A Reply to Niall O’Dowd

By AM Saturday, January 14, 2012

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Tonight The Pensive Quill features a response from Ed Moloney and Anthony McIntyre to Niall O'Dowd. Ed Moloney writes a preamble to that response.

Preamble

Yesterday, Niall O'Dowd published an article on his website accusing Anthony McIntyre and myself of tricking Republican interviewees into participating in the Boston College oral history project with false promises of confidentiality. The article below is our response to this false claim.

Readers should bear in mind two things: firstly, the Provisional leadership dislikes the oral history project because a) one of the participants, Richard O'Rawe went on to publish an inside account  of the 1981 hunger strike which strongly challenged that leadership's version of the protest and raised grave questions about its behavior towards the fasting prisoners, and b) another of the interviewees was Brendan Hughes who was motivated by his anger at Gerry Adams' denial of his own IRA past to tell a no-holds barred account of his and Adams' life in the IRA. In other words the oral history project challenged the official narrative and history - and thereby their sole control - of two key aspects of the Provisional leadership's story: how it dealt with the hunger strike and Gerry Adams' own life story.

Had Richard O'Rawe not decided, against our advice, to tell his story in book form, his interview would have remained sealed until his death and his controversial version of the 1981 hunger strike would have remained hidden from view for many years. But publishing his own story was Richard's right and, as he felt it, his duty. Likewise Brendan Hughes was insistent that his interview be published after his death rather than just made available to scholars. The rest of the archive includes a wide spectrum of republican viewpoints and organisations, from differing generations and geographical locations. Happenstance has meant that the first two projects to result from the archive were these. The idea that the archive was an anti-Adams' project, as claimed by O'Dowd and the Provisional leadership, is therefore a myth. In this context it is worth reflecting on this question: if Gerry Adams had been less inventive about his past would Brendan Hughes have ever contemplated talking as openly as he did?

The second point to bear in mind is that Niall O'Dowd is a close ally and friend of the Provisional  leadership. Some might be inclined to describe him as an apologist for them and unofficial spokesperson. That O'Dowd's critique of the Boston project echoes, almost to the word, that of the Provisional leadership is, in our mind, no coincidence. Reading O'Dowd's article one is tempted to reach for Mandy Rice-Davies' famous observation: "Well he would [say that], wouldn't he?"

Appealing though it might be to leave the matter at that, we have decided to explain the background to the oral history project and the issue of confidentiality as it affected both Republican and Loyalist participants as fully as we are able and to answer O'Dowd's points. Incidentally he and others seem, or wish to forget that the UVF was part of this project. Does he or anyone else imagine for a moment that such an organisation would take part in this enterprise without ensuring for itself that there were adequate assurances of confidentiality from Boston College? That these assurances were given by the college is beyond doubt. The question is whether they were ever meant.

This preamble has been written by me. The article that follows was written by myself and Anthony McIntyre:

A Reply to Niall O’Dowd

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:

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?

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.