republican archive to the court for in camera review; American law allowed it to appeal the decision by the District Court to hand the Dolours Price interviews over to British authorities. Yet, in spite of ‘the extent American law allows’ Boston College did not make use of such allowance and pulled out of the case. It is quite prepared to allow the archive to be handed over to British authorities even though American law allows Boston College to go much further in its legal battle than round one. This is evidenced by the fact that the archive remains on US soil not as a result of Boston College’s legal strategy which has clearly failed, but because we are fighting the case ‘to the extent American law allows.’ How come Boston College is not doing the same?

    Ted Folkman displays a stultifying sense of respect for institutional authority so breathtakingly deferential that it raises the issue of what trust can be placed in an institution that is quite prepared to let its researchers and research participants go to prison before making any sort of ethical stand itself. Has he thought through the implications of what he is actually advocating, that researchers and their participants should go to prison while the university should eat, drink and be merry? Such gratuitous acquiescence in the institutional abrogation of ethical responsibility is a slave owner’s charter not a code of ethics for a modern university.

    1. Mr. McIntyre asked whether I would print a reply from him and Mr. Moloney to this post, and I told him I would without asking about its content, which was maybe unwise given the drubbing he gives me, and which was probably also more generous than I needed to be, given that Mr. Moloney did not print an entirely non-adversarial comment I submitted to his blog, and given that the Boston College Subpoena blog does not allow comments at all! All that being said, here is my response.

      1. Mr. McIntyre blames BC for failing to give the interviewees notice of the possibility of a subpoena. I have done likewise, for example in my radio interview with Fran McNulty. But I have also assigned some of the responsibility to Mr. Moloney and to the participants themselves. I have assigned some of the blame to Mr. Moloney because he was party to a contract with BC that made explicit the idea that there were limitations on the promise of confidentiality. Why did he not communicate this to the participants? Did Mr. Moloney or Mr. McIntryre have an opportunity to review the donation agreement before it was distributed to the participants? And I have assigned some of the blame to the participants, who, in my opinion at least, were naive to rely on legal advice from the parties that were seeking to persuade them to disclose the material they now want to keep confidential. From the outside, in any event, it seems that at least one of the interviewees, Dolours Price, does not really have an interest in keeping her interview confidential, as she gave an interview discussing some of what folks have been speculating is in her interview and as she has not challenged the subpoena herself (though I have no idea whether she had any practical ability to do so).

      2. I have not expressed an opinion on what I think is the most important policy question in the case, namely, whether there should be an evidentiary privilege for oral history materials. I have said that I think there is not such a privilege in fact, referring to recent reporter’s privilege cases to show by analogy that the courts have been hostile to such claims recently. But the question is open and I’ve called it a “toss-up” on appeal.

      3. If the question is a “toss-up”, why has BC not appealed? After all, it is the party that has really raised the privilege point. Mr. Moloney and Mr. McIntyre have focused instead on compliance with the MLAT, which I’ve argued is a weak point given that the MLAT expressly provides that it creates no private right of action and because it’s not clear to me that they, as opposed to BC or the interviewees, are the proper parties to raise such questions. I have no idea why BC has not appealed, and perhaps Mr. McIntyre is right to suggest that the interviewees might be able to assert that BC had violated the donation agreement by not appealing. (I note, incidentally, that BC could still appeal the judge’s recent order regarding release of additional material). But one could turn the question around–why have none of the interviewees sought to assert a privilege and quash the subpoenas. Again, I have no idea.

      4. I take a little bit of umbrage at the following sentence: “Ted Folkman displays a stultifying sense of respect for institutional authority so breathtakingly deferential that it raises the issue of what trust can be placed in an institution that is quite prepared to let its researchers and research participants go to prison before making any sort of ethical stand itself.” With respect, I think Mr. McIntyre has misunderstood what I’ve been writing about. I’m not a partisan on either side of this issue. I have no special knowledge of the Troubles in Northern Ireland and no special interest in the period. I am not primarily interested in the moral rights and wrongs of what has happened or in the political question of whether the UK authorities should have sought judicial assistance in the first place or whether the US Attorney General should have granted the request. While I think the question of whether there is an evidentiary privilege is interesting, I’m not primarily interested in that question, but instead in the questions of international judicial assistance under the MLAT that the case raises. To someone as deeply and personally involved in the story as Mr. McIntyre, no doubt this seems unsatisfactory. But I’ve never set out to do more that cover this case from the perspective of the law of international judicial assistance. So I think it is unfair for Mr. McIntyre to accuse me of insufficient interest in the aspects of the case that are most important for him but less important for me.

      1. Our piece on this site, which I thank Ted Folkman for carrying, was not a drubbing. It was a dissenting view from the position articulated by him. There was no intent on our part to drub or insult Mr Folkman. Our intention was to seriously question his narrative. I appreciate that he has given considerable time to following the Boston College crisis. But interest no matter how sustained is not a licence to get it wrong. In my view he has erred on substantive matters.

        Ted Folkman completely overlooks what lies at the heart of the confidentiality claims proffered by myself and Ed Moloney. He seeks to say ‘plague on all you houses’ without looking beyond the facade to see what lies beneath. No mention of the independent assertions by the loyalists that they were given unequivocal guarantees by Boston College. No explanation of why BC drew up a donation agreement stating explicitly where ultimate control of the donation resided – in the hands of the donors, not the courts, not BC, not anyone other than those who made the donation.

        Rather than BC ‘making explicit’ that confidentiality was guaranteed to the extent allowed by American law, it buried this clause in a separate document. It was obligated by its own undertaking not to bury it in a separate document but to place it in the donor agreement. It failed to do so.

        What Ted Folkman took particular umbrage at was our firm belief that he thinks it more incumbent on researchers and research participants to face imprisonment than institutions take a similar hit. What else are we to read into the following comment?

        ‘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.’

        Ted Folkman’s explanation for taking umbrage meandered off into an area not germane to the above comment which amounts to it being unwise for a university (its senior staff or trustees) to go to jail to protect confidential sources but okay for the researchers to go. Surely Mr Folkman must appreciate the ethically challenged content of such sentiment, its bias toward the institution and the deprioritising of the researcher who becomes pretty much expendable. If trustees of a university are willing to solicit confidential information but unwilling to face the consequences of doing so, instead passing them off onto researchers, they crystallise in institutional form the old concept of lions led by donkeys.

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