Federal prosecutors have issued a subpoena to my very own Boston College, ordering the school to turn over the tapes of two interviews from two former soldiers of the Provisional Irish Republican Army, one of whom is still living, which may contain important information about the killing and disappearances of people in the 1970s who were thought to be British informants. The tapes could implicate Gerry Adams, the Sinn Fein president, who has always denied being a member of the IRA. BC is said to have granted a firm promise of confidentiality until the death of the two interviewees, Brendan Hughes (who died in 2008) and Dolours Price (still living). In the tape, Mr. Hughes is asked about the confidentiality agreement, to be used only after he dies:
“I don’t have a problem with that,” Mr. Hughes replied. “If I did have a problem with that, I wouldn’t be sitting here talking into the microphone. I think a lot of the stuff I’m saying here, I’m saying it on trust, because I have a trust in you. I have never, ever, ever admitted to being a member of the I.R.A. — never — and I’ve just done it here.”
In order to abide by the promise of confidentiality, BC may have to destroy the tapes rather than cooperate with the subpoena.
BC now faces a significant ethical dilemma. Do they have a stronger moral obligation to (a) cooperate with the subpoena and turn over the tapes or (b) uphold their promise of confidentiality to protect the interviewees? Those who argue that (b) is a stronger moral obligation point to thier concerns about the safety of the interviewers and interviewees, as well as the future of oral history projects which depend on such confidentiality promises.
Confidentiality agreements to discuss sensitive subjects, including criminal activity, are commonplace in oral history research, though often with the caveat that they are not protected from the law.
Moloney said that subjects interviewed in his project signed a written confidentiality agreement, but that it contained no clause cautioning participants that the promise might not withstand a government subpoena.
“If that had been there, we would have had no interviews at all,’’ he said. “If we were saying to them: ‘We want you to tell us everything about your life as a bomber and gunman. And, by the way, if the cops come, we’re going to hand all this over. Is that OK with you?’ It would have never gotten off the ground.’’
Moral theologian Stephen J. Pope, however, argues that (a) is stronger, and that a promise of confidentiality is “naive” and “manipulative” when regarding information that “has such grave significance for society.”
“It’s important to get legal advice on what can and can’t be promised in good faith to the interviewees,’’ Pope said. “At the very least, there is negligence on the part of the researchers, from what I can tell.’’
The two researchers who conducted the interviews, who were under Moloney’s supervision, should have known that what their subjects told them could potentially be used in court, Pope said. The law does not recognize the authority of academics and journalists to keep information confidential, he said.
It seems to me that Pope is right in this case. Despite the fact that Hughes revealed the information about his actions with the IRA under the assumption of confidentiality, it was a false assumption, one which he could have foreseen being subject to subpoena. More importantly, the tapes might reveal what happened to those who mysteriously disappeared or died during the Troubles, allowing the survivors an opportunity for closure.
Aquinas actually offers some moral guidance for a case such as this, asking “whether a man is bound to accuse.” He cites Leviticus 5:1 in the sed contra: “If any one sin, and hear the voice of one swearing, and is a witness either because he himself hath seen, or is privy to it: if he do not utter it, he shall bear his iniquity.”
In cases where the common good is at risk, a person is morally obligated to accuse the sinner of the crime, “provided he can offer sufficient proof (II-II, Q. 68, art. 1, c).” In response to the the objection that no one is bound to accuse when they have been promised to secrecy, Aquinas argues that the responsibility to the common good is stronger than the responsibility to the secret:
It is contrary to fidelity to make known secrets to the injury of a person; but not if they be revealed for the good of the community, which should always be preferred to a private good. Hence it is unlawful to receive any secret in detriment to the common good: and yet a thing is scarcely a secret when there are sufficient witnesses to prove it (II-II, Q. 68, art. 1, ad. 3).
Turning over the tapes is, I think, respecting the need for truth and justice in the maintenance of the common good. It is unfortunate that a promise of confidentiality must be broken, but in this case, it seems that the promise itself was contrary to the common good.