The First Circuit appeals court ruled last week against a First Amendment claim that academic institutions should be able to shield information obtained through oral-history projects. The decision has engendered considerable concern about the future of academic freedom. Historians, sociologists, and free-speech advocates fear that if prosecutors have the power to subpoena important information unearthed by academics about the inner workings of terrorist or criminal groups, former terrorists and criminals will stop talking to academics. This will deprive the public of insights into how these groups function.
The court didn’t buy it in the case of Boston College’s now-notorious Belfast Project, a research initiative intended to provide an open forum for participants in the Irish struggles to discuss the past conflict. But the significance of the court’s ruling is not simply in clarifying the standards that academic researchers need to follow. It is in its stark, cold language. The court rightfully rejected both the mythology about academic freedom and the romanticism about the Irish conflict.
The facts surrounding the BC project are complicated because research administrators and the college are still fighting, together and separately, various aspects of a case that started when interviewees were promised total confidentiality until their deaths. That promise appears to have led some former terrorists to spill a lot of beans. The publication of a book by the project’s researchers led British authorities to seek a subpoena, pursuant to a US-UK treaty, in search of information about unsolved murders.
The promise of confidentiality was inconsistent with BC practices, as well as oral-history standards. Nonetheless, defenders of the privilege have invoked two justifications for maintaining the privacy of the material: the importance of academic institutions being left alone and the supposedly unique circumstances of the Irish struggles.
Putting aside the fact that the First Amendment doesn’t recognize academic research projects as protected entities, universities are — especially when it comes to international security concerns — rarely left alone. Nuclear science programs fall under strict government regulation; administrators must validate the continuing enrollment status of students from other countries.
Most oral-history projects don’t even touch on criminal behavior, and those that do are usually shielded by the statute of limitations; prosecutors can’t bring cases if too much time has passed. Thousands of books have been written about terrorists and criminal enterprises without the subjects being given promises of total immunity. But we have long determined that the benefit to society and to victims of murderers — be they the IRA, Al Qaeda, or even Whitey Bulger — far outweighs the benefit of letting them blithely disclose information about themselves or others in pursuit of a historical record.
The court was also disinclined to regard the Irish struggles as a unique circumstance, because of America’s historic role in promoting peace there. This argument did impress one of the appeals court judges, Juan Torruella, who, despite his concurrence, felt inclined to wax on about the “troubles” in a footnote. But the court’s majority opinion is thankfully free of any such delusions. There should be no exception for “good” terrorists.
Indeed, the Belfast Project has probably done more to open old wounds than heal them. Under the “Good Friday” peace agreement, almost all prisoners were released by the British government. It is a common reconciliation practice for both sides to promise not to dwell on the past as way of building hope for the future.
Reconciliation in the Irish struggles is not, as the Belfast Project believed, a matter of history. It is ongoing, as is the pain suffered by those who lost family members. The court’s opinion recognizes that neither the court, nor any university, should undermine either the Good Friday bargain or the treaty that surely supports America’s interests in promoting legal cooperation on both sides of the Atlantic.
Closure of this historic struggle, or any other, is not advanced through some perceived and self-appointed academic privilege invoked by American researchers. It is, instead, measured in political gestures both grand and small. Last month, Queen Elizabeth publicly shook hands with Martin McGuinness, the former commander of the Provisional IRA who is responsible for her cousin’s death in 1979. That privileged handshake is actually what makes history.
Juliette Kayyem can be reached at email@example.com. Follow her on Twitter @juliettekayyem.