A Response to Ted Folkman

Tonight The Pensive Quill carries a response from Ed Moloney and Anthony McIntyre to an article written by Ted Folkman in his blog Letters Blogatary.

Ted Folkman, a Boston based lawyer, is living proof that because one follows a case it does not follow that they come remotely close to grasping what lies at the heart of it.

He writes that he has been struck by a change in emphasis among those ‘publishing articles critical of subpoenas.’ In essence he means Ed Moloney and Anthony McIntyre given his accompanying reference to ‘their defeat in the District Court.’

There has not been a shift in emphasis but rather an expansion of the discussion to encompass the conditions that helped produce the crisis that has beset the Belfast Project. The fight to prevent the enforcement of the subpoenas, although abandoned by Boston College, is very much a work in progress. Are we in court contesting the enforceability merely for the optics?

Ted Folkman seeks to frame the current debate in terms of an assumption on our part that the subpoenas are enforceable. The problem is less that the subpoenas are enforceable but more that they could ever have been issued in the first place. Boston College is on public record as stating that ‘the arrival of subpoenas was ‘totally unexpected’. It found them totally unexpected, despite its current waffling about ‘to the extent American law allows’ only because it was certain no such action was possible; an assurance it separately conveyed to both sides of the Belfast Project, loyalist and republican.

In the contract given to the Belfast project director it was stated that:

each interviewee is to be given a contract guaranteeing to the extent American law allows the conditions of the interview and the conditions of its deposit at the Burns Library including terms of an embargo period, if this becomes necessary...

Yet that undertaking was never put into effect. BC did not give each interviewee a contract to this effect and the question must be why not? Why did they break their word? What they did was bury the 'American law' reference in a separate contract with Ed Moloney. Had this reference been included in the donor agreement this would have been a red flag to everyone, project director, interviewers and interviewees alike and the project would have been dead in the water. But the reference was excluded. Why? Was it because BC did not want to kill off the project at this point? That they did not want to lose this opportunity to acquire a very valuable historical archive? These were BC's contracts not ours. BC stated that the operative contract was the donor agreement which encapsulated what they stipulated at the outset, that nothing would be allowed into the Burns Library that would be at legal risk. The question then becomes, did BC deliberately mislead the project director, interviewers and interviewees?

We will be charitable and assume that Ted Folkman did not fully read the blog post that we separately posted over the weekend that addressed this issue and that he entirely missed the contribution of the Loyalist group involved in this project, the Ulster Volunteer Force (UVF).

For obvious reason Anthony McIntyre was not involved in the dealings that led to the UVF’s inclusion in the project and aside from one brief meeting in Belfast, Ed Moloney, then based in New York, was not substantially involved either. Instead representatives of that group held their own face-to-face meetings with senior BC staff which were, by their account, dominated by the issue of legal safety.

One of their number gave us this quote, which we reproduced: ‘they i.e. BC)…..from day one, gave guarantees that were directly related to the interest this material would have from the PSNI.” Allow us to translate in words that close down the space for Ted Folkman to proffer any alternative plausible interpretation: we asked whether the cops could ever get their hands on the interviews and we were told no.

At the heel of the hunt everything lies within the donor agreement, the operative contract. While it can be argued with hindsight that the reference to American law can be cited as covering the issue of confidentiality it nevertheless does not single out and specify confidentiality. In fact it could as easily be argued that given BC’s own wording in the donor contract, which the College crafted, the American law reference was framed with ownership of copyright in mind, which was very clearly written into the contract. This concerned Brendan Hughes so much that in his own donor agreement he imposed limits on the effects of copyright belonging exclusively to Boston College.

The confidentiality issue  appears very much as a standalone matter in the contract. There is a very specific reference to confidentiality in the donor contract: ‘the ultimate power of release shall rest with me.’ It is clear that ‘ultimate’ is not BC, the courts or anybody else but the interviewee. If American law did not permit ‘ultimate power’ of release to reside with the interviewee why was it ever part of the donor agreement? If a court constituted a higher power that rendered the ‘ultimate power’ of the interviewee redundant why write into the donor contract that the interviewee had such power?

The sin of omission Ted Folkman refers to finds its equivalent in the case of the driver who omitted to sound his horn and then blamed the pedestrians he mowed down.

Mr Folkman also argues that:

Promises of confidentiality are always subject to the power of a court to issue subpoenas, except in cases where there is an evidentiary privilege (the best known examples in the US: the attorney/client privilege and the priest/penitent privilege).

Yet given the highly sensitive nature of the Belfast Project, for it not to have specified the nature of limitations is an omission that begs for much greater scrutiny than Ted Folkman is prepared to give it with his dismissive comment ‘I don’t think it’s particularly blameworthy to have omitted something that should have been generally understood.’

Why should it have been generally understood if in assurance after assurance, and also in its donor contract, Boston College stated that the archived material was subject to the ‘ultimate power’ of release by the interviewee? Surely, such an ambiguity-free undertaking, were it not given in bad faith, ought to have had any derogation explicitly pointed out in the same document?

That one simple line of Folkman, ‘promises of confidentiality are always subject to the power of a court to issue subpoenas’, could easily have been inserted into the donor contract and all current problems would never have arisen. As Ed Moloney has correctly pointed out there would have been no archives to invade had that been in the contract.

To boot, we do not have to guess what Boston College’s own thoughts on the matter of privilege were. In his May 2000 fax the Burns Librarian stated “Nevertheless, the First Amendment to our Constitution is greatly cherished here, and I suspect the courts would look upon these interviews as privileged information.” If, Boston College resiled from this position where did it make this clear? Certainly not in the donor agreement, the tone and tenor of which resonated with the notion of privilege. The term ‘ultimate power of release’ does not lend itself to any other inference.

Moreover, Boston College has shown its own contempt for the notion ‘to the extent American law allows.’ American law allowed it not to hand over the entire republican archive to the court for in camera review; American law allowed it to appeal the decision by the District Court to hand the Dolours Price interviews over to British authorities. Yet, in spite of ‘the extent American law allows’ Boston College did not make use of such allowance and pulled out of the case. It is quite prepared to allow the archive to be handed over to British authorities even though American law allows Boston College to go much further in its legal battle than round one. This is evidenced by the fact that the archive remains on US soil not as a result of Boston College’s legal strategy which has clearly failed, but because we are fighting the case ‘to the extent American law allows.’ How come Boston College is not doing the same?

Ted Folkman displays a stultifying sense of respect for institutional authority so breathtakingly deferential that it raises the issue of what trust can be placed in an institution that is quite prepared to let its researchers and research participants go to prison before making any sort of ethical stand itself. Has he thought through the implications of what he is actually advocating, that researchers and their participants should go to prison while the university should eat, drink and be merry? Such gratuitous acquiescence in the institutional abrogation of ethical responsibility is a slave owner’s charter not a code of ethics for a modern university.


  1. I have responded in full to a very similar post at Ed Moloney's blog. I won't repeat my response in full here. I will say, though, that for the most part I have focused my comments not on the moral rights and wrongs of the situation, or the political rights and wrongs of the situation, but on what I think the law is. (I have had a recent dialogue with Chris Bray that strays somewhat from this narrow focus and discusses ideas of civil disobedience). I'm not trying to argue what should happen; I'm trying to give my best prediction for what will happen. So far my views about how the courts would treat the claims of Mr. McIntyre and Mr. Moloney have been right on the money, so I think readers can decide for themselves whether I am a credible and impartial source of information concerning this case. My complete coverage is available at http://lettersblogatory.com/tag/project-belfast.

  2. Ted,

    thanks for commenting. Your views are always welcome. While we seriously disagree I am always willing to listen to you. Unlike many others who have offered opinions on the matter you have gone to some lengths to study the case. As I have argued with you elsewhere I don't believe you have sufficiently scrutinised the role of Boston College on this matter. Even the briefest listen to Jack Dunn spewing out falsifications on RTE should alert observers to BC's mendacity and less than wholesome stance. Luckily Chris Bray destroyed him in a follow up piece.

  3. Thanks, Anthony. I'm enjoying covering this case, and while I obviously have nothing personal at stake, as you do, I'm glad to have the opportunity to exchange thoughts with you. And while as I've said I don't think you have a strong legal case, I think you may well have a good political case (though I readily admit that I don't know enough about the history of the Troubles to have a really well-informed opinion).

  4. Anthony,

    I think you've BC down to a T. It's clear now they wanted the kudos of holding such an important archive and any copyright attached to it and were willing to go to any lengths to ensure they got it, including ensuring participants of confidentiality. Their 'to the extend American law' argument is becoming tiresome - as their get out clause it doesn't cut the mustard. There was a right and wrong way to respond to the subpoenas and they fled at the first sign of trouble. I'd bet that if Ed Maloney tried to publish any further transcripts that didn't hold the proviso that Brendan Hughes's did, BC wouldn't be too shy in fighting that in court.

    Their behaviour has been shameful in the whole thing. I'm sure they're already saying goodbye to any other archival material they have in their library as they've lost all credibility.

    And when discussing the conditions that led to the subpoenas let's not forget Morris and Barnes. Two half baked, gutter 'journalists' who were lured by readership numbers guaranteed by sensationalist headlines & British 'investigative' awards than by proper reporting in the interest of the public. Woodward and Bernstein they are not.

  5. Anthony,

    "BC did not give each interviewee a contract to this effect and the question must be why not? Why did they break their word? What they did was bury the 'American law' reference in a separate contract with Ed Moloney. Had this reference been included in the donor agreement this would have been a red flag to everyone, project director, interviewers and interviewees alike and the project would have been dead in the water."

    In an article 'Tale Of The Tapes' by John Burns, Sunday Times Focus, 1st January, Ed Moloney is quoted as telling the Boston Globe that the interviewees were not flagged as to this legal qualification because they would not have participated. Regardless of which contract the caveat appears in, Ed was aware of it's existence and therefore must have been conscious that there was an obvious contradiction between the verbal assurances proferred by Boston College and the contractual qualification?

  6. Robert,

    As always, good to hear from you. Unfortunate that it is under such difficult circumstances.

    I read the Burns piece and was surprised at how out of context he got it. He made the following intro to the quote: ‘Moloney has defended his decision not to tell interviewees that the tapes might not be safe from a court order.’

    This is simply not so. Ed defended no such decision to the Sunday Times. John Burns inferred it from the Boston Globe quote. Ed answered John in the ST with a very clear assertion.

    ‘John Burns quotes from an interview I gave to the Boston Globe, in which I said: “If that had been there, we would have had no interviews at all. If we were saying to them, ‘We want you to tell us everything about your life as a gunman and, by the way, if the cops come we’re going to hand all this over. Is that okay with you?’ it would never have got off the ground.”

    Use of that quote makes it appear interviewees were misled about the legal safety of their interviews. In fact, the quote was in response to a question about Columbia University Oral History project, because of the post-9/11 legal context in America, inserting a subpoena health warning in contracts with interviewees.

    Our project was created and the legal side agreed by Boston College in 2000. No subpoena health warning was issued by us because Boston College insisted that the threat of a subpoena was non-existent.

    Had there been the remotest need to insert subpoena health warnings neither I nor my researchers would have taken part. We would have strangled the project at birth rather than risk exposing interviewees to any legal repercussions.

    This is what I sought to convey to the Boston Globe.

    I stressed the impossibility of a project such as ours were the threat of subpoena there, not that it was there and we proceeded regardless. We took on the project as a result of Boston College authoritatively telling us that all interviews were firewalled against legal incursion.’

    The type of inference that you draw from that quote Robert leaves you to deal with the fact that it runs counter to every other part of Ed’s narrative on the matter before and since. It made no sense to say any such thing. It was self defeating.
    ‘Regardless of which contract the caveat appears in, Ed was aware of its existence and therefore must have been conscious that there was an obvious contradiction between the verbal assurances proferred by Boston College and the contractual qualification?’

    This is not so. It is the inference you draw from the ST article.

    I don’t know if you noticed Jack Dunn of BC on RTE quoting from Ed’s contract with BC. After saying ‘and I quote’ he went on to stick the word ‘confidentiality’ in followed by a reference to American law. It was a blatant mistruth.

    That’s what we are dealing with.

  7. Anthony,

    Thank you for taking the time, in the circumstances, to clarify this. I had missed Ed's subsequent refutal of Burns' article in the Sunday Times.
    The inference I drew however was not based solely on the misuse of that quote but additionally the presence of the American Law reference in the Moloney Agreement with Boston College. I appreciate that it appears only in the form of a vague statement of intent for inclusion in the Donor Agreements, which in any event it did'nt. The reason why it was'nt included, as had been stated to Ed, I find somewhat intriguing. Did Ed request it's omission? Or did BC consciously omit it in the knowledge that it's inclusion would have scuppered the project but it would nevertheless remain to be referenced as a defence if the stuff hit the fan? I find it inconceivable that all this was at sometime not deliberated upon by BC.
    I attempted to view the Dunn RTE interview but,oddly, it was removed.

  8. Robert,

    RTE pulled the Dunn interview. I doubt very much of they felt on solid ground trying to defend it. In my view it is a pity they pulled it because as Chris Bray pointed out it was a woeful articulation of BC’s position:


    In that interview Dunn cites from the contract and says ‘I quote’ and then goes on to insert the word ‘confidentiality’ into a sentence that it was never in; something even the most dumb of us can check by reading the contract. It was sheer dishonesty.

    If you look at the Moloney Agreement you will see that confidentiality is mentioned once and not in relation to American law. It is mentioned elsewhere and refers to not revealing participation.

    The interviewees were to be given a donor contract guaranteeing to the extent American law allows the conditions of the interview. That donor contract therefore with its ‘ultimate power’ of release resting with interviewee should have been consistent with American law. If it was inconsistent it should have been written in.

    Everything in any country is permissible to the extent the law allows. That seems a truism. Interestingly, in its motion to quash the subpoena BC did not cite the American law matter. That was only introduced to BC discourse later when a bit of back covering was needed.
    But you can get an understanding of the type of the lax approach to US law adopted by BC if you look at its response to fears expressed by myself and Ed that a second subpoena could arrive. They said on record that they had been advised by people formally schooled in international law ... practiced lawyers who said it was most unlikely. When we queried that they sat on their hands and did nothing.

    Ed didn’t request the omission. Why would he and fashion a rod for his own back – and mine, not to mention the interviewees? In all of this Robert, there were face to face meetings between myself and these people. The loyalists also met them and were told it was beyond the reach of any court order and was even beyond a PSNI glance at the contents! Moreover, that BC professed complete surprise at the subpoena indicates that court orders were never part of their calculations.

    ‘ I find it inconceivable that all this was at sometime not deliberated upon by BC.’

    You would imagine! But I am forced to wonder just what they deliberated on.