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"I have never, ever, ever admitted to being a member of the I.R.A. — never — and I’ve just done it here."
July 9, 2012 6:47 AM   Subscribe

As reported in this article in the Guardian, a US appeals court recently ruled that confidential oral history interviews given by former members of Northern Irish paramilitary groups to researchers from Boston College are not confidential.

As part of the conditions of agreeing to the interview, subjects were told that these tapes would not be released until after their deaths. This agreement arose primarily out of concerns for the subjects’ and researchers’ personal safety, since sectarianism is still a really powerful force in Northern Ireland.

Here’s an excerpt from a posthumously-released recording, as reprinted in the New York Times:

“Do you have a problem with committing all this to a secret tape to be used only after you have died?” the interviewer, Anthony McIntyre, asks.

“I don’t have a problem with that,” Mr. Hughes replied. “If I did have a problem with that, I wouldn’t be sitting here talking into the microphone. I think a lot of the stuff I’m saying here, I’m saying it on trust, because I have a trust in you. I have never, ever, ever admitted to being a member of the I.R.A. — never — and I’ve just done it here.”

The Guardian’s Ireland correspondent, Henry McDonald, has already responded, saying that this may make discovering the truth about the Troubles impossible. Additionally, many historians and other academics (myself included) are concerned about the precedent this has set for presumed-confidential oral history interviews and what this might mean for future researchers. Historian Richard English sums up these concerns succinctly in the first article when he says, “The key thing when interviewing ex-combatants or ex-paramilitaries is that they trust the interviewer and trust the process of research, and so tell you what they actually think and what they actually did. After this episode, that trust will be a rarer commodity.”

This has already had repercussions for those researching Northern Ireland. Because of the courts' attempts to obtain the transcripts and recordings from these interviews, members of various loyalist paramilitary groups as well as former members of the Royal Ulster Constabulary (the predecessor to the current Police Service of Northern Ireland) have already withdrawn from an oral history project being organized by a London-based university.
posted by naturalog (69 comments total) 18 users marked this as a favorite

 
...I will say this: at the very least, the US is treating the IRA like the terrorist organization it is.

How they treat people suspected of belonging to terrorist organizations is something else again, but there was a time when I'd have believed that the US would have given them a pass because they weren't perceived as being terrorists or something.
posted by EmpressCallipygos at 6:54 AM on July 9, 2012 [6 favorites]


"How would Americans feel if a college in Oxford or Cambridge had interviewed al-Qaida members about the murder of American citizens or soldiers, and then this institution resisted handing over that intelligence to the US authorities? That is the argument we are making on the American airwaves this week," they added.

I would be okay with that, not least because I wouldn't trust the US authorities not to torture or kill the interview subjects.

I wonder if this could have been avoided by having the interviewers be attorneys. The interview could have been conducted in part to secure legal advice regarding the interview subjects' past actions, which I think would be enough to invoke attorney-client privilege. Since the substance of the interview wouldn't be released until the subjects' deaths, there wouldn't be a waiver of the privilege while the subjects were alive.
posted by jedicus at 6:59 AM on July 9, 2012 [20 favorites]


On the one hand this is a historical record, and something so important to knowing what went on.

On the other, it is a confession to crimes that have never been punished.

Is there any precedent for historians being lawfully able to take such information without disclosure? They seem to be asserting a right that, while good for history, doesn't seem to be established. I'm not sure whether this counts as journalism for the purposes of protecting sources. Did they promise something they could never fulfill?
posted by Jehan at 7:11 AM on July 9, 2012 [4 favorites]


I'm surprised that the BC researchers promised confidentiality -- in what way did they think that they could promise that? Did they think about running that promise by a lawyer? It seems like they were either irresponsible or dishonest in promising that they could maintain the subjects' confidentiality, unless there's something I'm not understanding.
posted by Kadin2048 at 7:15 AM on July 9, 2012 [12 favorites]


As someone from England who grew up with a background fear of bombings (two cities, Warrington and Manchester, were bombed on days I happened to be in them) I was very frustrated when I started travelling within America by the "free pass" the IRA were given. Recall that more or less open fund raising was going on in the US at the same bombs were going off in the UK.

The change in attitudes towards the IRA, at least the ones I've encountered, within the US has been massive since 9/11. Total about turn. I think rulings like this are a natural continuation of that.
posted by samworm at 7:15 AM on July 9, 2012 [11 favorites]


"How would Americans feel if a college in Oxford or Cambridge had interviewed al-Qaida members about the murder of American citizens or soldiers, and then this institution resisted handing over that intelligence to the US authorities? That is the argument we are making on the American airwaves this week," they added.

This would not trouble me at all. This is no different than journalists going off into the field and speaking with terrorist organization members today. The difference is a promise not to report the source and/or the contents while the interviewee is still alive. Of course, the US Court System has said that reporter/interviewee confidentiality is not a protected form of free speech, but that's another, if similar, issue.

One day this conflict will be over and understanding why, how, and what it was that drove men and women to participate in such organizations and to commit the acts they committed will help inform future events.

Not to mention, unless the interviewer had the interviewee swear under oath that all answers given were the truth and nothing but the truth, any prosecuting court will simply have hearsay evidence. At the very best, such "confessions" might help lead investigators to evidence that is admissible and can be used, but how likely is that?
posted by Atreides at 7:20 AM on July 9, 2012


At the very best, such "confessions" might help lead investigators to evidence that is admissible and can be used, but how likely is that?

I would assume it's not just fear of prosecution, but of retaliation, that would make the interviewees desire confidentiality.
posted by emjaybee at 7:35 AM on July 9, 2012 [11 favorites]


Here is a copy of the most recent appelate opinion.

It is unfortunate that the BC researchers may have offered inappropriate assurances, but this doesn't seem like a tough legal issue to me. The US and UK have a mutual assistance treaty, the murder of Jean McConville was a crime, and interviews in which that crime is dicussed are key evidence.

I wouldn't be too sure about these interviews being hearsay. I believe the UK has some of the same hearsay exceptions as US jurisdictions and confessions made by a member of a conspiracy probably are admissible against members of that conspiracy.

On the larger public policy issues, how important is it that we have a great set of oral histories from replublican and loyalist killers? I admit that I'd be fascinated to read those oral histories and I might really learn something, but I wouldn't tell Mrs. McConville's children that their mothers' murderers should walk free because of the public interest in having oral histories. The IRA killed their mother, lied about her, and has repeatedly and consistently threatened their lives when they sought information and tried to have the killers prosecuted. Don't they deserve a chance at a little justice?
posted by Area Man at 7:38 AM on July 9, 2012 [7 favorites]


It seems like they were either irresponsible or dishonest in promising that they could maintain the subjects' confidentiality, unless there's something I'm not understanding.
posted by Kadin2048 at 7:15 AM on July 9 [1 favorite]


Normally confidentially agreements are understood only to pertain to voluntary, civil disclosure -- e.g., you won't voluntarily give the documents to anyone else in a non-law enforcement/court order context. A typical confidentiality agreements these days would specify that the agreement does not extend to a law enforcement investigation or a court order. This specification does not actually grant or take away any rights; it just puts the parties to the contract on notice that a contract cannot trump a court order.

According to the 1st Circuit opinion, the historians thought they could protect the documents through another route -- an "academic research privilege," similar to reporter's privilege. But apparently the reporter's privilege (which is not legally air tight in any event) does not apply in the criminal context anyway.
posted by yarly at 7:40 AM on July 9, 2012 [1 favorite]


I was very frustrated when I started travelling within America by the "free pass" the IRA were given. Recall that more or less open fund raising was going on in the US at the same bombs were going off in the UK.


A lot of Irish people live here and their attitudes were frozen in time from when their ancestors got here. The IRA started out as an insurgent army, not a terrorist organization.

I think many US Irish people didn't understand why the UK lopped off one part of the island to protect a minority it deliberately planted there and to whom it gave the right to vote when the vast majority of Catholic Irish could not vote in their own land.

What was not understood was that most of the south had moved on and was content to leave Ulster in the hands of the British.

I remember hearing of old family gatherings where the women played cards in one room and the men "talked the troubles" in another.
posted by Ironmouth at 7:41 AM on July 9, 2012 [2 favorites]


It is unfortunate that the BC researchers may have offered inappropriate assurances,

Reading the opinion, it does seem like someone screwed up with the agreements:

"Moloney's agreement with BC directed that "[e]ach 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" (emphasis added). Despite Moloney's knowledge of these limitations, the donation agreements signed by the interviewees did not contain the limitation required to be in them by Moloney's agreement with BC."
posted by yarly at 7:42 AM on July 9, 2012 [1 favorite]


I'm surprised that the BC researchers promised confidentiality

Me too. I mean, one one hand I'm not, because it's an obvious thing to offer. But on the other hand I am, because it's obvious that they can't actually offer it. Indeed, isn't getting this information out into the public the whole point of the exercise?

Journalists can be made to give up their sources. They tend to think that there's such as thing as "journalist's privilege," but there isn't one in federal law and only a few states have created one by statute. Physicians can be made to testify about their patients. They may feel some ethical duty of confidentiality, but they have no such legal duty.* Historians aren't part of a profession that's traditionally considered to have even that duty. Heck, "academic freedom" isn't even really a cognizable legal right. The only people who cannot be made to testify are attorneys and spouses, and there's even ways of getting around that in certain circumstances.

Rule of thumb: if you aren't a lawyer, and you think you have a right to keep your mouth shut about something someone else tells you, you're probably wrong.

*HIPAA and related regulations prevent people who deal with health information from spreading it around without permission, but they do not enable people to refuse court orders. Health care information isn't really "confidential," it's just protected from casual dispersion, which isn't quite the same thing.
posted by valkyryn at 7:42 AM on July 9, 2012 [3 favorites]


...by the "free pass" the IRA were given [in America].

I think we heard the "Irish" louder than we heard the "Army" when someone said "Irish Republican Army."
posted by wenestvedt at 7:43 AM on July 9, 2012


I'm surprised that the BC researchers promised confidentiality -- in what way did they think that they could promise that? Did they think about running that promise by a lawyer? It seems like they were either irresponsible or dishonest in promising that they could maintain the subjects' confidentiality, unless there's something I'm not understanding.

This is exactly my thought. I'm a psychotherapist, and I understand, and make sure my patients understand, the limits of confidentiality in my consulting room. It's news to me that there is any consideration of confidentiality for historians, and I'm not sure why the historians or there subjects would think there would be. This seems uncontroversial to me.
posted by OmieWise at 7:44 AM on July 9, 2012 [1 favorite]


Disclaimer: I am a B.C. grad, but not in this department and not at all connected to the research.

My conjecture: I wonder if this is a result of social scientists thinking they could have anonymity just like data that comes from human subjects in, e.g., a clinical trial. Or maybe they thought it would be like a journalist protecting their source? *shakes head* It's admirable to document history with first-person accounts, but these are criminals.

I am torn.
posted by wenestvedt at 7:47 AM on July 9, 2012


Isn't this a cross-disciplinary project? Perhaps some of the people involved simply didn't know they couldn't offer confidentiality.
posted by wenestvedt at 7:48 AM on July 9, 2012


It's surprising they thought they could offer it, but to me it's even more surprising they were believed.
posted by Segundus at 7:51 AM on July 9, 2012 [3 favorites]


Maybe the habit of confession is just implanted a little too deeply in the old culture?
posted by Segundus at 7:54 AM on July 9, 2012 [1 favorite]


It's surprising they thought they could offer it, but to me it's even more surprising they were believed.

You would think that terrorists of all people would know that old adage about how two people can keep a secret if one of them is dead, certainly.
posted by winna at 7:57 AM on July 9, 2012 [2 favorites]


Yarly's quote from the most recent opinion is important. The researcher *did not include* the language he was told to include - "to the extent American law allows" - in the agreements he got his subjects to sign. Again:

Burns Librarian O'Neill informed Moloney before the project commenced that he could not guarantee that BC "would be in a position to refuse to turn over documents [from the Project] on a court order without being held in contempt." In keeping with this warning, Moloney's agreement with BC directed that "[e]ach 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" (emphasis added). Despite Moloney's knowledge of these limitations, the donation agreements signed by the interviewees did not contain the limitation required to be in them by Moloney's agreement with BC.

The court goes on to say it wouldn't have mattered legally even if the language had been included, but folks more concerned about the moral implications should recognize that the researcher appears to have really screwed up (or deliberately misled his subjects) here.
posted by mediareport at 8:14 AM on July 9, 2012 [3 favorites]


You remember how when some people claim the only way to prevent terrorism is to conduct a military campaign, suspend the rule of law, and apply force without oversight? And we all say no, no, you combat terrorism by treating it as a criminal act, by relying on the investigative powers of police agencies, by trusting the justice mechanism provided by the courts?

That is what this is.
posted by samofidelis at 8:21 AM on July 9, 2012 [3 favorites]


The court goes on to say it wouldn't have mattered legally even if the language had been included, but folks more concerned about the moral implications should recognize that the researcher appears to have really screwed up (or deliberately misled his subjects) here.

Except that it probably does matter legally. If the interview subjects had been told that their interviews were absolutely confidential, and the interviewer knew this wasn't true, there's almost certainly a tort lurking in there somewhere. Civil liability for invasion of privacy is a real possibility. Here's its not the dissemination of information that's the problem, but the gathering of information under false pretenses.

I don't think there's necessarily any precedent for this, but I can see a court going that route.
posted by valkyryn at 8:22 AM on July 9, 2012


folks more concerned about the moral implications should recognize that the researcher appears to have really screwed up (or deliberately misled his subjects) here.

I'm not sure it matters for the moral implications, since the truth is that the limits of confidentiality in this case are so tight as to make the offer of it essentially meaningless. Had the researcher included the language people may have asked more explicitly about those limits, but the actual coverage would have still been mostly non-existent.
posted by OmieWise at 8:22 AM on July 9, 2012


This is sociology and not history, but Rik Scarce spent half a year in jail for refusing to hand over his sources after a subpoena in the mid 90s. He was actually freed eventually without being forced to testify. Apparently the code of ethics for sociologists used to specify that "confidential information provided by research participants must be treated as such by sociologists, even when this information enjoys no legal protection or privilege and legal force is applied" (my italics; the code was later modified).

His is sort of an extraordinary case; I guess it remains to be seen whether the people behind this study are prepared to go so far to protect their research.
posted by en forme de poire at 8:23 AM on July 9, 2012


That is what this is.

No, it isn't. This is a decades-old murder investigation. Doesn't have anything to do with "preventing" anything.
posted by valkyryn at 8:24 AM on July 9, 2012


That is what this is.

No, it isn't. This is a decades-old murder investigation. Doesn't have anything to do with "preventing" anything.
posted by valkyryn at 10:24 on July 9 [+] [!]
Do you know what the statute of limitations for murder is in the United Kingdom?
posted by samofidelis at 8:27 AM on July 9, 2012


f the interview subjects had been told that their interviews were absolutely confidential, and the interviewer knew this wasn't true, there's almost certainly a tort lurking in there somewhere. Civil liability for invasion of privacy is a real possibility. Here's its not the dissemination of information that's the problem, but the gathering of information under false pretenses.

But where is the act or omission? I could see fraud or a similar tort. But invasion of privacy? BC engaged in no invasion. They are not the feasor in that situation.
posted by Ironmouth at 8:31 AM on July 9, 2012


Except that it probably does matter legally.

You're right; I wasn't clear. The point is the court said the failure to include the right language "does not change the fact that any promises of confidentiality were necessarily limited by the principle that "'the mere fact that a communication was made in express confidence . . . does not create a privilege. . . . No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice.'"
posted by mediareport at 8:36 AM on July 9, 2012


Do you know what the statute of limitations for murder is in the United Kingdom?
There isn't one.

Also, I've just finished reading the appellate opinion and there's an interesting second opinion in which another judge states that academic researchers are legally recognized as journalists for the purposes of first amendment protections and that this case is not a question of whether they can hold things confidentially as much as a question of "the degree of protection to which they are entitled." However, because of the legal assistance treaty in place between the US and the UK, a lot of the space for negotiation about how much confidentiality they are able to maintain is gone.

(Disclaimer: I am not a lawyer and my legal training is limited to an international law class I struggled through five years ago.)
posted by naturalog at 8:39 AM on July 9, 2012 [1 favorite]


Do you know what the statute of limitations for murder is in the United Kingdom?
There isn't one.

That's sort of the point.
posted by samofidelis at 8:42 AM on July 9, 2012


From Inside Higher Ed, Moloney and Boston college are blaming each other for the absence of the "to the extent American law allows" language:

Jack Dunn, a spokesman for Boston College, said via e-mail that "the contract, which project director Ed Moloney signed, clearly stated that there were limits to confidentiality based on American law. The contract superseded the subsequent donor agreements. It is a shared regret and a shared responsibility among Ed Moloney, Anthony McIntyre [the other researcher] and Burns Librarian Bob O'Neill that this caveat was not included in the donor agreements, but the limitations of confidentiality were clearly expressed and known by Ed Moloney and Anthony McIntyre when they embarked on the interview process with former IRA members."

Moloney, however, said that this was the responsibility of the college. "Drawing up the contracts and decisions about their content was done by Boston College, not me, as was proper," he said.

posted by mediareport at 8:43 AM on July 9, 2012


This is no different than journalists going off into the field and speaking with terrorist organization members today. The difference is a promise not to report the source and/or the contents while the interviewee is still alive

It is in that "the field" is not some cave in Afghanistan but more likely a row house in Belfast. Easier to track down the interviewee.
posted by IndigoJones at 8:45 AM on July 9, 2012


That's sort of the point.

So... investigating forty-year old murders is how we're supposed to deter future terrorist acts?
posted by valkyryn at 8:45 AM on July 9, 2012 [1 favorite]


Understanding history is perhaps the best tool we have as a society to build a better future. There is a lot worth knowing about how and why people join and participate in terrorist organizations. I don't think it's quite so easy to say, "Nothing important has been lost here; it is worth poisoning this well in order to get evidence for a cold-case murder committed 40 years ago."

Oral histories from regular people caught up in events larger than themselves are priceless. There is knowledge, useful knowledge that can have a positive effect for generations, locked up inside these people's heads. Justice is also important, yes. The law is apparently very clear on this, but as for me, it doesn't seem simple or obvious that one is more important than the other in this instance.
posted by jsturgill at 8:47 AM on July 9, 2012 [10 favorites]


It's surprising they thought they could offer it, but to me it's even more surprising they were believed.

It seems totally reasonable to me.

It says in the article that there were both journalists and historians involved in these recordings - the head of the project is described as an "award-winning journalist and authority on the IRA - and the line between journalism, where this protection is and should be preserved, and history is pretty blurry.

The fact that this had to be asserted in an appeals court implies they successfully made their case to that effect in the first round.
posted by mhoye at 8:52 AM on July 9, 2012


I'm surprised that the BC researchers promised confidentiality -- in what way did they think that they could promise that?

They can promise it, and they can provide it. They can provide it even now by simply encrypting the transcripts with a fuck-you big key and refusing to provide that key until the relevant subject is dead. They'll be imprisoned until the courts get tired of them, but they can do it.

In this case, if Moloney promised the respondents unconditional confidentiality in the contracts they signed and he did not otherwise disclose to them that he intended to release their transcripts if subpoenaed, he has a moral responsibility to endure imprisonment for contempt rather then give them up. If he didn't want that responsibility, he should have been more careful and clear about what level of confidentiality he was promising.
posted by ROU_Xenophobe at 9:03 AM on July 9, 2012 [3 favorites]


I would have considered substituting codes for actual names and "losing" the code list.
posted by lathrop at 9:05 AM on July 9, 2012


[Comment deleted; please don't pull in arguments from other threads. ]
posted by taz at 9:07 AM on July 9, 2012


I would have considered substituting codes for actual names and "losing" the code list.
posted by lathrop at 9:05 AM on July 9 [+] [!]


Yes - anonymizing the interviews somehow would have been the right approach.

Would be cool if one of you genius computer people would come up with a way to reversibly/irreversibly anonymize sources, so that they would remain anonymous for a certain time period (say, 50 years) until after the source's death.
posted by yarly at 9:15 AM on July 9, 2012


I was very frustrated when I started travelling within America by the "free pass" the IRA were given.

Every country has its collection of freedom fighters, terrorists and boogeymen, including the UK.

The British government chose to frame the Northern Irish issue in the context of nationalism and religion over politics in order to validate their own repressive behavior. That didn't play very well to an American public that not only celebrates its independence from Britain as the national holiday, but who also boasts a large segment of the population descendant from Irish immigrants whose affinity to everything Ireland transcends generations.

This at the height of the Cold War when the provisional IRA and its political proxies professed pro-Communist ideologies and were in bed with all sorts of notorious terrorists of the time. In retrospect, the British government should've studied the type of PR necessary to win worldwide and not just at home.
posted by jsavimbi at 9:22 AM on July 9, 2012 [4 favorites]


I understand lives could be at danger here, especially of the researchers involved. This influences my views quite a bit.
posted by the cydonian at 9:22 AM on July 9, 2012


College guy should take copy of recordings, hide them in cousins attic then say the recordings were destroyed as his hard drive went bust. Whoops. Wait until historical enquires fuss dies down, then miraculously find them and pass them onto future historians at same college in a few years.

As regards to unpunished crimes, since everyone who as in jail was let out under Good Friday its a touch pointless. A tough pill to swallow but the families still demanding justice should accept that part of the price of the collective peace is that they may individually not get it. The only worthwhile thing left to wrap up The Troubles is find whatever bodies are left buried around the place so the families. Frankly I would much rather they spent the money making giant balls and fake Titanics
posted by Damienmce at 9:31 AM on July 9, 2012 [4 favorites]


They can promise it, and they can provide it. They can provide it even now by simply encrypting the transcripts with a fuck-you big key and refusing to provide that key until the relevant subject is dead. They'll be imprisoned until the courts get tired of them, but they can do it.

Humm. True; I guess if Moloney were really committed to protecting his sources, in the way that some journalists have from time to time been, that would be the thing to do. Provided that the original tapes and all copies are still in his possession such that he could destroy the originals after encrypting them. But it would take some serious commitment; he could without much exaggeration be held out as willingly protecting terrorists. His prison term might be long and unpleasant.

Would be cool if one of you genius computer people would come up with a way to reversibly/irreversibly anonymize sources, so that they would remain anonymous for a certain time period (say, 50 years) until after the source's death.

This is a Hard Problem in cryptography and has been the subject of some research. I think that the seminal paper is still "Time-lock Puzzles and Timed-release Crypto" by Rivest, Shamir, and Wagner (note that Rivest and Shamir are the "R" and "S" from the "RSA" algorithm respectively).

Basically, there isn't any totally reliable way of locking up a digital file for a set amount of time. You can always convince a computer that the date is different than it actually is. What you can do is encrypt a file in such a way that the key can only be recovered by doing some sort of computational task that is difficult to parallelize, and then choose the difficulty of the task in a way that it takes a particular amount of time to complete. But for this to work, you have to make a bunch of assumptions about how quickly computing speed will advance in the future, and also how interested people in the future will be in decrypting the message. It's a tricky proposition, and it becomes much harder as you try and make the "time lock" period longer.
posted by Kadin2048 at 9:34 AM on July 9, 2012 [5 favorites]


I've been following this story on Chris Bray's blog, enjoying his perspective on the issues. Most amusing is his regular flaming of BC's head flack, who seems to have a consistency of message problem.
posted by Kylio at 9:34 AM on July 9, 2012 [2 favorites]


the line between journalism, where this protection is and should be preserved, and history is pretty blurry

As valkryn notes above, there is no U.S. federal protection for journalists against testifying (see this 1972 Supreme Court case, which struck down reporter's privilege), although the majority of states, not just a few, offer some kind of shield law for reporters, most with limitations.
posted by mediareport at 9:36 AM on July 9, 2012 [1 favorite]


Thanks for the link to Chris Bra, Kylio; his take on the "who left the language out" issue is quite different than the impression I got from reading the court decision, which seems to have left Boston College off the hook too easily:

Ed Moloney -- a journalist, not on faculty, hired as a contractor to run a research project under BC's aegis -- supposedly wrote the contracts between BC and its research subjects.

So the claim here, made in the university's defense, is that Boston College funded and sponsored a research project that it then didn't run or manage. The university hired outside researchers to conduct research in its name, calling the researchers employees, but left to these subordinate outsiders the task of framing the relationship between BC and the human subjects of sensitive research.

Trying to defend his university, Jack Dunn hollows its core; his defense is that Boston College conducts research without standards or oversight. It was just, you know, the researchers did their thing, man, and we were just here doing our thing, and like whatevs. Oh, that Moloney guy didn't put that stuff about the legal limits of confidentiality into the contract with the interviewees? Oh, man, maybe we should have had some kind of involvement in that!

Now, look: I don't believe him for a moment, and as Ted Folkman has written ("I should add that I would be surprised if BC would allow a BC researcher to draft a contract that binds the University without putting it through a legal review."), it's an awfully strange thing to claim.

But the striking thing is that this is Dunn's idea of a defense, of a claim that puts the university on safer ground. He doesn't appear to notice the devastating implications of the claim that BC had nothing to do with the relationship between its researchers and its research subjects.


Guess the lawsuits will have to sort it out. Hope there's no violence that comes from this.
posted by mediareport at 9:50 AM on July 9, 2012


This is what Truth and Reconciliation Commissions are for.
posted by aeschenkarnos at 9:58 AM on July 9, 2012


As I understand it, Boston College has copies of the interviews. So, the individual researchers aren't in a position to personally keep them from being revealed.

I understand lives could be at danger here, especially of the researchers involved. This influences my views quite a bit.

That's a legitimate point. Are the authorities in the UK doing anything to protect them. Does anyone know?

Oral histories from regular people caught up in events larger than themselves are priceless.

I think the passive voice isn't appropriate in this instance. The IRA abducted a woman, tortured her (we know her hands were cut off), shot her in the back, buried her in a shallow grave, and spent the following decades threatening her children. These are people who chose to act; they were trying to shape history and were not just "caught up in events."

That said, it may not make sense to prosecute anyone. Maybe there isn't enough evidence. Maybe too much time has passed. Maybe it would be better to just name and shame those involved. I don't know. However, that's not a decision for a court in the U.S. to make.
posted by Area Man at 10:08 AM on July 9, 2012


The only worthwhile thing left to wrap up The Troubles is find whatever bodies are left buried around the place

It's worth noting this news comes hot on the heels of news that a murder enquiry into Bloody Sunday is going to be launched.

Practically, the Saville Enquiry was about as close as one gets to a truth and reconciliation commission in Northern Ireland. It cost £200m. The chances of a new, bigger, enquiry into what went on in Northern Ireland is somewhat remote.

Rather, we are more likely to see a drip of somewhat futile enquiries, given that crimes committed before the Good Friday agreement are subject to a de facto amnesty.
posted by MuffinMan at 10:15 AM on July 9, 2012 [2 favorites]


Here is a copy of the most recent appelate opinion.

Thank you for posting that link. Including the link to the decision should be a standard in any post like this.

I found this interesting:

The Supreme Court in Branzburg stressed that "[f]air and effective law enforcement aimed at providing security for the person and property of the individual is a fundamental function of government." 408 U.S. at 690. "The preference for anonymity of those confidential informants involved in actual criminal conduct is presumably a product of their desire to escape criminal prosecution, and this preference, while understandable, is hardly deserving of constitutional protection." Id. at 691. The court also commented that "it is obvious that agreements to conceal information relevant to commission of crime have very little to recommend them from the standpoint of public policy."

The citing of Branzburg throughout the ruling shows how BCs attempt to equate journalistic confidentiality with academic confidentiality really bit them in the ass. From a Monday morning quarterback point of view it seems like they would have been better off attempting trying to differentiate the two, in particular that the interest of journalists is to present news whereas the interest of academia is to compile clear historical records. At least they could have gone for the public interest in historical fact there.

But then there there was this:

That failure in the donation agreement does not change the fact that any promises of confidentiality were necessarily limited by the principle that "the mere fact that a communication was made in express confidence . . . does not create a privilege. . . . No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice."

Which probably means they were hosed either way.

In any case the decision was an interesting read. It makes me wonder about all sorts of confidential relationships that I've always thought were sacrosanct -- psychologists, priests, even married couples. I definitely would want to double check case law before I relied on those...
posted by Tell Me No Lies at 11:01 AM on July 9, 2012


The change in attitudes towards the IRA, at least the ones I've encountered, within the US has been massive since 9/11. Total about turn. I think rulings like this are a natural continuation of that.

I think you're making a connection that's not there. Or at least ascribing 100% of the change to 9/11 while ignoring the changing relationship between the IRA and England over that same time period. The IRA has gone from being a terror group to a mainly political organization in that span. And another generation of Irish Americans has died off between (say) 1980 and now, so the connections to ancient hurts is still more tenuous. Plus shaking the Queen's hand instead of blowing up her uncle is harder for 16-25 year-olds to get excited about in a bar.
posted by yerfatma at 11:10 AM on July 9, 2012 [1 favorite]


I read the entire First Circuit opinion over lunch, and an interesting point that I think may be lost amidst some of the rhetoric is the tone of Judge Torruella's concurrence, which "reluctantly concur[s] in the judgment". The main opinion pretty quickly reaches a "yeah, this is too bad, but procedurally this just isn't going to work" result; Judge Torruella's concurrence says that there's more to the First Amendment issue (and journalistic privilege issue) than the majority opinion implies, but then goes on to point out that he's bound by already-established and on-point Supreme Court decisions which have already analyzed the balancing test.

According to Judge Torruella, the researchers lose "not because they lack a cognizable interest under the First Amendment, but because any such interest has been weighed and measured by the Supreme Court and found insufficient to overcome the government's paramount concerns in the present context."

Even the majority opinion is pretty cut-and-dry, in observing that a prior Supreme Court opinion is controlling ("The Branzburg analysis...guides our outcome.")

Reading between the lines, it seems that all three judges acknowledge that Branzburg is controlling, but Judge Torruella's opinion seems so much more...human, and regretful that the end result is what it is. Or in other words, it's almost as if he's indicating, "I'd really like to have been able to come out the other way, but my hands are really tied here."
posted by QuantumMeruit at 11:24 AM on July 9, 2012


The changed happened pretty quickly, and the catalyst is the Good Friday Agreement (1998).

To put this in context, even in Kilburn in London, you could find people as late as 1997 soliciting donations for Irish "prisoners of conscience" in Irish pubs.

But 9/11 did seal things. Sort of. It changed perceptions of what terrorism and who it affected. But the timeline goes like this: in August 2011 three suspected IRA men were arrested in Colombia, 9/11 happens, and Bush specifically includes Irish republicanism in his sights for cutting terrorist funding.

It doesn't have so much to do with a changing of the guard. Within the space of one year supporting NORAID becomes politically untenable, legally difficult and increasingly irrelevant.
posted by MuffinMan at 11:32 AM on July 9, 2012 [1 favorite]


That's sort of the point.

So... investigating forty-year old murders is how we're supposed to deter future terrorist acts?
posted by valkyryn at 10:45 on July 9 [+] [!]
Yes, it is -- because it demonstrates the rule of law. If there were an applicable amnesty, these men would not be subject to prosecution. They have told another party of their involvement in criminal acts; that record may now be used in a criminal investigation. An academic in the US does not have the right to decide that some who have committed crimes will not be pursued within the means of the criminal justice system of the United Kingdom.

Forty years is too old? What about thirty. What about five? What's a good point to stop pursuing justice? 3,954 days? How do we choose? If you vote no and I vote yes, what happens then?

These men are subject to justice and must answer for their actions, because they are men like any others, and are not above the law. To that end, you may indeed protect a civil society by insisting that it adhere to its legal code.
posted by samofidelis at 12:13 PM on July 9, 2012 [1 favorite]


I think the passive voice isn't appropriate in this instance. The IRA abducted a woman, tortured her (we know her hands were cut off), shot her in the back, buried her in a shallow grave, and spent the following decades threatening her children. These are people who chose to act; they were trying to shape history and were not just "caught up in events."

Then I'll be active about it: these particular people are, as far as I understand, no longer terrorists. Their oral histories are incredibly valuable, they pose no further threat to society, and the people they killed 40 years ago will remain dead even if their killers spend the rest of their lives in jail. That is an incredibly harsh way to put it, but it's true: there is no restorative justice possible in this situation. The losses experienced will continue to be felt no matter what else happens here.

The IRA members were "caught up in events" not in the sense that they did not have control over themselves and their actions. I do not mean to imply that they are not culpable for morally responsible. What I mean is that, as I understand it, most people who commit acts of violence and terrorism, including torture, are generally cognitively normal.

The percentage of human beings who will categorically refuse pressure to torture, kill, abuse, molest, rape, maim, or otherwise harm others on behalf of their country, church, or peer group is very much in the minority. Hearing these people talk about who they were and why they did what they did is hugely valuable in that it humanizes their violence, provides context and details to an organization and way of life that is somewhat murky, and may even allow future generations to understand how they can act to limit cycles of escalating violence.

I think there's a very real chance that the value of their oral histories is much more than the value of whatever justice can be found now, 40 years after the fact.
posted by jsturgill at 12:22 PM on July 9, 2012 [6 favorites]


Forty years is too old? What about thirty. What about five? What's a good point to stop pursuing justice? 3,954 days? How do we choose? If you vote no and I vote yes, what happens then?

Statutes of limitations are things. There isn't one that applies here, and the question is, as you say, thorny, but the concept is sound and widely established in many countries' legal systems.

It's not unreasonable to say that there should be a statute of limitations for serious violent crimes. It's not unreasonable to disagree, either—but don't pretend that the concept is utterly alien or unable to be resolved. Courts and legislatures exist exactly in order to hash out those sorts of questions.
posted by jsturgill at 12:27 PM on July 9, 2012


It's not unreasonable to say that there should be a statute of limitations for serious violent crimes. It's not unreasonable to disagree, either—but don't pretend that the concept is utterly alien or unable to be resolved. Courts and legislatures exist exactly in order to hash out those sorts of questions.
posted by jsturgill at 14:27 on July 9 [+] [!]
It is certainly the case that they exist in part to deal with such issues, but that is not the question at hand. Instead, an individual or group of individuals wish to withhold information that the justice system wishes to obtain, possibly to prosecute a third party for criminal acts. The researchers at BC do not have the right to make this decision. Indeed, the courts and legislatures have already hashed out this question.
posted by samofidelis at 12:35 PM on July 9, 2012


It is certainly the case that they exist in part to deal with such issues, but that is not the question at hand. Instead, an individual or group of individuals wish to withhold information that the justice system wishes to obtain, possibly to prosecute a third party for criminal acts. The researchers at BC do not have the right to make this decision. Indeed, the courts and legislatures have already hashed out this question.

Exactly. The legal issue is resolved, and it apparently wasn't even a close call.

It seems like you're implying that's the end of the discussion, but really that's just the beginning, covered by the OP. We can still talk about whether the decision was correct in other senses that have nothing to do with the relevant laws, or we can discuss what ramifications the decision will have regardless of our other thoughts about it. Or we can talk about the value of oral histories, or terrorism, or justice, or statutes of limitations, or the Troubles, or whatever related thing seems to come up organically as we go along.
posted by jsturgill at 12:45 PM on July 9, 2012


Then I'll be active about it: these particular people are, as far as I understand, no longer terrorists. Their oral histories are incredibly valuable,

These two arguments really have nothing to do with each other. The value of their oral histories is extremely high and deserves some protection. That does not mean that the individuals should not be pursued and brought to justice -- at most it argues that their oral histories should not be available to be used against them.

The state has an interest in holding people accountable for murder no matter how much time has passed, and IMHO these people should be pursued and visibly punished to the extent of the law. This is not mutually exclusive with their providing a historical record if that record was safe from being dragged into court.

That's why I said above BC would have been better off trying to differentiate academic confidentiality from journalistic confidentiality. Journalistic confidentiality is often breached on the basis that reporting news is not sufficiently important to outweigh the justice system. A better or at least different argument can be made for historical record.
posted by Tell Me No Lies at 12:47 PM on July 9, 2012


Jean McConville's daughter says she wants to know why her mother was killed. One of her sons says he wants those responsible to be shamed.

I understand there is some real value in oral histories, but at this point there already are several such transcripts, and I don't believe the marginal value of additional oral histories is more important than allowing these people to have what they seek. They have already been forced to bear an incredible burden. Not just their mother's torture and death, but also the lies, the years of threats to them, and the continued secrecy about what exactly was done to her and why.

Also, I think there is some independent value in shaming those responsible for horrible war crimes.
posted by Area Man at 2:39 PM on July 9, 2012


I'm surprised that the BC researchers promised confidentiality -- in what way did they think that they could promise that? Did they think about running that promise by a lawyer? It seems like they were either irresponsible or dishonest in promising that they could maintain the subjects' confidentiality, unless there's something I'm not understanding.

I imagine they thought they would receive something similar to journalistic privilege. I'm still kind of confused as to why they don't. Isn't it roughly the same thing?
posted by corb at 4:19 PM on July 9, 2012


I imagine they thought they would receive something similar to journalistic privilege. I'm still kind of confused as to why they don't. Isn't it roughly the same thing?

Because "reporters' privilege" isn't a thing. Some but not all federal circuit courts have recognized some kind of qualified privilege, and most of the states have enacted some kind of shield law, but Massachusetts isn't one of them. But this isn't an issue of state law anyway, so even if there had been a state shield law, it might not have mattered. But the Supreme Court held in Branzburg v. Hayes that there is no First Amendment reporters' privilege.
posted by valkyryn at 4:49 PM on July 9, 2012 [1 favorite]


As already said above, it wouldn't matter as journalist privilege doesn't exist in the US.
posted by Jehan at 4:50 PM on July 9, 2012


Then I'll be active about it: these particular people are, as far as I understand, no longer terrorists. Their oral histories are incredibly valuable, they pose no further threat to society, and the people they killed 40 years ago will remain dead even if their killers spend the rest of their lives in jail. That is an incredibly harsh way to put it, but it's true: there is no restorative justice possible in this situation. The losses experienced will continue to be felt no matter what else happens here.

I think this argument works for the Weathermen, say, but not so much for the IRA. Somewhere along the line, a few orders of magnitude of bloodshed have to matter a bit.

The linked article also mentions that McConnville's family believes Gerry Adams may be concretely tied to the IRA in the oral histories. I won't profess to know enough about Northern Irish politics to know if this would matter, but surely he'd lose the moral high ground he has a penchant for claiming in his seemingly annual comment piece for the Guardian.
posted by hoyland at 9:33 PM on July 9, 2012


I actually think this is an instance of Newcomb's paradox. Everyone who is saying that they now want to use these documents to prosecute people is, in effect, choosing both boxes. Sure, they understand that, if the interviewees had predicted this use of the documents, they wouldn't have agreed to be interviewed. But hey, they've already put the money in the boxes -- might as well take both. (To be more precise: this is, in some sense, Drescher's transparent box version, except that actually we don't know if the documents contain evidence).

Drescher believes that we ought to take only one box -- and that we even ought to do this in the transparent box case. One piece of his argument is that when the predictor is trying to figure out what you will do, one strategy they might use is to simulate you (in some level of detail). You don't know if you're the real you or the simulation, which gives you a reason to only take one box even though you can't change the past.

Sure, we might get the benefit of both boxes (the history, the resolution of the murder case) this time. But the next person who goes to tell a historian anything about their crimes will surely look at this case as a simulation of what the government will do. And so there are more future crimes that we will never any get resolution to.
posted by novalis_dt at 11:43 PM on July 9, 2012 [1 favorite]


But the next person who goes to tell a historian anything about their crimes will surely look at this case as a simulation of what the government will do. And so there are more future crimes that we will never any get resolution to.

Except that if we keep the tapes privileged, we won't get resolution for this crime or any future ones.
posted by valkyryn at 2:48 AM on July 10, 2012


Except that if we keep the tapes privileged, we won't get resolution for this crime or any future ones.

We'll know. That's a resolution.
posted by jsturgill at 7:33 AM on July 10, 2012 [1 favorite]


It may be resolution to you, but I'm not sure that would count as resolution to the families of victims.
posted by OmieWise at 8:06 AM on July 10, 2012


As someone from England who grew up with a background fear of bombings (two cities, Warrington and Manchester, were bombed on days I happened to be in them) I was very frustrated when I started travelling within America by the "free pass" the IRA were given. Recall that more or less open fund raising was going on in the US at the same bombs were going off in the UK.

Disclosure: My father was in the IRA back in Ireland in the 1940's and was somewhat involved in local groups until the latter part of his life. His frustration and that of many sympathizers with the IRA was that no one on this side of the pond knew about groups like the UDA, know about how many of the police in the North moonlighted with the loyalist paramilitary groups, how irish catholic neighborhoods were terrorized during marching season, the "any taig will do" campaigns, how catholics who lived in protestant neighborhoods had their houses firebombed, how it was nearly impossible for an irish catholic to get a job in the protestant-dominated manufacturing and shipping industries at that time. There was a sense that the British army was doing little more than propping up the loyalist paramilitaries against the irish catholics; as a result, people backs were up against the wall, and all they had left was fighting back with any means available to them. His views changed in the latter part of his life to wanting some sort of peaceful resolution; unlike a lot of 2nd + generation Irish-Americans, he didn't think it was some glorious action movie in real time.

I spent time in Ireland during the troubles, and I agree: the glee with which some folks advocated for the bombing campaigns was horrifying. When you've stood ankle-deep in broken glass from the last bombing, when you are prevented from going about your daily life because a bomb threat has caused the city center to be closed, when you hear about all of the death, you just want it to end.
posted by echolalia67 at 8:35 AM on July 10, 2012 [3 favorites]


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