Ed Moloney: Boston College’s Shameful Sham Appeal

By AM Sunday, May 6, 2012

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As Chris Bray writes here, Boston College has lodged its plea with the First Circuit Appeal court and he points out that the college have unceremoniously dumped Dolours Price, choosing to interpret two controversial newspaper articles in the Irish News and Sunday Life back in February 2010 as evidence that she had relinquished her protection of confidentiality and therefore any need for Boston College to resist the PSNI/Department of Justice subpoenas seeking her interviews.

UPDATE – I am informed that legally this might be a controversial and invalid claim for Boston College to have made. I will update more when the situation clarifies.

UPDATED AGAIN – Chris Bray has addressed the issue of the legal standing of Boston College’s claim that Dolours Price relinquished her protection of confidentiality when she allegedly gave an interview to the Irish News in Belfast in February 2010. He effectively concludes that Boston College’s claim is spurious. You can read his piece here.

Here is my take on that issue and the general matter of this so-called appeal by Boston College.

Boston College’s lawyer says that Dolours Price made “public statements”admitting that she had given interviews to Boston College and that this indicated that she was no longer prepared to protect the confidentiality of her interviews.

My question is a simple one: exactly which statements are these? As far as I know Dolours Price has made no public statement about her involvement with BC and has never been quoted saying that to anyone anywhere, to journalist, lawyer, newspaper or whoever.

The only reference to her having a connection to Boston College came in a Belfast Sunday tabloid article that appeared in February 2010. The article, in the Sunday News, had this to say: “Price, who has made taped confessions of her role in the abductions to academics at Boston University (sic), will relay this information to ICLVR (Independent Commission for the Location of Victims’ Remains) investigators later this week.”

That is all there is. A bald statement (which manages to name the wrong university) based on what? Where are Dolours Price’s quotes? Where is the evidence for this claim? Where does this information come from? The reporter, Ciaran Barnes, does not say, even though he claims to have listened to tapes stored in the vaults at Boston College. It seems to me quite extraordinary that in a legal case as important as this that claims are being made about what Dolours Price said with absolutely no evidence to back them up.

BC’s lawyer goes on to say: “(Dolours Price) provided much of the information about her role in the IRA and the disappearances of individuals, including Jean McConville, in public interviews”.

Excuse me, but exactly which public interviews were these? If the reader wishes to check here or here, not one IRA action allegedly ascribed to Dolours Price in those two articles is backed up by as much as a single quote from the woman herself, not as much as one word!

The two articles allege that Dolours Price made admissions about Jean McConville’s disappearance and cite taped interviews she made as the source. So, where are the quotes from these taped interviews, supposedly made by her in conversations with Anthony McIntyre? If she told McIntyre these things then why not quote her? A simple question to ask, a simple demand to make and most journalists would regard their work as unworthy of publication if it wasn’t backed up by such quotes or equivalent convincing evidence. But the single defining and damning feature of the newspaper articles upon which this whole subpoena saga has been based (and which in turn Boston College’s lawyer bases his and the college’s desertion and abandonment of Dolours Price) is that there is not a single quote anywhere to back anything up, not a shred of evidence that she said anything to McIntyre about Jean McConville or anyone else “disappeared” by the IRA in the early 1970′s.

If the New York Times or the Boston Globe or indeed any decent newspaper with standards were presented with such stories their editors would correctly reject them as being a series of unsubstantiated assertions and they would be spiked. Yet here we have a protracted and expensive legal process which could have devastating consequences for many of those involved which is based upon newspaper articles that carry no quotes nor any evidence of any meaningful sort to back up what they publish. If it wasn’t so serious it would be laughable!

Boston College’s written brief to the appeal court badly needs to be put in context and we should remember a very important feature of this action: that Boston College is appealing against a judgement which it did most to bring about in the first place and that the one thing that it is not doing is to challenge the district court’s substantive judgement that the interviews in the Belfast Project archive should be handed over to the PSNI in Belfast.

Boston College announced this “appeal” in late February after weeks of unrelenting media criticism for fleeing the field of battle in the wake of the District Court decision against us last December, leaving myself and researcher Anthony McIntyre to struggle on alone against huge odds. Here was a prestigious and enormously wealthy college abandoning its former researchers and research subjects to a lonely battle whose worst outcome could be devastating for them. With barely a shrug BC had ditched its promise to stand by its pledge of confidentiality given a decade earlier to the researchers in Belfast. By February there was a whiff of rotten cabbage about Boston College. As public relations disasters go, this was as bad as it could get.

So when the college announced in February that it was now going to appeal Judge Young’s decision in the District Court, the initial reaction was euphoric. One email to myself from a supporter captured the mood: “Yahoo!”, it read. That mood lasted about twenty-four hours. It became depressingly clear that BC had no intention of appealing Judge Young’s decision to hand over the interviews. The college’s appeal would be limited to the scope of Young’s decision since the venerable judge had decided that even though some interviewees had barely mentioned Jean McConville, the reason for the subpoenas in the first place, their interviews should nonetheless be handed over. And in the case of those who had given McConville greater mention, all of their interviews, including interviews entirely unconnected to the alleged British Army spy, should be handed over.

So what appeared to be a major U-turn by BC soon turned out to be much less. A cynic might even say that the move was a classic piece of public relations trickery, designed to deflect media criticism while really doing very little in terms of significance. I compared BC’s “appeal” to a condemned man arguing with the hangman over the length of rope he planned to use on the gallows.

At the same time there is no doubt that Judge Young’s decision was an outrageous one and if BC’s “appeal” succeeds in diluting it then so much the better. But the irony of all this is that if BC’s academic staff had played with anything like a straight bat during the hearings in front of Young, the judge would not have been able to make the decision he made and BC would not have had to take it to the appeal court.

Here’s why. When Young ruled back last December that the interviews should be handed over to the PSNI, he asked Boston College to review the interviews in the archive and come back to him with those that made reference to Jean McConville. Had Boston College acted on this, they could have minimized the damage to the archive by limiting the portions to be surrendered.

But instead Burns Librarian, Bob O’Neill, who has charge of the archive made an astonishing claim to the judge. He had never read the interviews, he said, so he wouldn’t know where to start or which interviews to read. So sorry, your honour, Bob O’Neill cannot help the court. I will be careful in my language here but let’s say the truth and this claim by O’Neill are complete strangers and if myself or Anthony McIntyre had made such a claim we’d probably end up on a perjury charge. I know that O’Neill did not tell the truth because over the years he and myself had many discussions about the contents of interviews and I have emails from him discussing interviews that he has read. For him to claim that he was so unfamiliar with the interviews that he couldn’t help the court is simply not true.

(It is arguable that had O’Neill been telling the truth his behavior would be worthy of even greater condemnation. This was the librarian in charge of a sensitive and important archive which had cost his college several hundred thousand dollars and he says he hasn’t read a single interview! The skeptical reader could be forgiven that the proof of his lie is that Boston College didn’t instantly sack him after such a startling and damaging admission!)

Someone, we don’t quite know who, then had the idea of asking Anthony McIntyre if he could help the court. To his credit, McIntyre refused to take refuge in a lie but took a principled decision not to help Judge Young, saying that while he respected the court, he had no intention of becoming an evidence gatherer for the PSNI.

As a result, the entire archive was then handed over to Judge Young who, along with his clerks, spent the Christmas holidays trawling through interviews that Boston College had promised its researchers and research subjects would remain confidential. Not one to look a gift horse in the mouth Judge Young can hardly be blamed for deciding to hand over as much and as many of the interviews as he could. And all because Bob O’Neill told a lie.

A couple of weeks later, Tom Hachey and Bob O’Neill wrote up their account of the Boston College subpoena affair in the Irish Times and this is what they wrote about this episode:

No one knows more about the contents of the interviews of former IRA members than the interviewer himself, Anthony McIntyre, who declined the court’s request to disclose which of the interviews were potentially responsive, thereby requiring Boston College to provide all the IRA interviews to the court for its review.

I have often compared Boston College’s behaviour during this wretched affair to that of Bush, Cheney, Rumsfeld and their Generals when the news broke about US-sponsored torture at Abu Ghraib prison in Iraq. Just as Bush & Co passed the blame for a policy they had devised and designed on to the shoulders of grunts working shifts at Abu Ghraib, so Boston College has done the same to Anthony McIntyre and myself. This affair of the appeal-that-need-not-have-been is perhaps the best example of that approach in action. And still the stench of rotten cabbage hangs around Chestnut Hill.