The gathering legal battle over Boston College's archives dealing with the Northern Ireland Troubles is witnessing the drawing up of battle lines with both the expected, and perhaps less expected, taking positions on each side.
The effort to lay hands on confidential oral testimony - given to the college on the basis that it would be sealed until after the death of the individual testifier - was initiated by the Police Service of Northern Ireland and the North's Public Prosecutions Service, and is being led in the U.S. by the U.S. Attorney's Office in Boston.
This array is being opposed by Boston College itself, with the famed Jesuit school being supported in its resistance by lawyers in the Brehon Law Society.
Also in the mix, and, to the surprise of some, on the side of police and prosecutors in the matter, is the Boston Globe which weighed in with a recent editorial that urged the rescinding of the guarantee that testimony would be kept under wraps so long as those who testified were still alive.
Opined the Globe in its editorial: "Boston College is justifiably proud of its relationship with Ireland and its role in helping to shepherd the Good Friday Agreement of 1998. Those close ties are one reason the college has been waging a court battle against a U.S. government subpoena, requested by British authorities, which seeks testimony from a sealed oral history project about the war in Northern Ireland.
"Boston College's concerns are valid, but the interests of justice and diplomacy outweigh any claim for special protection. The promise that was made to participants in the oral history project - that their testimony wouldn't be released until they died - must be rescinded in light of a murder investigation."
The editorial went on to explain that the testimony in question had come from Dolours Price, a former IRA member.
"She was interviewed several years ago as part of the Belfast Project, a laudable effort to record views and stories from both sides of the Troubles, before the participants pass away."
British authorities, according to the editorial, believe her testimony contains information about kidnappings and murders committed more than 30 years ago, including the death of a widowed mother of 10.
Stated the editorial: "Boston College argues that releasing Price's testimony could have a chilling effect on oral historians everywhere. But carving out a special legal exception for oral history isn't consistent with judicial interpretations of the First Amendment.
"The courts have set high standards for issuing subpoenas to journalists - whose role is specifically protected by the First Amendment and who serve a watchdog function in our democracy - but even reporters must testify under certain conditions. The benefits of oral history are more diffuse. And if the U.S. government refuses to honor this British request, it could reasonably expect Britain to put up similar roadblocks down the line - at a time when all forms of international cooperation on terrorism are matters of life and death."
The editorial added that supporters of Boston College say the subpoena itself could be politically motivated, since Price's testimony might contain information damaging to Northern Ireland nationalist leader Gerry Adams.
"And the college suggests that Price and her interviewer could be in danger of retribution for talking at all. If those dangers are real, the British government should offer reasonable security.
"But potential threats and conspiracy theories don't change the fact that murders, no matter how old, are worth pursuing. If a university in Ireland had information that could help solve, say, a cold-case murder from civil rights-era Mississippi, American authorities would want access to those files - and would be justified in seeking them."
The Brehon Law Society has taken a sharply different tack to that of the Globe, one which, somewhat ironically, raises concerns about how the subpoena might serve to impede the future work of journalists.
In its letter, recently presented to both the PSNI and PPS, the society communicated its "concerns" over the subpoena and made reference to the fact that it sought tapes recorded by two individuals, Brendan Hughes and Dolours Price, and recorded as part of the university's oral history archive on the Troubles.
One of these individuals, Brendan Hughes, died in 2008, the letter notes. The Brehons in part argue that the subpoena threatens Boston College's academic mission and its important role in the peace process. The society's letter states that Boston College is a highly respected university which has long devoted institutional capital, faculty time, and archival resources to promote the peace process and preserve the historical record.
It further notes that the university has already publicly expressed its view that release of the tapes may threaten peace initiatives, "a view not lightly expressed."
The letter proclaims that the Brehons have had no contact with the university or its counsel, although some of the society's concerns parallel those of the university, this being specifically a serious threat to academic integrity and the follow-on implications of that threat posed by the subpoena.
The Brehon document, delivered to the PSNI by society member James Cullen, argues that "forced disclosure of these tapes will make many sources of information for academics and the press very reluctant to make further disclosures,impeding both important academic research and vital press inquiries."
Continues the letter: "Statements on tapes that were not sworn and were intended not to be disclosed until after the deaths of the people making the recordings have no legal value. It must be recognized that this is 'information' and not 'evidence.' It is not sworn testimony which could be used in a court of law. These statements may be in whole or in partself-serving and, for all anyone knows, contain deliberate falsehoods designed to discredit or defame others.
"Of more immediate concern is the Article 2 issue (right to life under the European Convention of Human Rights). Maintaining confidentiality of the tapes is not merely to protect the individuals whose information is recorded, but to protect life, liberty and security of the person in relation to those whom that information might affect or implicate.
"If the focus of the investigation that gave rise to the subpoena is any current (i.e., post conflict period) suspected criminal activities of dissidents, then the investigation should pursue those activities. Evidence relevant to any recent activities will not be found in historical tapes of events that occurred prior to 1998."
The Brehon letter notes that the subpoena may be in aid of a "fishing expedition" that masks an inability to gather evidence of recent criminal conduct by dissidents in the North.
"Fishing expeditions played out through subpoenas seeking information that is not relevant to pending charges serves only to bring into disrepute police work that lacks professional energy and strategic valuation of its direction," the letter states.
And it concludes: "Direct attacks on academic research and preservation of historical recollections are ill-suited prosecutorial activities unless the archival documentation is (a) admissible and non-cumulative; (b) no other source of critical evidence is available after diligent and professional police investigation; and (c) the societal cost of infringement of historical archives, the subsequent unwillingness of historical figures to trust historians or journalists, damage to the peace process and endangerment of people's lives, is outweighed by the archival material."
