Boston College St. Ignatius Gate
Yesterday, Judge Young ruled that most of the interviews Boston College turned over to him for in camera inspection need not be produced in response to the government’s second subpoena. The decision doesn’t rest on any high constitutional principles. Rather, the gist of the judge’s decision is that most of the materials are not within the subpoena’s scope. According to BC’s second motion to quash, the subpoena called for:

  1. Original audio and visual recordings of “any and all interviews containing information about the abduction and death of Mrs. Jean McConville.”
  2. Written transcripts, summaries, and indices of such interviews.
  3. Records that describe the arrangement and circumstances of the recordings and the chain of custody of the recordings.

(The first subpoena, in contrast, called for the interviews of Dolours Price and Brendan Hughes, and thus it hardly gave room for debate about what was or was not within its scope).

Judge Young found, following his review, that of the 176 interviews of 24 interviewees submitted for review, only 6 interviewees mentioned the McConville incident at all. Of these, one interviewee provided clearly responsive material. Another interviewee provided “information that, if broadly read, is responsive to the subpoena.” Three others made “passing mention of the incident”, though it is unclear whether they had personal knowledge of it. Judge Young ordered that the complete set of interviews of these five interviewees must be produced. the sixth “does nothing more than express personal opinion on public disclosures made years after the incident.” Judge Young held that that interviewee’s materials need not be produced. The judge also ordered that two additional interviews hat mentioned “a shadowy sub-organization within the Irish Republican Army that may or may not be involved in the incident” must be produced, though the entire set of interviews for those interviewees need not be produced.

This decision is a partial vindication of Boston College’s recent litigation strategy, which has been to agree to the turn-over of the Dolours Price interview, which was clearly related to the McConville investigation, and to fight to keep the other materials confidential. If the College agrees with the judge that any interviews relevant to that investigation should be turned over, then the decision may be a more-than-partial vindication. In a column in the Irish Times, Professor Thomas E. Hachey and Dr. Robert K. O’Neill, respectively the Executive Director of Irish Programs and Burns Librarian at BC, wrote:

Upon its initial in camera review, the court, which has access to sealed information about the underlying criminal investigation that Boston College does not have, ruled that the Price materials had to be turned over given their relevance to the investigation.

The court has not ruled on the remaining interviews in question, and our hope is that these remaining materials under the judge’s review will not have to be released. That is one reason why Boston College chose not to appeal the court’s decision, deeming this option to be the better course to protect the interests of interviewees and to help preserve the court’s recognition of the important interests in protecting academic research more broadly than had been previously recognized in law.

There may not be a good explanation for why Boston College turned over the non-responsive materials in the first place, a decision that partisans opposed to the subpoenas have blasted. Still, Boston College’s overall strategy seems to have been sound, given that it was ultimately willing to turn over the Price materials. (We must wait and see whether the College is also willing to turn over these additional materials without a fight).

The scope of the case has now been significantly narrowed (unless the government appeals from the new order). Now all that is at stake is the Dolours Price interview and the subset of interviews that bear on the McConville incident. This may be satisfactory to Boston College, but will it be satisfactory to Ed Moloney and Anthony McIntyre, the Belfast Project researchers who have mounted their own legal and political fight against the subpoenas?

This Tuesday, Judge Young will be hearing argument on the lawsuit brought by Mr. McIntyre and Mr. Moloney, who argue that both subpoenas were improper. I’ll be liveblogging the hearing, so please check out lettersblogatory.com just before 2 pm Eastern time (7 pm Ireland time)!