Editor’s Note: Niall O’Dowd’s Periscope column recently criticized the handling of the IRA interviews for the Boston College archives which are now being sought by Northern Ireland authorities. Here, journalist Ed Moloney and academic and activiist Anthony McIntyre who conducted those interviews, give their side of the story.
There is clear evidence that Niall O’Dowd does not know ‘full well’ the background to Boston College’s Belfast Project. And on the basis of not knowing ‘full well’ he pumps out a piece riddled with errors. What evidence O’Dowd has found is as clear as the mud he seeks to sling.
This is somewhat unfortunate because for a while Niall O’Dowd strongly opposed the British government’s efforts to invade Boston College’s oral history archive. Now he has opted to say nothing about the British and instead seeks to exonerate Boston College and the American courts. All in the dubious service of blaming the researcher and project director.
Quoting from a ‘Boston College affidavit’, which was not in fact a Boston College affidavit, O’Dowd writes:
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“Prior to the commencement of the project, Robert K. O’Neill, the Burns librarian (where the tapes were to be housed) cautioned Moloney that although he had not spoken yet with Boston College’s counsel, the library could not guarantee the confidentiality of the interviews in the face of a court order.”
The striking aspect of this and other parts of his May 2000 fax to Ed Moloney - which O’Dowd fails to cite - is that it is clearly O’Neill’s preliminary judgement of the legal situation. For instance, he went on to say: “Nevertheless, the First Amendment to our Constitution is greatly cherished here, and I suspect the courts would look upon these interviews as privileged information.” Our need for firm guarantees was one reason why the project was not started in the summer of 2000 but was delayed a further eight months. We required very specific assurances and we waited until we got them. When Boston College finally came back with those assurances, which it later provided separately to the loyalist side of the project, the green light was given.
And what were the loyalists assured? We were not directly involved in their deliberations but some of their number had face-to-face meetings with senior college staff in Belfast and in their own words, these representatives of Boston College:
.....from day one, gave guarantees that were directly related to the interest this material would have from the PSNI. (BC staff)…gave these guarantees formally as official representatives of BC and did so putting on the line the integrity of this unrivalled Irish Studies collection in this illustrious academic institution. At every meeting subsequently, discussion centered around how the project was coming along and every time that discussion touched upon how none of this could have happened without the iron clad guarantees that predicated the whole thing.
O’Dowd then proceeds to cite Boston College spokesperson Jack Dunn’s assertion that ‘an agreement was signed between Boston College and Ed Moloney that stated that each interviewee is to be given a contract guaranteeing confidentiality to the extent that American law allows.’
While this is not in dispute, it seems to be a late in the day fallback position adopted by Boston College to shift the blame onto to other shoulders. Their position when the court case began last May was substantially different. As the Boston-based lawyer Ted Folkman points out at Letters Blogatory: ‘in its motion to quash the subpoena, Boston College did not suggest that the promise of confidentiality was a promise only to the extent permitted by American law’.
That aside, one would expect the contract drawn up by Boston College to have this health warning, if that indeed is what it was, written clearly and unambiguously into the confidentiality contract. So what exactly did this donor agreement say?
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The donor agreement signed by interviewees stated:
Access to the tapes and transcripts shall be restricted until after my death except in those cases where I have provided prior written approval for their use following consultation with the Burns Librarian, Boston College. Due to the sensitivity of content, the ultimate power of release shall rest with me. After my death the Bums Librarian of Boston College may exercise such power exclusively.
There was no caveat in the contract drawn up by Boston College’s attorneys stating that the type of confidentiality it guaranteed would not withstand a court order. Clearly BC’s legal opinion was that it was unnecessary. Otherwise why not insert the caveat if the type of confidentiality stipulated in the contract in any way clashed with American law?’
O’Dowd goes on to approvingly cite Jack Dunn of Boston College who argued that his ‘good friends in Ireland seem to lack a fundamental understanding of the American legal process.’
That is true. We are not lawyers. Boston College has its own law school and legal counsel yet for all of that it seems not to have understood the American legal process. When we, who ‘did not understand’ American law, warned Boston College that a second subpoena could be imminent, we were told that would not happen. And the reason given later: ‘......practiced lawyers … people who were formally schooled in international law’ had ruled out that eventuality. A second subpoena duly arrived. So much for Boston College’s knowledge of American law.
Furthermore, in a September 2011 email a Boston College official said in respect of the subpoena ‘the action of the PSNI Special Crimes Division was totally unexpected.’ A very definitive statement. But how could it be ‘totally unexpected’ if Boston College’s position is that it always felt the archive might not withstand a court order? Boston College was ‘totally’ surprised because the PSNI action flew ‘totally’ in the face of its own legal counsel.
O’Dowd further argues that we are now ‘defending the indefensible.’ How is protecting the interviewees who took part in this project indefensible? Is he suggesting that we should have abandoned them?
Finally, Niall O’Dowd repeats a hoary old canard when he states that the interviewees were all opponents of Gerry Adams. How on earth would he know? Does he know who we interviewed? Of course not. The project was designed to increase knowledge of republican history and interviewees were chosen for their knowledge not their biases. Ultimately, if the archive survives and is eventually made available the public will judge for itself the academic integrity of the project.