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BC faces dilemma over Irish archive

Subpoena for interviews with IRA members fuels ethical, legal concerns

By Lisa Wangsness and Tracy Jan
Globe Staff / May 14, 2011

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An Irish journalist who oversaw a secret Boston College oral history project on the war in Northern Ireland said yesterday that if the US government succeeds in compelling the college to surrender decade-old interviews with two former soldiers of the Provisional Irish Republican Army, he believes that BC may have to destroy the rest of the tapes to protect those who participated under what they understood to be an ironclad promise of confidentiality until their death.

At the request of the Police Service of Northern Ireland, federal prosecutors have issued a subpoena ordering BC to turn over the tapes of two interviewees, including one who is still living, who disclosed last year that the interviews may contain information about the disappearance and killing in the early 1970s of people the IRA suspected of being British informants.

“Everyone else who has given interviews will be worried now about the consequences of this, and quite rightly,’’ said Ed Moloney, whom BC hired to direct the project. “They are going to be alarmed there will be more leaks, and we’re going to have to address that in a very determined way.’’

The college is weighing whether to cooperate with the subpoena as it seeks legal guidance and additional information from the US attorney’s office, in a case that has rattled academics and oral historians around the country because it raises questions about confidentiality guarantees that researchers often promise subjects.

The subpoena, first reported by the New York Times Friday, seeks interviews with IRA soldiers Brendan Hughes, who died in 2008, and Dolours Price. Both served time in prison for IRA activities. An Irish newspaper reported last year that, in an interview, Price accused Sinn Fein leader Gerry Adams, now a member of the Irish Parliament, of ordering the kidnapping and killing of people the IRA suspected as loyalist informants. Adams has categorically denied those assertions and that he was a member of the IRA.

Historians and ethicists, including a BC theologian, said yesterday that Moloney’s researchers should have warned interview subjects that a promise of confidentiality may not withstand a government subpoena. But now that the agreements are being tested by federal prosecutors, some academics say the university has a moral obligation to fight to uphold the promise.

Boston College, founded in 1863 to educate the children of refugees of the Irish famine, has been an international leader in Irish programs and a broker in the Northern Irish Peace Process.

“We have concerns for the safety of the interviewers who conducted their interviews with the assurance of confidentiality, as well as concerns regarding the effect this subpoena may have on oral history projects as an academic enterprise,’’ BC spokesman Jack Dunn said in a statement.

Moloney said that if BC is forced to hand over the tapes, the decision about what to do with the remainder of the interviews belonged strictly to the university. Destruction of the rest of the archive, he emphasized, should be an “option of last resort,’’ because of the extraordinary historic value of the records, which include interviews with paramilitary operatives on both sides of the conflict in Northern Ireland, those loyal to the British crown, as well as those fighting for independence from it.

“There is nothing in terms of the Troubles in Northern Ireland equivalent to it,’’ he said.

Moloney said that he and Paul Bew, then a visiting scholar at BC, came up with the oral history project in the 1990s, when the peace process was well underway, and they realized that participants in the Troubles, which had begun a generation earlier, were dying off.

“I knew that what would happen would be the whole thing would get lost,’’ he said.

Those involved in the violence, he said, were wary of cooperating with institutions in Britain and Ireland, but that such fears were less with US researchers.

BC agreed to fund the research, which was conducted by two interviewers. Anthony McIntyre, a former member of the IRA, interviewed republican activists. Wilson McArthur, a loyalist activist, interviewed unionists.

Two of the interviews, including Hughes’s, provided the basis for a book Maloney published last year, “Voices from the Grave: Two Men’s War in Ireland,’’ following the men’s deaths. The book is the first in a planned series drawn from the Boston College Oral History Archive on the Troubles in Northern Ireland.

The interviews are housed at the university’s John J. Burns Library, which contains the most comprehensive collection of Irish research materials in the United States and is described as the “crown jewel’’ of the Boston College Centre for Irish Programs. The college is contractually committed to withholding taped transcriptions of interviews unless the subjects agree to release them or until the subjects die.

Confidentiality agreements to discuss sensitive subjects, including criminal activity, are commonplace in oral history research, though often with the caveat that they are not protected from the law.

Moloney said that subjects interviewed in his project signed a written confidentiality agreement, but that it contained no clause cautioning participants that the promise might not withstand a government subpoena.

“If that had been there, we would have had no interviews at all,’’ he said. “If we were saying to them: ‘We want you to tell us everything about your life as a bomber and gunman. And, by the way, if the cops come, we’re going to hand all this over. Is that OK with you?’ It would have never gotten off the ground.’’

News of the effort to subpoena the material has rippled through academic communities, where many worried it could have a chilling effect on the gathering of oral history.

“It’s incumbent on BC to fight the subpoena,’’ said Niall O’Dowd, founder of the website IrishCentral.com, who said he had participated in an oral history project at Columbia University in which he had been assured the interviews would not be revealed until 2019. “It sends a shudder through the entire research world,’’ he said.

However, Stephen Pope, a theology professor at BC, said the guarantee of confidentiality to interview subjects is at best, naive, and at worst, manipulative, especially when conducting research like the BC project that “has such grave significance for society.’’

“It’s important to get legal advice on what can and can’t be promised in good faith to the interviewees,’’ Pope said. “At the very least, there is negligence on the part of the researchers, from what I can tell.’’

The two researchers who conducted the interviews, who were under Moloney’s supervision, should have known that what their subjects told them could potentially be used in court, Pope said. The law does not recognize the authority of academics and journalists to keep information confidential, he said.

Keeping identities of interviewees closely guarded helped secure confidentiality, he said

John A. Neuenschwander, an emeritus professor of history at Carthage College in Wisconsin and author of “A Guide to Oral History and the Law,’’ said institutions and researchers have an obligation to defend confidentiality agreements, but they also should warn subjects that they may not override a subpoena.

“You need to alert people that you seal the interview for, that you may not be able to prevent it from being picked up by a subpoena and going to court,’’ Neuenschwander said.

Tracy Jan can be reached at tjan@globe.com; Lisa Wangsness at lwangsness@globe.com.