What follows is a personal, partial response to the Boston College Troubles Subpoena, which you might also call the Boston College Subpoena Troubles….I am not involved in this case and have not read all the pleadings much less everything else that’s relevant, so these thoughts are preliminary and somewhat provisional. I’ll be working on a more comprehensive article. For now, if I seem unsympathetic to the “right side” (oral historians and archivists), it’s because I think that they messed up, to everyone’s detriment.
For the actual legal pleadings and transcripts, a detailed blow-by-blow, and many other (more informed) perspectives, study the Boston College Subpoena News. Coverage by the New York Times and Irish Republican News is also illuminating.
1. The Troubles come to Boston – a version so short as to border on irresponsibility
Over the course of several years, two men — Anthony McIntyre, a former member of the Irish Republican Army (IRA), and Ed Moloney, a journalist — conducted interviews with members or former members of the IRA concerning their activities during “The Troubles,” a period of civil unrest that often took the form of armed struggle.
MyIntyre and Moloney promised their interview subjects that the interviews would remain confidential until the interview subjects’ deaths. Apparently, the agreement did not specify that all interviews would remain confidential until everyone died; rather, each interview would be embargoed only until its individual narrator died (* this measure of time itself causes problems — but that’s another topic). The researchers deposited the interview materials with Boston College. Last year, the British government asked the U.S. to help it obtain the documents, citing a treaty in which the nations promised to assist one another in law enforcement.
There are a lot of oral historians horrified by the possible chilling effects of any court ruling that would force Boston College to comply with a subpoena from the British government to turn over interviews of former members of the Irish Republican Army. Boston College initially resisted the subpoena, and Judge William Young of the US District Court for Massachusetts used that initial resistance in reasoning that the college could adequately represent the McIntyre and Moloney’s interests. The judge refused to let the two researchers intervene in the case.
The ruling that McIntyre, Moloney, their friends and family, many of their narrators, and many oral historians feared came in December 2011. As the BBC reported,
“A US federal judge has ordered Boston College to turn over recorded interviews of a former member of the IRA to federal prosecutors in Boston…US federal prosecutors subpoenaed the material on behalf of British authorities. It is understood the legal bid is linked to a PSNI [Police Service of Northern Ireland] investigation.
“What was termed the ‘Belfast Project’ took place over five years from 2001 and involved academics, historians and journalists conducting interviews with former republicans and loyalists about their activities during the Troubles.
“In return for honest accounts, those who were interviewed were promised that their identities would be kept confidential and that the interviews would be released only after their deaths.
“US prosecutors have demanded anything in the college archive related to the 1972 abduction and murder of Belfast mother-of-10 Jean McConville, who the IRA admitted to killing and secretly burying, claiming she was an informer (“Boston College must hand over Delours Price interviews”).”
Boston College did not appeal the December decision, a decision that upset, among others, McIntyre and Moloney. M & M appealed both their exclusion from the legal proceedings and Young’s substantive ruling. Then in January, Judge Young issued another order, telling Boston College that it would need to hand over transcripts of another seven interviews within three days of the appellate court’s decision. Boston College balked at this later order, and appealed.
The British government believes that the tapes contain information about a murder. There is no statute of limitations, in Great Britain as in the U.S., against murder. So it’s likely that if such material exists and becomes available to law enforcement, and if the material contains admissions of guilt, or details about intentional deaths, the government could use the interview transcripts in prosecuting narrators or others. Some people expect that the interviews will contain damning evidence against Gerry Adams, Sinn Fein leader.
Of course McIntyre and Moloney don’t want either themselves or anyone else to be in physical or legal danger because of their project.
Attorney Eamonn Dornan spoke on behalf of McIntyre and Moloney as the First Circuit Court of Appeals listened to arguments on April 4th. Dornan cited the likelihood of physical harm to both M & M and to participants in the project. Dornan also warned that the district court’s rulings could have a “chilling effect” on other academic projects.
Mary Larson, President of the Oral History Association (OHA) and Doris Neustadt Professor of Library Service and Head of the Oklahoma Oral History Research Program at Oklahoma State University, agrees that “..all of us in the oral history community are afraid” that a court order to release material that interviewers and narrators agreed would remain confidential “is going to have an incredible chilling effect on what we’re able to do” (O’Brien).
I’m all riled up, too. Despite my work as an oral historian, support of liberation struggles, and a steady childhood diet of hefty Irish Catholic propaganda, I’m not disappointed with the British government or the PSNI. Law enforcement officials investigate murders, even “cold cases,” and they certainly pursue the people they believe to be criminals, murderers, and terrorists. Courts are more likely than not to grant these agencies the information or potential evidence they seek.To imagine that the British wouldn’t attempt to obtain interviews that contained potentially incriminating evidence would be something like expecting a branch of mesquite to act like a polar bear.
Maybe you’re not that excited about prosecuting people for actions,even violent actions, that are several decades old, that people took during what they saw as a liberation struggle or civil war. Maybe you are far more sympathetic to the IRA than to the British government. I can see that. (I hesitate to wade into a thick swamp of history I don’t fully understand. Acknowledging my ignorance, however, I do wonder how prosecutions could be useful or productive at this point.)
But this legal wrangling is not simply between innocent interviewers and trusting former warriors who’ve since turned their swords into plowshares, on the one hand, and overreaching law enforcement officials hungry for prosecution.
Consider the bereaved people who want to know what happened to their loved ones. Truth and reconciliation commissions are controversial for numerous reasons, including that many people believe that truth is not enough. But these naysayers agree that truth is at least necessary, though not sufficient, for some kind of emotional justice. The desire for “truth” (or a reasonable facsimile thereof) is as great or greater than the quest for vengeance.
The interviewers, it seems to me, were negligent or naive. Boston College, however, ought to have known better. There was no basis for either the interviewers or Boston College administrators to promise that they could keep confidential interviews that would necessarily be of great interest to British law enforcement.
This debacle infuriates me because it was so preventable. Thoughtlessness and incompetence, apparently by multiple actors in the process, produced this controversy. I’m also riled up about special pleadings for academic research projects. More on those dangers in another post. My purpose here is not to predict the eventual outcomes of this controversy, nor to opine on what the law should be. I want to focus here on prevention, and what I’m about to say is in no way legal advice. It’s common sense.
2. ”One of these things is not like the others” - a short version
spouse, priest, oral historian, psychiatrist, attorney
I’m going to oversimplify a little bit here: You have the right not to testify in a court of law against your spouse. If you are a Catholic priest, secular law does not require you to reveal what someone tells you in confession, and canon law prevents you from doing so. If you’re a psychiatrist, you’re obligated to report and thus, one hopes, prevent specific acts of violence that you have reason to believe are in the works, but not to reveal a patient’s past crimes (what’s done is done). And what a person says to her lawyer is privileged, as long as she hasn’t conducted the conversation in the presence of other people. These are recognized privileges. And to some degree, journalists are somewhat protected, sometimes, in some jurisdictions.
You must remember this: There is no such thing as an oral history privilege. There’s no such thing as an oral history privilege. There is no such thing as an oral history privilege.
Private and/or confidential communications are not the same as privileged communications.
3. Avoid the troubles – a short version
Narrators: don’t reveal in the interview anything that you wouldn’t want subpoened.
Interviewers: advise narrators and make sure they understand the risks of divulging particular kinds of information.
Any one of us could guarantee that we would individually honor confidentiality; any one of us could individually promise that we would be willing to risk contempt of court to protect an interview. But most of us don’t work alone, and can’t possibly guarantee that every colleague (past, present, and future), staff member, intern, volunteer, video editor, board member of a project, librarian, archivist, university official, landlord or administrator of whatever umbrella we might be working, would also refuse to honor subpoenas for the sake of the narrator’s expectation of privacy.
Who will get hurt if the interviewer promises a narrator confidentiality, and she talks freely to you on that basis, but then you die or get fired and your successor or former employers decide that they don’t have to respect the narrators’ privacy, or aren’t as scrupulous as you are about it? In the IRA case, the people who will get hurt may include McIntyre and Moloney, their narrators, and other people as well. (Whose story is it?) More typically, though, the interview narrator would be most hurt: the person to whom we, oral historians, are most clearly responsible.
Do you really think that the bankers will care if courts force them to turn over the contents of your safety deposit box?
Be especially careful that your narrators not discuss on tape, without full knowledge of the risks (even risks that other people may deem “paranoid”), any of the following:
a) Crimes without a statute of limitation or crimes against children
Murder has no statute of limitations. The statute of limitations for some torts (civil harms) or crimes against children may not start until the abuse or damage is discovered.
If your interviewers want or expect confidentiality, you had better make sure you can provide it. You are assuming an extra ethical and moral obligation. You can’t protect material you no longer have control over, and you don’t a whole lot of control over something that is digital or material. If you promise confidentiality, and your narrators start to tell you about crimes or actions (whether you think they’re “criminal” or not) for which the narrators could still be held responsible, turn off the tape recorder.
Turn off your camera. Listen. And then be quiet.
Don’t write a book. Don’t make a documentary.
Don’t tell other people who you’ve interviewed.
(EXAMPLE OF A NOT-GOOD IDEA: Hey, everybody! I interviewed fifty of my best female friends who bring guns to disputed territory in the Middle East and were involved in the assassination of some VERY important people. But don’t worry, we agreed to keep them locked up — they’re safe and sound at my alma mater, or at the Sophia Smith collection.)
Use some common sense.
b) Ongoing criminal activity of the narrator — or others?
Let’s say you’re interviewing a guy about a tragedy that happened in some rural county. In the course of this story, he tells you that his uncle sells (not just used to sell) firecrackers not only outside of the city limits right around July 4th, but also from a particular gas station just east of where a certain highway crosses the county line.
What will you do if you or the narrator thinks this information is crucial to the story?
What will you do if you or the narrator thinks this information is not crucial to the story?
Does it matter if the sales are of dynamite, not just Smiley Face Rockets? Does it matter if the uncle is selling cocaine? Or just marijuana? What if the uncle is selling alcohol in a dry county?
Does it matter if you or the narrator thinks that it’s ridiculous for the sale of that product to be illegal, that it’s no big deal? Do you owe a responsibility to the person identified in the interview to prevent his arrest for the alleged sale of tobacco to minors? Who hasn’t had her elevator inspected in a couple of years? What is your role?
Once an interview narrator told me, as a matter of course, about ongoing criminal activity. Let’s call it his uncle’s out-of-season deer hunting. It wasn’t crucial to the interview (in my opinion). Illegal deer hunting didn’t seem like a huge deal to me, and more to the point, it didn’t matter what I thought. Since I was rather new at the interview process, I didn’t even notice any ethical question at the time we were recording. Only as I was proofreading the transcription did the words jump out at me.
I highlighted the incriminating part and, sending the transcription for the narrator to review, asked the narrator if he wanted to publicly talk about his uncle’s hunting habits. Are you trying to turn your uncle in? Are you indifferent to what may or may not come about? If not, you might want to take this part out of the interview. The narrator agreed and we redacted the interview, at least for the present.
This decision was somewhat controversial within my office. Colleagues argued that we should not “censor” any narratives. I have very mixed feelings on this point, which I’ve discussed elsewhere. For now, it’s enough to say that although I see our primary responsibility as oral historians as to our narrators* (would I feel the same way were I to interview Nazis?) I do think we also have some responsibility to other people as well (especially people in a role comparable to “innocent bystanders”). Certainly one IRA or former IRA member’s disclosures have the potential to affect other people.
Of course, there are bad laws we may be happy to break, or are proud of having broken. Queer people in the U.S. no longer need to fear prosecution for “sodomy”: specifically Section 21.06 of the Texas Penal Code. Mis querid@s buddies at ADAPT of Texas sometimes engage in civil disobedience, a form of direct action, as one of several strategies to achieve justice for people with disabilities. ADAPT is as proud of its civil disobedience as it is of its work educating media and wonky-ness: advocating for just legislation, rules, policies, enforcement, and implementation.
So I’m not saying people shouldn’t talk about any illegal activity. I’m certainly not saying we shouldn’t interview folks who don’t follow rules. I’m just reminding those of us who work for human rights — and who thus may count ourselves, and many of our friends, colleagues, and narrators, among the rule-breakers — that we take care.
I’m also not saying that we should intimidate or scare potential narrators. I’m saying we should talk to each other as adults. I’m saying we should be aware of and realistic about what we are playing with. We must make sure our narrators always understand all the risks.
It’s an ugly world, and one that will inflict the law more harshly on some people than on others. The fact that some people are structurally more vulnerable than others should make all of us cautious. What methods and strategies will work for the least privileged among us?
If you interview anyone in the US who is not a citizen, even if the person has been a legal permanent resident for most of her life, you need to guard against that person unknowingly or accidentally making statements (that prosecutors will view as “admissions”) that subject herself to exclusion, deportation, or removal. (Exclusion and removal are the current terms, but few people other than immigration lawyers use “removal,” so make sure you use the more common term “deportation,” too.)
Depending on the nature of your project and the subject of your interview, you may or may not know whether your narrator is a US citizen. Don’t assume you know; neither should you be overly intrusive. Asking about immigration status — or even birth place — can be a very intrusive and threatening question.
Also, don’t assume that anyone else is giving you accurate information about the person. As recently as this week, smart, experienced lawyers speaking at continuing legal education seminar I attended used the terms “immigrant” and “undocumented immigrant” interchangeably; they also confused “legal permanent resident” with “citizen.” And I’ve never heard anyone use the term “illegal alien” to a Canadian or European student who has overstayed his visa; many people seem to reserve the phrase for Latina/os.
Don’t assume that a past drug conviction that means nothing in your life will have the same meaning or effect in the life of your best friend who is a legal permanent resident. Don’t assume that some irritating bureaucratic story about a mix up with divorce pleadings — a incident that might be funny in retrospect to you — would mean the same thing to someone else. An immigrant who in good faith marries believing that her divorce was finalized thirty years ago might face removal or deportation for bigamy.
The most cautious approach would be to advise every potential narrator to either avoid admitting to any grounds of immigration inadmissibility, OR to advise the narrator, your colleagues, and anyone else who knows about the interview to keep their mouths shut that an interview with that specific person has taken place, or, if public, that it’s been redacted.
I am thinking that we might want to create a checklist similar to those distributed by blood and plasma centers, or at medical offices. Here’s a list of conditions. If any of them apply to you, be careful before you talk about them on tape!
* Another tip to protect immigrant narrators: don’t ask for anyone’s birthplace on your consent form. Granted, there are multiple Virginia Raymonds in the world. Perhaps one too many. But there are other ways to distinguish between them. Ask for the narrator’s mother’s name. Don’t ask for information that could cause a narrator problems later on. This mean world can be especially mean to immigrants. Obviously, you don’t want to call attention to immigration status by asking some narrators about their place of birth and others about their mothers’ names. Use the same form for everyone. Don’t ask any questions on a routine basis that will create difficult situations for some. This piece of advice is consistent with the suggestion to avoid directive questions in favor of requests to “tell me about…”.
d) Disputed facts that are relevant in some legal proceeding (including civil proceedings) that matter to the narrator
In a past life, I interviewed someone who had a role in a case that seem to be resolved in the most important sense. My colleagues and I transcribed the interview and sent it to the narrator and were a little bit disappointed that we received no response: not a correction, not a redaction, and not a refusal to donate the materials. Just nothing. Under the terms of our agreement with the person, we couldn’t do anything with the interview, which I’d found extremely interesting.
Then the case that I thought was over blew up into shards of ancillary — but important – legal proceedings. It became clear that interview we had conducted would have been not merely interesting, but pertinent to fact-finders. What a relief that no one associated with the interview had blabbed that the interview had even taken place. We would have been subpoened in a Dallas minute. Or a heartbeat. Pick your metaphor.
Lots of things that may or may not be significant to other people might become relevant during divorce or child custody or child support hearings. The health or cognitive functioning of a recently deceased person, or the nature of that person’s relationships with others, may not be big news, but might matter in a disputed estate battle. We can’t predict everything that might be important later on to resolve some conflict. That’s okay. The point is not to become insurance dudes and dudettes who try to not to simply manage risk, but actually eliminate risk (thank you to Cynthia Biggers for that insight).
The point is to enter oral history relationships with everyone’s eyes open.
The point is not to make promises we can’t keep.
We also need to speak in the active voice. Exclusively in the active voice. Not “your confidentiality will be protected” but “I will not…” or “I will.” The problem with the passive voice, obviously, is that there is no accountability. “Interview subjects are promised..” [by whom?] “that their interviews will not be shared…” [by whom?] No accountability, no deal.
**
The cautious approach I am recommending would mean, among many other things of course, that oral history projects revisit and rewrite what they tell potential narrators about possible risks. Discuss worst-case scenarios with your colleagues; with the custodians of your interview transcripts and tapes; with your narrators. Make plans for worst-case scenarios, and put your agreements in writing.
You might think this advice is overcautious. Given some experiences with interviews at my last job, I am just glad we didn’t blab about not-yet-public-interviews. I’m glad we withheld some interviews and redacted others. We did a good job.
But given the attention to the Boston College case, and given that human rights or social justice oral history projects frequently are talking about immigration, civil disobedience, armed conflict, or the criminal justice system, the better practice would be to emphasize the difference between confidentiality and privilege not just orally, but also in writing. Identifying, in writing, these risks should also remind interview teams to go over these risks more seriously than they might otherwise. (Of course, if you have interviewers who laughingly convey, while going over the consent process, the idea that it’s all “just paperwork”/stupid bureaucratic demands, then you’ve undermined the consent process at everyone’s peril.)
Having the exact same process for every narrator will save interviewers from making judgment calls about who to warn and who not to warn, or feeling embarrassed. Everyone should get the same warning.
What should happen with the interviews at Boston College?
I don’t know.
You might be thinking, what about journalists: aren’t they allowed to keep their sources confidential? Good question, though not one I’m prepared to discuss at present.
For now, I’m worried about language that praises the Belfast Project as “bona fide academic exercise of considerable intellectual merit” (Judge Young). It’s not that I don’t think the Belfast Project had intellectual merit; it was (and is) incredibly important. It’s that I shudder at the thought of federal courts getting to decide what kind of research projects are intellectually worthy. I shudder at the thought of courts approving oral history privileges for academic projects only. I hope that other non-academically based oral historians are shuddering too. I hope that academic researchers don’t accept special privileges for themselves, while leaving grassroots or non-institutionally affiliated researchers behind. Professor Larson seems to include all of us when she invokes “the oral history community”; nevertheless, we can’t take for granted that everyone will share this generous attitude.
We can do more than hope: we can insist that the First Amendment applies to all researchers, whether or not they or their intellectual projects are funded by academic institutions. The ACLU is advocating for the rights of academics. It’s our responsibility to make sure that such advocates include everyone.
In the meantime, I’m going to follow Gramsci’s recipe: Pessimism of the intellect, optimism of the will.
See:
a whole series of New York Times interviews
Denise Levoie, “Appeals court hears case of secret IRA tapes,” Houston Chronicle, April 4, 2012
“Mark Phillips, “Oral history of N. Ireland Strife raises a dilemma,” CBS News, February 9, 2012
Copyright 2012 Virginia Raymond