Archival privilege is a joke

Nixon standing with Lyndon Johson outside the LBJ Library in Austin , Texas, 05/22/1971. NARA identifier #194358

Nixon standing with Lyndon Johson outside the LBJ Library in Austin , Texas, 05/22/1971. NARA identifier #194358

Archival privilege is an idea so totally poisonous to the core work of archivists that I have to write more, if only to ferret out anyone who’s in favor of it.

Privileged communication, things you say to another person in confidence which a court cannot ever hear, flows from the Fifth Amendment’s protections of individual life and livelihood and its proscription of self-incrimination. Wives and husbands are one body, so you can’t be compelled to incriminate your spouse. You can’t get the unvarnished medical advice you need to preserve your body unless you talk to your doctor in confidence. You can’t get to the root of the psychological illness that’s killing you unless your therapy is confidential. You can’t secure the legal advice that will keep you out of jail if lawyers could be compelled to incriminate you. And you can’t reasonably be expected to have forthright deliberations in the Oval Office, the kinds of chats wherein geopolitical strategies designed to preserve the lives and freedoms of billions of people are hatched if you think your confabs will be leaked.

In the case at hand, lawyers want to see if Irish partisans “confessed” to crimes in a series of oral histories. Communication here had no therapeutic purpose, it wasn’t initiated by the partisans’ seeking counsel, legal, spiritual or otherwise, and revealing the conversations won’t start World War Three. You could argue, as John Kerry did, that opening the oral histories in discovery would, in fact, cause the Irish equivalent of World War Three, but that would make you look stupid because the Good Friday accords have held for 15 years despite harsher shocks than this.

What archival privilege amounts to in this case is archivists saying: Look, we know our confidence doesn’t ensure due process, or make people sane, or safeguard their health, or preserve national security. It’s just that we promised we wouldn’t tell anybody about all the torture and stuff. And these are our friends, and we’d really like to not disappoint them.

And seriously, privilege is forever. Swidler says so. And if either party can assert archival privilege, archivists are suddenly faced with the prospect of maintaining physical and intellectual access to information no one will ever see.

The fundamental misunderstanding is about history. Kerry’s and Boston College’s arguments are based on the idea that history is something that has passed on. Oh that, that’s ancient history. For the rest of us, the whole point of preserving primary-source documents is precisely to upset current events. History is a debt that can never be repaid. It is passed along, taught from generation to generation. It doesn’t stop running. It roots down the mountain, it overturns it overturns it overturns

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