Boston College, the Belfast Project and the Academy of Betrayal: Protection of Academic Freedom Until It Becomes Inconvenient

Over the course of the last year, Boston College has shown immense institutional cowardice and abrogated its responsibility as a protector of academic freedom.
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The "Ivory Tower" has come to represent, to many, the aloofness that has increasingly infected the academy. But, properly understood, the metaphor suggests a fortification, a protection that allows one ensconced within it to follow his intellect and conscience rather than the temptations of popular and governmental approval, not to mention the ever-present corruptions dangled by lucre. But over the course of the last year, Boston College has shown immense institutional cowardice and abrogated its responsibility as a protector of academic freedom. The highly regarded Jesuit liberal arts college has been so betrayed by its administration, and in turn has so betrayed its most fundamental mission, that it has been left to the ACLU of Massachusetts to step-up in a battle for which those cowering behind the ivy walls have all but thrown in the towel before ever truly engaging in the fight.

The remarkable imbroglio began when, in May of 2011, the United States Department of Justice subpoenaed a number of academic documents solemnly entrusted to BC's possession, protection and care. The American governmental demand for the production of the documents arose out of a Northern Irish criminal investigation; rather than fight the subpoenas tooth and nail, as was its clear moral and academic obligation, Boston College's haphazard and half-hearted defense of the fundamental importance of academic freedom has embarrassed the institution, threatens to harm academics everywhere and, not so incidentally, endangers the lives of people brave enough to reveal, for posterity, important historical truths.

In 2001, two scholars, former IRA member Anthony McIntyre and journalist Ed Moloney, founded "The Belfast Project", a groundbreaking oral history undertaking centered at Boston College and meant to chronicle "The Troubles" in Northern Ireland, a decades-long bloody struggle which defined generations of Northern Irish and English alike. By 2001 the fighting had slowed considerably, and in July of 2005 the Irish Republican Army council announced that it would no longer pursue violence but rather would seek to achieve its goals through political processes. Sensing the changing times, Moloney and McIntyre created a ground-level chronicle of the decades-long struggle, and sought frank and truthful testimonies from all parties involved--without judgment, and without fear of repercussions. In order to solicit truthful narratives, Moloney and McIntyre--with the express backing of Boston College--promised their interview subjects that the testimonies they gave would be confidential until death.

But a Police Service of Northern Ireland (PSNI) investigation would put that confidentiality to the acid test. In a case that has been duly chronicled in the press here and abroad, a woman named Dolours Price--a Belfast project interviewee and former IRA member--was reported by an Irish newspaper to have admitted involvement in the still-unsolved murder of Jean McConville, a Belfast mother of ten apparently slain as a suspected informant in 1972. (McConville's remains were finally discovered in 2003.) British authorities--in conjunction with the PSNI investigation--have requested that the United States Department of Justice subpoena Dolours Price's "Belfast Project" recordings and interview materials. The United States has a "Mutual Legal Assistance Treaty (MLAT)" with Britain, and so the DOJ complied; subpoenas were issued, and Boston College initially sought to "quash" them, seemingly taking the stance that the dictates of academic freedom, protected by the First Amendment to the Constitution, trump the needs of a forty year old police investigation in another country. The case ended up in a Federal District Court in Massachusetts before Judge William Young. Tellingly, Judge Young started off on the wrong foot when he denied the scholars, McIntyre and Moloney, an official role as "intervenors" in the litigation because, in the judge's either naïve or cynical view, "Boston College adequately represents any potential interests claimed by the Intervenors." Given Boston College's weak defense of the scholars' and its own academic freedom, that determination would become laughable.

The central question before the court turned out to be whether the guarantee of confidentiality provided by the academicians to the interviewees was due any legal protection. News reporters have some limited degree of privilege when it comes to their guarantees of confidentiality extended to putatively confidential sources, lest there be a "chilling effect" on the vital work that reporters do. This partial privilege has come to exist despite Branzburg v Hayes, the landmark 1972 Supreme Court case that seemed to reject any "reporter's privilege" lodged within the First Amendment. But some sort of reporter's privilege did survive, because the most significant opinion to emerge from that case was not Justice ByronWhite's majority opinion, but rather Justice Lewis Powell's very short concurrence, in which he "emphasize[s] what be the limited nature of the Court's holding" and assures that there be a "proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct." That balancing test, mandated by the justice who cast the crucial fifth vote, has led lower court judges and even prosecutors to act with some admirable restraint before forcing reporters to betray sources where prosecutors might not need the information or might have other sources from which to draw the information they need.

This seemingly thin reed to which newspapers and news reporters have clung for four decades now has enabled considerable resistance by those subpoenaed as well as a surprisingly sympathetic response by many courts. As Judge Young himself would state in his eventual decision, there are three thresholds which traditionally need to be met in order to compel a reporter to give up confidential information: The information sought needs to be demonstrably relevant to the investigation; the materials cannot be "readily available from a less sensitive source;" and the inquiry has to be "non-frivolous." Clearly the Northern Irish murder investigation represented a "non-frivolous" inquiry, even if it might have been undertaken for purely political or other mischievous reasons; but surely the other two planks were places and principles where Boston College could have been expected to stand and fight.

However, BC instead demonstrated little interest in, and inadequate institutional courage to undertake, a full-throated defense of an "academician's privilege." As Judge Young would report in his eventual decision, "in its first motion to quash, Boston College proposed an in camera inspection of the Dolours Price interviews." In other words, Boston College's very first action in response to the subpoena for privileged academic material was not to fight tooth and nail, but rather to turn the documents over to the Court and allow the judge to scrutinize them. The thinking often goes that if a judge analyzes the information in secret ("in camera" means "in a chamber," as in the Judge's private chambers), he can balance the interests of the investigation on the one hand, and the interests of preventing a "chilling effect" on the other. Judge Young granted Boston College's request, and so Boston College turned over the Dolours Price tapes to the Court for a determination of their relevance. In one of the great ironies of the case, the government actually argued against this disclosure of the tapes or transcripts to the court, stating that on jurisdictional grounds the court did not have the right to undertake such a review.

But the surrender of the transcripts to the judge so early in the litigation had a profound influence on the ultimate outcome of the case in the lower court. By turning over the tapes right away, Boston College deprived itself of the option of engaging in a celebrated Catholic tradition that extends as far back as Thomas More: civil disobedience to unjust secular authority that seeks to infringe on age-old privileges of civil and religious society. Following a negative ruling, Boston College could have refused to turn over the tapes, arguing that despite what the government may say, academic privilege matters and must be given hearty protection as a matter not only of law, but of conscience. No Boston College administrator showed even an ounce of the bravery of newsmen and women who have marched into prison rather than give up their confidential sources. Reporters have endured prison sentences not merely to protect their sources and their own work, but to ensure the vitality of their profession; the academicians and clerics (BC has, after all, both secular and religious obligations) had the opportunity to do the same, and they ran from it.

Nor did Boston College utilize all of the robust institutional resources at its disposal in the fight. BC has, after all, a top-notch law school where reside any number of constitutional law professors who would surely have been interested in working on such a consequential constitutional case, not to mention hundreds of law students who would have loved the opportunity to dive into a high-profile and very consequential defense of the First Amendment protection of academic freedom. There is no indication that Boston College's administration approached its trustees in order to garner further support, or made some other gesture to send a message to both the Department of Justice and Judge Young that it was hunkering down for a pitched battle to defend principles vital to the church, to the academy, and more broadly to civil society. (The institution's lack of full-bore investment in the case seemed all-the-more surreal when part of the case was argued on Boston College's campus, in conjunction with an earlier agreement by Judge Young to bring actual cases to law school campuses).

It was little surprise, perhaps, that on December 16, 2011, Judge Young ruled against Boston College, and ordered the school to turn over the Dolours Price tapes to the government , for transmission to the Brits and then to Northern Ireland. Furthermore, he required that BC hand over to the court additional interview materials related to the McConville murder for in camera review so the court might "enter such further orders as justice may require." As we have argued elsewhere when discussing this case, Judge Young's decision was demonstrably flawed; it paid lip service to the existence of an academic's privilege somewhat akin to that of a reporter, but then slipped too quickly, and without significant evidence, to the facile conclusion that the transcripts were essential to the investigation and contained information that could not be gleaned elsewhere. Young did not describe what investigative efforts had been undertaken by the Police Service of Northern Ireland; nor did he show that other resources for finding the privileged information had been exhausted. Rather, he concentrated the majority of his decision on the importance of the Mutual Legal Assistance Treaty with Great Britain, and tersely dispatched with the question of academic freedom in a few short pages. One had the distinct feeling that the judge was prepared to pay lip service to the existence and importance of an academic's privilege, but that he knew from the start where he wanted the materials to go in the end.

Boston College did not immediately appeal the decision; rather, it was left to McIntyre and Moloney, to whom Judge Young had earlier denied entry into the litigation, to themselves appeal the ruling. The scholars indeed appealed and sought a stay of Judge Young's turnover order - on the ground that the disclosure of the Dolours Price interviews could place them - the interviewers - in actual physical danger. Should the interviews get out, McIntyre and Moloney fear they will be viewed as collaborators, and the sentence for collaboration has often been death. The Court of Appeals, demonstrating the non-frivolous, indeed profound, nature of McIntrye's and Moloney's objections to what Judge Young did, stayed the turnover order and will take up the matter in April. One has to assume considerable chagrin on BC's part, since it had earlier announced that it would not appeal Young's initial turnover order "because the court both accepted Boston College's argument that government subpoenas for confidential academic materials requires heightened scrutiny, and agreed to review the materials in camera."

Adding insult to injury, on January 20 Judge Young demanded that, should Moloney and McIntyre fail in their appeal, Boston College must immediately turn over, additionally, the materials from seven more interviewees. Judge Young's haste demonstrated that he was inclined to run roughshod over BC and the scholars, giving them little time to catch their breath. The scholars proved more fleet-footed than BC; indeed, it took Boston College a full month to decide to appeal Judge Young's second ruling; they have not appealed, and reportedly do not intend to appeal, Judge Young's first ruling regarding the Dolours Price interviews. Indeed, Boston College has indicated that the decision to turn over Dolours Price's interviews to the Department of Justice--at the request of the British and in conjunction with a forty-year old unsolved murder in Northern Ireland and with no indication in the decision that there was absolutely no other way to get at the information in her interviews--is perfectly fine with them. Indeed, as researcher-intervenor Ed Moloney put it on a website dedicated to the case, Boston College's appeal of the release of the seven additional interviews, evading the main event, is nothing more than a "sham fight at Scarva."

But while Boston College may have abrogated its duty to protect academic freedom, the two intrepid researchers, and, as of February 27, the ACLU of Massachusetts, have stepped into the fight. The ACLUM filed a powerfully-argued friend-of-the-court brief that makes the points BC should have made. [Full disclosure: Author Silverglate sits on the Legal Committee of the ACLU of Massachusetts and cast a vote in favor of ACLUM's filing its brief in the Boston College case.] The scholars are also seeking other, more political avenues of redress: they have secured the support of Massachusetts Senator John Kerry, who in a public letter addressed to Secretary of State Hillary Clinton, urges Secretary Clinton to "work with the British authorities to reconsider the path they have chosen and revoke their request" for the transcripts.

But despite the intervention of the senior senator from Massachusetts, Moloney and McIntyre face an uphill battle. The already difficult task of overruling a lower court decision was compounded by Boston College's lack of any demonstrable reluctance (and spine) to turn the transcripts over to the authorities. Moreover, as the scholars were initially denied (by Judge Young) the right evento defend in court their pledges of confidentiality, the first hurdle will be for the Court of Appeals to grant them the "standing" to litigate against the Department of Justice in this matter. The second hurdle, of course, will be their ability to win the privilege argument on its merits once they've earned the right to make it.

But the ACLUM is a formidable ally, and their friend-of-the-court brief makes a number of striking but perfectly logical and obvious points. One particularly powerful argument is that to turn over the documents to the British government without a clearer indication that doing so was a last resort would represent a disturbing indication "that the Constitution surrenders US citizens to foreign powers with fewer safeguards than are afforded to citizens subpoenaed by domestic law enforcement agencies." In other words, they argue, Northern Ireland may not guarantee certain protections of speech, but the United States does, and US citizens should continue to retain those protections even when the infringer is a foreign power acting through the instrumentality of the U.S. Department of Justice via a treaty.

While it is heartening that the ACLUM has seen fit to enter the litigation, the sad truth is that were Boston College more principled, the help might not have been necessary. There are a number of possible theories as to why BC has abdicated such a fundamental responsibility so logically reposed in the academy. Maybe the principles of academic freedom were not deemed worth the cost of a real legal battle. Or perhaps BC feared that a protracted legal battle would endanger its federal dollars, funds which BC President William P Leahy declares in his book, Adapting to America, have been essential to "accommodate[ing] postwar demand for education." But no matter the reason, members of the BC community should be concerned about what the administrators of their institution have done, or failed to do.

Harvey Silverglate is a Cambridge, MA, civil liberties and criminal defense attorney and Chairman and co-founder of the Foundation for Individual Rights in Education (FIRE). He is the co-author of The Shadow University: The Betrayal of Liberty on America's Campuses (HarperPerennial, 1999). He sits on the Legal Committee of the ACLU of Massachusetts and cast a vote in favor of ACLUM's filing its brief in the Boston College case. Daniel R Schwartz is a FIRE Program Associate and a Brandeis University doctoral candidate focusing on Russian History who will be attending law school in the fall. Follow Harvey Silverglate on twitter @3Felonies, and Daniel @DanielRSchwartz

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