Michael McConville carries the remains of his mother Jean McConville to St Pauls church Oct. 1, 2003 in West Belfast, Northern Ireland.  Source: Getty Images

Murder, Gerry Adams and Protecting Professors

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Outside of novels and television (remember Inspector Morse?), murders are never solved in dusty college libraries -- which is why thearrest and questioning of Sinn Fein leader Gerry Adams in connection with the death of Jean McConville has importance beyond the matter of transitional justice for Northern Ireland.

The evidence that apparently leads to Adams in the 1972 killing came from an archive of oral history interviews conducted by two researchers and stored at Boston College. The interviewers promised their subjects that the transcripts would stay secret until all mentioned had died. But when the subpoena came, BC had no credible defense. The university appealed all the way through the U.S. courts, which held against it. The researchers' cries of academic freedom went unheeded.

Was the disclosure of the material good or bad? As someone who has used oral histories done many decades ago extensively in research, my instinctive sympathies lie with the idea of keeping the subjects' confidence, to encourage them to speak freely. But instinct isn't argument -- and working the subject through suggests, surprisingly, that maybe universities and their libraries should be kept out of the oral history game.

Start with the law. Forty-nine states -- but not the federal government -- have statutes or judicial decisions that shield journalists from revealing their sources or what those sources told them. Delaware's law defines "reporter" to include an educator or scholar who makes a living disseminating information to the public; but ordinarily, these so-called journalist shield laws don't mention academic researchers. A creative reading of these laws might try to extend the privilege from the journalist to the scholar on the theory that their purposes are roughly parallel. Indeed, one of the researchers on the BC project was a journalist by profession and training.

The problem with this creative theory, however, is that journalists serve a pressing present interest in enhancing free speech, itself a constitutional value crucial to a democracy. The public's need or even right to know is much less available as an argument when the public won't know about the material in question until some unspecified future time. And in any case, this approach wouldn't help in federal court, where there is no journalist shield rule in the first place.

Should the law be expanded to accommodate scholarly research? There is a strong case for doing so, albeit not on free speech grounds. It will be rare that a subject will reveal lawbreaking, and if subjects know they cannot, it won't reduce crime. It will reduce interviews. There is an important social and intellectual value in knowing the truth eventually, even if not as significant as the journalist's imperative to tell the truth now.

In fact, a scholar's privilege is probably less subject to abuse than a journalist's. Leakers often use the press to manipulate public perception of an issue. But it is the rare scholarly interview indeed which can affect public attitudes or perceptions -- and that can only occur after significant time has passed.

In the real world, however, academics aren't much of a lobbying force. I have a lot of trouble believing that even one state would bother to change its laws to protect scholarly interviews. As for the federal level, forget it.

So what's the solution for those of us who like oral history interviews and want them to exist? Here's where things get perverse. Ordinarily, university libraries are natural repositories for oral history. They take a long view (or they used to). They last a long time (or they're supposed to). Columbia University's library, a pioneer, commissioned and preserved extensive oral history work in the middle of the 20th century, and others have since followed.

Yet the institutional character that makes the libraries a natural repository turns out to be a disaster for keeping secrets. Consider what happens when a journalist is subjected to federal subpoena. If she wants to preserve her reputation, she has to resist it -- even to the point of going to jail, as the New York Times's Judith Miller did to protect E. Lewis "Scooter" Libby in the Valerie Plame incident. Most newspapers don't coerce their reporters to disclose in compliance with federal orders -- they protect them or at least stand to the side. This works because the information and the notes belong to the journalist, not the paper.

But a library isn't a person. When the court orders a library to act, it can't exercise civil disobedience. The library's great appeal -- its institutional nature - becomes its most basic liability.

The answer may well be for researchers to hold onto to their tapes and transcripts themselves, and keep them as their own, privately controlled property. Maybe -- just maybe -- the researchers could loan their materials to the library for safekeeping, then claim them back when the government comes snooping. This would be a risky strategy, since the government could argue that the library was the true custodian. Yet it might be the best way to balance the risk that the interview materials might be lost against the risk that confidentiality might be breached.

It's sad that university libraries, already hampered by student disuse and shrinking budgets, might have to take another hit in receding from ownership of oral histories. But it's a worthwhile price to pay for keeping the subjects talking. History demands no less.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Toby Harshaw at tharshaw@bloomberg.net