Comments on The Pensive Quill: A Response to Ted Folkman

Robert, RTE pulled the Dunn interview. I doubt ve...

2012-02-04T13:31:45.314Z

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:

http://chrisbrayblog.blogspot.com/2012/01/passive-receptacle.html?showComment=1328040029607#c5974861272374835000

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.

Anthony, Thank you for taking the time, in the ci...

2012-02-03T23:41:29.179Z

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.

Robert, As always, good to hear from you. Unfortu...

2012-01-28T22:49:22.725Z

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.

Anthony, "BC did not give each interviewee a...

2012-01-28T17:47:35.586Z

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?

Anthony, I think you've BC down to a T. It...

2012-01-28T07:56:30.687Z

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.

Thanks, Anthony. I'm enjoying covering this ca...

2012-01-27T01:32:00.469Z

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).

Ted, thanks for commenting. Your views are always...

2012-01-26T21:37:37.541Z

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.

I have responded in full to a very similar post at...

2012-01-26T21:23:34.448Z

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.