If you study living people who stir up controversial things overseas, this story is about you. In one possible ending, federal prosecutors seize your research materials and send them to a foreign government. Big pieces of the narrative of what happens next vanish, though, because it's mostly written in secret. Despite the opacity, the lesson is clear: A significant threat to academic freedom has largely escaped notice.
A small piece of this story has been reasonably well covered in the news media. In May, Boston College received a federal subpoena for oral-history materials held in its John J. Burns Library. The documents filed in support of the subpoena were sealed, but one fact is evident: The U.S. Department of Justice is acting on behalf of the British government. The notes and audiotapes sought by the U.S. attorney in Massachusetts were created under the guidance of Boston College's Center for Irish Programs, in its Belfast Project. Researchers recorded detailed interviews with former loyalist and republican paramilitary members who fought in Northern Ireland during three decades of the Troubles over the status of Northern Ireland.
Because frank discussion about armed civil conflict could get interviewees killed or arrested, researchers secured cooperation with a promise of strict confidentiality until the interviewees' deaths. Now the subpoena threatens that promise. Dolours Price, one of the two members of the Provisional Irish Republican Army whose interview tapes are being sought, is still alive. If the Justice Department succeeds, a private discussion about historically recent political violence in Northern Ireland will be sent home, for purposes that are at best unclear, into the setting of a recent and fraying peace. In fact, that has already happened: The second Provisional Army interviewee, Brendan Hughes, died in 2008. Boston College has already turned over his interview materials, while trying to quash the subpoena for its interview with Price.
Promises of confidentiality are always problematic in oral-history scholarship. In a legal guide to the field, John Neuenschwander says "the law is quite clear": Guarantees of secrecy "do not survive a subpoena." But aggressive action against scholarly secrets threatens to eliminate the very materials that governments may wish to use. That is the warning in an affidavit in the Boston College case by Clifford M. Kuhn, past president of the Oral History Association, who cautions that once potential sources see the confidentiality of materials breached, "they will be far less likely to take part in such activities." Turn scholarship into a police instrument, and scholarship shrivels into silence.
These pieces make up the story that has appeared in newspapers. The rest is more troubling.
More than 30 years ago, national governments began to simplify and accelerate the process by which they could ask other governments to assist with criminal investigations. A new type of agreement, the Mutual Legal Assistance Treaty, known as MLAT, gave police a way to get direct investigative help from other countries. Before the creation of such treaties, justice systems communicated across national borders through diplomatic channels. Signatories to the new treaties each now designate a "central authority" for receipt of foreign requests. In the United States, that is the Office of International Affairs, part of the Criminal Division of the Justice Department. Diplomats don't need to be involved.
The United States has several dozen of these treaties with other countries. You can find them on the State Department Web site by searching for "Treaties in Force." The United States ratified its first MLAT in 1976, and the other party to that treaty gives a hint of what officials had in mind. They started with a financial center, Switzerland. Since then, treaties have mostly been used to control money laundering, cybercrime, and the flow of funds for terrorist organizations, arms traffickers, and drug cartels.
But those boundaries are usual, not inevitable. A 1996 report from the Senate Committee on Foreign Relations describes mutual legal assistance as an "obligation" imposed on treaty signatories. While authorities have some leeway to refuse requests, they are generally expected to say yes. That requirement drags American law enforcement into problematic investigations, as the committee report makes clear: "Most, but not all, MLAT's have covered a broad range of crimes with no requirement that a request for assistance relate to activity that would be criminal in the requested State." When another country regards its political dissenters and antiregime activists as criminals, the Department of Justice can be asked to adopt that position as an investigative proxy. The United States has agreed to help other countries investigate "crime," wherever that word may take us.
Nor are the boundaries around the concept of investigation well defined. The same Senate report explains that the MLAT between the United States and the United Kingdom obligates the signatories to assist one another with legal "proceedings," which can include civil-asset forfeiture or the imposition of civil or administrative sanctions by any tribunal. You would have to work hard to come up with broader parameters: Any agency conducting any kind of administrative investigation or hearing may have recourse to investigative assistance by the Justice Department.
There are exemptions, but they are defined with similar imprecision. The U.S. government can refuse to provide assistance if doing so would diminish American sovereignty or security, or if it would harm some other "essential interest," or if it "would be contrary to important public policy." Those are conditions that protect governments, not citizens—or scholars or archives. One condition in the treaty with Britain verges on reassurance, however, the Senate report tells us: "Requests related to political offenses usually are excepted."
To understand how that undefined exemption works in practice, though, look again at the subpoena delivered to Boston College. News reports have sugested that the British request for Belfast Project interviews originated with the Police Service of Northern Ireland, the successor agency to the Royal Ulster Constabulary. The identities of the Provisional Army members whose interviews are being sought suggests investigators are looking for information about paramilitary murders that took place during the Troubles.
There are many problems with that claim. The first is that the Belfast Project recorded interviews with paramilitary members on both sides of the conflict; the British government is only seeking those of republican militants. The Ulster Volunteer Force, the Ulster Defence Association, and other loyalist paramilitaries get a pass. Crime, or politics?
The second problem is what the British investigation intends to accomplish. So far, that point is a matter of guesswork. But it's not hard to guess. The British request follows a newspaper interview Dolours Price gave last year in which she discussed the 1972 murder of Jean McConville, a Belfast widow (and mother of 10 children) killed by the Provisional Army as a suspected informant. Brendan Hughes, the other interviewee whose tapes were sought, also discussed McConville's murder in his Belfast Project interview, a fact disclosed in a book published after his death. So the British government is seeking only two interviews from a larger project, and both interviewees have spoken about the same unsolved murder.
But none of those connections mean that the police are conducting a murder investigation, in the usual sense of the term. A 2006 report from the Police Ombudsman for Northern Ireland determined that the police had never bothered to investigate McConville's murder. Commenting on that report, the chief constable of the police service admitted it was almost certainly too late to solve and prosecute a then 34-year-old murder, especially one that had been ignored in the first place.
So what's the point of an investigation that no one really believes will lead to arrests and convictions? Both Hughes and Price have claimed that their commander was Gerry Adams, the longtime Sinn Fein leader, who has always denied having been a member of the Provisional Army. While the audiotapes of the two Belfast Project interviews have no use in court against McConville's murderers, they promise to give the British government the voices of former members saying that Adams belonged to the group. Acting under the terms of a treaty that compels them to help another government solve crimes, the Justice Department is using the subpoena process to gather materials that can embarrass the principal antagonist of the British government in Northern Ireland.
On paper, Mutual Legal Assistance Treaties draw a boundary between crimes and political offenses. In practice, that line blurs.
The implications for academic researchers are clear and disturbing. Recently, the Republican Party of Wisconsin used public-records laws to gather messages from the state e-mail account of William Cronon, a professor at the University of Wisconsin at Madison who had publicly criticized the state's Republican governor. Responding to that request, the university's lawyers were able to carve out a broad range of exemptions that protected Cronon's right to communicate privately with students and people discussing continuing research with an academic professional. Clear statutory language and well-settled case law provided unambiguous protection against a politically motivated inquiry.
No such clarity exists when foreign governments use MLAT's to pursue information on American campuses, a process untested and hopelessly opaque. I traded e-mails with a press officer at the Department of Justice's Criminal Division recently, trying to get general information about how federal prosecutors evaluate requests for mutual legal assistance from foreign governments. The answer to every question was the same: We will not comment in any way. A sealed request for a federal subpoena and a news-media blackout leave us to wonder what our government is doing on behalf of a foreign government, and why. Its officials simply won't say.
Boston College is fighting in court to protect Belfast Project interviews from disclosure. It had asked the United States District Court in Boston to quash the subpoena for its records on the grounds that release could threaten the safety of interviewees, the continuing peace process in Northern Ireland, and the future of oral history. On July 1, the Justice Department filed a response to the motion to quash, dismissing academic freedom as a legally meaningless "quasi-privilege" and saying the college had offered "no claim of a cognizable federal privilege."
The outcome will have implications far beyond a single campus. There is no reason to leave the question to the courts. Universities and professional organizations like the American Association of University Professors and the American Historical Association belong in this fight, pressuring the Justice Department to proceed with greater care. The boundaries around MLAT's are a political problem, and they will be shaped by political efforts. Foreign governments have opened a door to confidential research material held on American campuses. That door must be closed and locked.