Chris Bray: I wonder what’s under

Chris Bray reviews Palys & Lowman ‘Lessons From the Boston College Subpoenas’ in a piece that first appeared on the Boston ollege Subpoena News website on 21 November 2012

In a new article in the peer-reviewed Journal of Academic Ethics, longtime researchers John Lowman and Ted Palys discuss “Lessons from the Boston College Subpoenas.” Palys and Lowman, who teach in the School of Criminology at Simon Fraser University, couldn’t be more qualified to address the questions that follow the BC subpoenas. Both have a long record of sensitive research on people who are alive and can be targeted by governments, and together they have written extensively on the topic of confidentiality and human subject research.
Their new article on Boston College reflects the knowledge and care that come from long experience. Palys and Lowman identify in the BC conflict “the two approaches that have developed over the past 40 years to the threat of court-ordered disclosure of confidential research information.”

On the one hand, an an “ethics-first approach” requires that researchers protect their research subjects under all circumstances and at whatever personal cost. This approach strongly implies a willingness to defy governments and their efforts to turn academic research to state purposes; the ethics-first approach to a subpoena is to refuse disclosure and fight back, even to the point of being jailed. The sociologist Rik Scarce embodies this approach. So do Belfast Project researchers Ed Moloney and Anthony McIntyre, who have waged — and are waging — a determined legal battle against the BC subpoenas for more than a year and a half.

On the other hand, a “Law of the Land approach…holds that academic institutions and researchers must always obey the law, including a court order to violate research confidentiality.” In the matter of the BC subpoenas, Palys and Lowman write, Boston College itself has come to exemplify this approach. The university has gestured at legal resistance, but signalled its intentions with the declaration of its media spokesman that they had “fought the fight and the fight was lost.” If you go to court and the judge says to hand over confidential research material, then that’s what you do.

The posture of fake helplessness in that choice is clear enough, and Palys and Lowman show through careful discussion that BC has invented some of the ropes that bind its hands. The university first tried to keep the subpoenas a secret, then fought a polite and unmistakably limited courtroom battle, even going as far as to hand a federal judge a much broader range of materials than legally required so that he could perform an in camera review and determine for himself which were germane to the subpoenas.

Meanwhile, researchers Moloney and McIntyre fought not just a legal battle but a political battle, enlisting the assistance of Irish-American groups to lobby the State Department and members of Congress for their intervention against the subpoenas.

Those political efforts have failed, so far, to convince the grotesquely obtuse bureaucrats at the Justice Department to withdraw the subpoenas. But think what a political effort might have accomplished if Boston College had led it, calling other universities to its defense (and to the general defense of research confidentiality). The professional associations — the American Historical Association, the Association of American University Professors, and so on — have stayed firmly on the sidelines, with academia as a whole choosing to look on as passive spectators to someone else’s fight. That professional quiescence is the product of institutional quiescence: American academics are staying out because the American academics who could have rallied a political effort chose instead to preclude a political effort.

“In view of the record,” Lowman and Palys conclude, “Boston College has provided an example that will be cited for years to come of how not to protect research participants to the extent American law allows. Instead, it has allowed its Law of the Land doctrine to devolve into a form of caveat emptor.”

A research university has shoveled the problem of research confidentiality onto the laps of its research subjects, effectively saying that hey, listen, you should’ve considered the possibility that we’d give you up to the police. “As is so often the case with advocates of Law of the Land limitations to research confidentiality, Boston College’s perspective reflects the attitude that law is merely constraining, something to be reacted to rather than something that is enabling, dynamic, and that academics can influence.”

Laying down, a university depicts itself as a helpless victim of outside forces. Lowman and Palys quite reasonably conclude that BC’s posture with regard to the subpoenas is an example of “moral bankruptcy.”

There’s much more to this new article than I’ve covered here, and I encourage you to read the whole careful and detailed thing. In a particularly enjoyable moment, the authors catch BC spokesman Jack Dunn in a characteristically sloppy and foolish lie about the history of the university’s institutional review protocols.

Beyond the limited and practical boundaries of an article about the dimensions of a conflict over confidentiality and its lessons for researchers, what we need next is a longer and more embarrassing discussion about the current state of institutional courage and principle in academia. We know that Boston College has capitulated to an absurd set of government demands, treating a political fishing expedition as a murder investigation that cannot responsibly be opposed. We know that American academics have, on the whole, stayed out of the conflict, declining to add their voices to a political effort against a politicized government action.

What we don’t know, or at least haven’t made public and explicit, is how we came to live inside the borders of this Vichy academy. Like Marshal Pétain, Father William P. Leahy and his subordinates have gone farther than the moment requires. They didn’t just surrender subpoenaed materials; instead, they rushed to court with every Irish Republican interview in their possession, dumping the whole pile on a government official with an invitation to read it all and decide what he thought should go to the police. Under fire, Boston College chose to stay quiet and go along, rather than to start a fight and summon a broader resistance.

And what American academics have objected, or have intervened to insist on a political fight?

The Boston College debacle does give us a clear and disturbing picture of the state of academic research confidentiality. It also gives us an ugly picture of academia as a whole.

How and why have we come to this? Where is our courage? What is it that we do, and how much are we willing to do in the defense of our professional purpose?


  1. It's difficult not to think that this case would have been binned a long time ago if Boston College had shown a bit of gumption and put up at least half a fight.

    To say they folded early is an understatement. They peeked one eye above the parapet, thought it looked like too much hard work then scurried back under their rock.

    Equally as astonishing as their failure to protect the project is their assertion that they did all they could to fight the subpoenas.

  2. I'm still trying to understand what the problem is with the bc tapes. With all the legal jargon stripped away..A few ex political prisioners from both sides decided to tell the world how it really was...I reckon they told warts and all (I don't care for names or who done what...)

    A PM or some celeb. can write books about their lives no qualms. But a few prisoners tell the truth and someone wants to re-edit it????

    I hope someone in Whitehall reads this (MI5 or other).

    I grew up in the murky streets of Ardoyne and the best way for me to explain to my kids (lets face it, for this generation the troubles are stil raw<--yes I came through unscathed<--but I was lucky). Is in projects like BC tapes.

    Basically leave the tapes gathering dust and time will judge when they should be released. If Mr HET or Whitehall (like SF) want the truth, clean up your own back yard first..(even charity begins at home).

    This carries no weight but fellas Anthony and Ed gave arrurances that their (prisoners) words stay locked until death (natural or otherwise). Someone tell me whats your problem with that.? I grew up during it, I don't have a problem.

  3. Chris,

    another good post. Between you and these two guys your commentary on this case has been without equal.

  4. A very, very good piece from Chris.

  5. Thanks. I wish it seemed to do more good!

  6. I thought this was another superb post from Chris,the fallout and repercussions from Boston College,s lack of integrity and backbone in this will be felt for a long long time to come ,republicans are well used to crab suas Fuck up!and it was a mighty achievement on Anthony,s behalf to get republicans to talk at all,he and Ed should be honoured not pilloried,As Chris said can you imagine the clout a defense of the BC tapes would have had if as suggested Boston college and all the other major universities had joined forces in defense of this project,their failure in looking the other way may come back to haunt them and shows not just Boston college but indeed the other universities to be morally bankrupt.

  7. Anthony.

    That's better than bad news, told you to keep your head high.
    To many Inter country Laws are being agreed upon, without Legal thought, ie, the what "if scenario", is it not illogical that the U.S. can have anyone extradited from the U.K, But, they didn't expect to be turned down RE the young Scottish computer hacker.
    The Americans are keeping that in mind!.

  8. Chris,

    I can think of none who have doen more than you to tackle this head on with penetrating insight.

    Belfast Bookworm,

    scathinmg and deservedly so. BTW have my personal e mails been getting thru to you?

  9. Anthony; nope. Not a thing via email?

  10. Ok. I tried again there. Have had a few problems with it

  11. Frankie

    I'm still trying to understand what the problem is with the BC tapes.

    Different interests have different problems. The Brits are playing a dirty game. At one level they are exercising the power that SF in a manner of speaking invested in them by going for the GFA where republicanism was crucified and in the reverse of the order of things the Brit state role in Ireland was resurrected. The Brits are showing that they are daddy on the block.

    I don’t think there is any one motive in the Brit behaviour but I do feel that they are making it clear that if SF continue to delve into the past then there is a price to pay.