Thursday, May 3, 2012

BC Files Appellate Brief in Belfast Project Case

Here's the brief Boston College filed today in its appeal of a portion of the Belfast Project subpoenas. I have limited time to write about this, because a dissertation is calling my name, but it seems to me there are some extremely strong arguments here. Unfortunately, those strong arguments appear alongside some tendentious and untenable representations of fact.

See especially the extraordinary footnote on pg. 7, which suggests that Dolours Price waived the confidentiality of her interview materials by speaking to a reporter about the murder of Jean McConville and about the fact that she had done interviews with academic researchers. Price's public statements, the brief argues, "indicated that she was not seeking to protect the confidentiality of her Belfast Project interviews." Boston College is claiming that human subjects can waive research confidentiality indirectly and informally, not just by directly and explicitly notifying researchers and archivists that they no longer wish to have research materials protected from disclosure. That's a hell of a claim, and you can expect to see it attacked by other academic researchers.
Bc Brief May 3 2012


  1. Boston College's lawyer says that Dolours Price made "public statements"admitting that she had given interviews to Boston College and that this indicated that she was no longer prepared to protect the confidentiality of her interviews.

    My question is a simple one: exactly which statements are these? As far as I know Dolours Price has made no public statement about her involvement with BC and has never been quoted saying that to anyone anywhere, to journalist, lawyer, newspaper or whoever.

    The only reference to her having a connection to Boston College came in a Belfast Sunday tabloid article that appeared in February 2010. The article, in the Sunday News, had this to say: "Price, who has made taped confessions of her role in the abductions to academics at Boston University (sic), will relay this information to ICLVR (Independent Commission for the Location of Victims' Remains) investigators later this week."

    That is all there is. A bald statement (which manages to name the wrong university) based on what? Where are Dolours Price's quotes? Where is the evidence for this claim? Where does this information come from? The reporter, Ciaran Barnes, does not say even though he claims to have listened to tapes stored in the vaults at Boston College. It seems to me quite extraordinary that in a legal case as important as this that claims are being made about what Dolours Price said with absolutely no evidence to back them up.

    BC's lawyer goes on to say: "(Dolours Price) provided much of the information about her role in the IRA and the disappearances of individuals, including Jean McConville, in public interviews".

    Excuse me, but exactly which public interviews were these? If the reader wishes to check here (see: ) or here: ( ), not one IRA action allegedly ascribed to Dolours Price is backed up by as much as a single quote. The two articles allege that Dolours Price made admissions about Jean McConville's disappearance and cite taped interviews she made as the source. So, where are the quotes from these taped interviews, supposedly made by her in conversations with Anthony McIntyre? If she told McIntyre these things then why not quote her? A simple question to ask, a simple demand to make and most journalists would regard their work as unworthy of publication if it wasn't backed up by such quotes or equivalent convincing evidence. But the single defining and damning feature of the newspaper articles upon which this whole subpoena saga has been based (and which in turn Boston College's lawyer bases his and the college's desertion of Dolours Price) is that there is not a single quote anywhere to back anything up, not a shred of evidence that she said anything to McIntyre about Jean McConville or anyone else "disappeared" by the IRA in the early 1970's.

    If the New York Times or the Boston Globe were presented with such stories their editors would correctly reject them as being a series of unsubstantiated assertions and they would be spiked. Yet here we have a protracted and expensive legal process which could have devastating consequences for many of those involved which is based upon newspaper articles that carry no quotes nor any evidence of any meaningful sort to back up what they publish. If it wasn't so serious it would be laughable!

  2. Ed, a very important comment, and much appreciated. I'll invite BC's press office and lawyers to respond, however unlikely that is.

    Going further, say for the sake of argument that all of your conditions were met: Dolours Price made specific comments in public about the McConville murder and the BC tapes, and those statements were precisely described and documented. Would that constitute a waiver of confidentiality? The answer is still no. The promise a researcher or an archivist makes to a research subject to hold interview material confidential requires a direct, explicit waiver. This idea of an implicit and indirect waiver is ridiculous under any circumstances. These claims will be remembered.

    1. Additionally Cris I would proffer as I understand it she is mentally unfit thus probably unreliable and both her and the family were induced under knowingly false pretenses to make any comment. I would suggest that it should be inadmissible arguably by evidentiary standards? Although I'm not readily familiar with MA evidentiary law. In my experience it would be inadmissable as unreliable if they ever produced the actual evidence.

  3. Part One:

    Boston College’s written brief to the appeal court badly needs to be put in context and we should remember a very important feature of this action: that Boston College is appealing against a judgement which it did most to bring about in the first place and that the one thing that it is not doing is to challenge the district court’s substantive decision that the interviews in the Belfast Project archive should be handed over to the PSNI in Belfast.

    Boston College announced this “appeal” in late February after weeks of unrelenting media criticism for fleeing the field of battle in the wake of the District Court decision against us, leaving myself and researcher Anthony McIntyre to struggle on alone against huge odds. Here was a prestigious and enormously wealthy college abandoning its former researchers and research subjects to a lonely battle whose worst outcome could be devastating for them. With barely a shrug BC had ditched its promise to stand by its pledge of confidentiality given a decade earlier to the researchers in Belfast. By February there was a whiff of rotten cabbage about Boston College. As public relations disasters go, this was as bad as it could get.

    So when the college announced in February that it was now going to appeal Judge Young’s decision in the District Court, the initial reaction was euphoric. One email to myself from a supporter captured the mood: “Yahoo!”, it read. That mood lasted about twenty-four hours. It soon became clear that BC had no intention of appealing Judge Young’s decision to hand over the interviews. The college’s appeal would be limited to the scope of Young’s decision since the venerable judge had decided that even though some interviewees had barely mentioned Jean McConville, the reason for the subpoenas, their interviews should be handed over. And in the case of those who had given McConville greater mention all of their interviews, including interviews entirely unconnected to the alleged British Army spy, should be handed over.

    So what appeared to be a major U-turn by BC soon turned out to be much less. A cynic might even say that the move was a classic piece of public relations trickery, designed to deflect media criticism while really doing very little in terms of significance. I compared BC’s “appeal” to a condemned man arguing with the hangman over the length of rope he planned to use on the gallows.

    At the same time there is no doubt that Judge Young’s decision was an outrageous one and if BC’s “appeal” succeeds in diluting it then so much the better. But the irony of all this is that if BC’s academic staff had played with anything like a straight bat during the hearings in front of Young, the judge would not have been able to make the decision he made and BC would not have had to take it to the appeal court.

  4. Part Two:

    Here’s why. When Young ruled back last December that the interviews should be handed over to the PSNI, he asked Boston College to review the interviews in the archive and come back to him with those that made reference to Jean McConville. Had Boston College acted on this, they could have minimized the damage to the archive by limiting the portions to be surrendered.

    But instead Burns Librarian, Bob O’Neill, who has charge of the archive made an astonishing claim to the judge. He had never read the interviews, he said, so he wouldn’t know where to start or which interviews to read. So sorry, your honour, Bob O’Neill cannot help the court. I will be careful in my language here but let’s say the truth and this claim by O’Neill are complete strangers and if myself or Anthony McIntyre had made such a claim we’d probably end up on a perjury charge. I know that O’Neill did not tell the truth because over the years he and myself had many discussions about the contents of interviews and I have emails from him discussing interviews that he has read. For him to claim that he was so unfamiliar with the interviews that he couldn’t help the court is simply not true.

    Someone, we don’t quite know who, then had the idea of asking Anthony McIntyre if he could help the court. To his credit, McIntyre did not take refuge in a lie but took a principled decision not to help Judge Young, saying that while he respected the court, he had no intention of becoming an evidence gatherer for the PSNI.

    As a result, the entire archive was then handed over to Judge Young who, along with his clerks, spent the Christmas holidays trawling through interviews that Boston College had promised its researchers and research subjects would remain confidential. No wonder then that Judge Young refused to look such a gift horse in the mouth; he can hardly be blamed for deciding to hand over as much and as many of the interviews as he could. And all because Bob O’Neill told a lie.

    A couple of weeks later, Tom Hachey and Bob O’Neill wrote up their account of the Boston College subpoena affair in the Irish Times and this is what they wrote about this episode: “No one knows more about the contents of the interviews of former IRA members than the interviewer himself, Anthony McIntyre, who declined the court’s request to disclose which of the interviews were potentially responsive, thereby requiring Boston College to provide all the IRA interviews to the court for its review.”

    I have often compared Boston College’s behaviour during this wretched affair to that of Bush, Cheney, Rumsfeld and their Generals when the news broke about US-sponsored torture at Abu Ghraib prison in Iraq. Just as Bush & Co passed on the blame for a policy they had devised and designed on to the shoulders of grunts working shifts at Abu Ghraib, so Boston College has done the same to Anthony McIntyre and myself. This affair of the appeal-that-need-not-have-been is perhaps the best example of that approach in action. And still the stench of rotten cabbage hangs around Chestnut Hill.

  5. BC are still trying to box clever; their argument is that contributors had an "expectation of confidentiality" and not a guarantee of confidentiality; there is a huge difference between the two.

    As Ed rightly observes above, there is no verifiable evidence available that Dolores Price has ever disclosed exactly what her contribution actually is and thus any confidentiality clause that she has with BC remains intact. The onus is still on BC to honour its agreement with her and the others involved.

    BC have mischievously interpreted Price's acknowledgment that she has participated in the Project as intentional forfeiture of her (expectant) confidentiality clause with BC and thus released them of any burden in contesting disclosure of her contribution. BC should well know that any contributor can freely admit to the world at large that they had participated in the Project while at the same time refuse to disclose the specifics of their contribution.