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President Nixon, H.R. Haldeman, and military aide boarding Marine One, 07/16/1972, NARA identifier #194438

President Nixon, H.R. Haldeman, and military aide boarding Marine One, 07/16/1972, NARA identifier #194438

Ed Moloney and Chris Bray have stepped in to pull this blog back from the brink of libel, for which I thank them. I’ve put a timestamped strikethrough on the offending sentence.

Bray points out that A Secret History of the IRA was not, as I wrote in all caps here, based on the oral histories in the Belfast project’s collection. Voices from the Grave used interviews with Brendan Hughes and David Ervine, who are in the collection; the embargo on those interviews ended with the men’s deaths, and those materials are open to “any researcher.”

Here’s every hit for “interview” in Secret History.

Here’s every hit for “interview” in Grave

The interviews footnoted in Secret History look to be entirely in Moloney’s personal collection, all conducted between 1998 and November 2000. Only one appears to have come from another collection, Anthony McIntyre’s May 2000 “Interview with former Belfast IRA member (B),” in an embargoed collection at Linen Hall Library. This blog does not dispute Moloney’s statement that the work for the first book was all done by the “summer of 2001,” which leaves only a little overlap with the BC start date of “early 2001.” It seems odd that the interviews for Secret History would have nothing to do with the BC project, given the proximity, but if the man who did the interviewing says that there was a firewall between his interviews as a journalist and his interviews as an archivist, this blog has to take him at his word.

It’s important to note that since virtually all the interviews in Secret History are with a reporter’s confidential sources, and since neither the Belfast project nor Linen Hall has public finding aids, there’s no way for this blog to confirm that none of the interviewees for Secret History ended up giving oral histories for the Belfast project. Links to public finding aids to these collections are welcome; please post them below.

It’s also important to note that, unless I’m terribly mistaken, I’ve never misspelled Ed Moloney’s name. Perhaps he has me confused with these folks, who seem to think he’s a Maloney. And, not to deepen the flame war, but I did stick your name into Amazon; your book was linked in the original post. Sorry you didn’t see it.

Ultimately, I think Moloney and Bray and McIntyre and this blog are in the grand scheme all on the same side. I oppose archivists’ privilege in no small part because the first body to assert the privilege in the United States was the FBI; having used all their FOIA exemptions to give Frank Wilkinson a 95% redacted version of his own file, the spooks invented “archival privilege” out of whole cloth, and the spooks lost. Archivists in this country thought the topic so skunked that it sat dormant for twenty years. The biggest archives in this country is NARA, and establishing archivists’ privilege means wrapping NARA’s collections in restrictions which are bound by their nature to be opaque, arbitrarily-enforced, and because of how privilege works in the US, permanent. It’s the FOIA exemption to end all FOIA exemptions. It’s Christmas for the secret police.

Finally, it’s worth remembering why we call it truth and reconciliation. There can’t be reconciliation without truth.

The Boston College Subpoena crew is up with a reprint in full of Auriti et al.’s survey of case law surrounding researcher’s privilege, which is one of the flimsier shields claimed by Ed Moloney in this whole affair, and unfortunately for him the survey undermines his position.

Start with where researcher’s privilege might exist. In laboratories, for starters, because scientific research involves human life and human subjects. In laboratories of public universities, and in those funded by the federal government, whose records may be subject to state FOIA requests. Researchers object to disclosing information on a number of grounds, including the chilling effect on controversial research, violation of test subjects’ privacy, harm to work in pre-publication, and so on, all flowing from the First Amendment.

Courts have defended non-disclosure where, as in Dow Chemical v. Allen, a giant corporation is trying through administrative subpoena to crush researchers who proved it makes a toxic herbicide, which is basically the plot of Michael Clayton minus Tilda Swinton exploding your car. That’s about it. Everywhere else, they’re skeptical, and Moloney’s going to fail all of the balancing tests. None of his research involves the personal vital information or health data of individuals. Moloney has published results of his research, over and over and over again, in books and films and television, so there can’t be harm to his ability to speak. It’s not FOIA or an administrative subpoena he’s trying to encumber, but a murder investigation; the state usually gets what it wants where murder is involved.

When Moloney is denied cert the whole shebang falls back to the First Circuit, where oral histories or transcripts thereof will be reviewed in camera, and that’ll be the end, but for archivists, varieties of privilege are going to keep coming up. So what have we learned here?

Briefly, let’s sing a song for our maligned little brother records management! How can universities avoid a non-disclosure fracas in future, without resorting to phantom privileges? Thus:

Encourage faculty to use reasonable records management practices (e.g., consider which records are necessary or useful to retain, and for how long); establish and follow record retention/disposition schedules that provide for regular review and, where appropriate, destruction of records that are no longer needed.

That’s right! Selection and appraisal. Not sexy, but if we do our actual jobs in the first place, by, you know, explaining to donors that we can’t buck grand juries for them, that their troubles are their own, we don’t have these problems.

Also celebrity, even minor, History-Channel-B-reel celebrity, is no reason to spend years in litigation on a donor’s behalf. Celebrity is no reason to write deeds of gift which include oblique, unenforceable pinky-swears of confidentiality. None of our researchers, and none of our donors is entitled to exclusive access and use of materials. We aren’t a personal vault, or a safe, or a file cabinet, or a curio. Go buy yourself one of those instead.

Finally, we have to talk about the donor-archives relationship. Extending special protections to one high-profile donor opens the door to other future donors. Future donors may be in a position in the present to advocate for protections they hope to enjoy. One wonders why John Kerry hopped on this train, apart from the stated reasons because seriously the IMF is a greater threat to Irish stability than these tapes are, and then one figures Kerry got his juris doctor from BC, and no doubt there’s some embryonic agreement between him and the archives, with similarly ethically bankrupt promises of secrecy.

Contra basically everyone, especially Scott Cline and Brien Brothman who I saw in Chicago a couple years ago, conceptualizing archives as a sacred space of authentic encounter with the thing-ness of history, governed by the conjoining of values in covenant, perverts what archives can and can’t do. Our fealty to donors, which like the Abrahamic covenant is not exactly reciprocal, cripples our capacity to serve any but parochial interests. Given the choice between fealty to the law, which ideally is made and held in common, and fealty to a special relationship with a chosen class, I fail to see how ethically-minded archivists do anything but defend the law. Back down to earth, write your contracts, and let’s stop this desperate clutching at metaphysical straws.

Arrangement defeating bulk. William H. Smock, Buckaroos in Paradise, via LoC American Memory

When we grow a retention schedule, either by defining new classes of records to be retained, or by stretching their retention period, is research intentionally suffocated, or just accidentally drowned?

In 2011, a guy looking for protection under 2302 came to Sen. Charles Grassley with testimony that the SEC had been destroying records of investigations into securities fraud. These quasi-investigations were called matters-under-inquiry.

Matters-under-inquiry are to investigative case files as sour mash is to bourbon. MUI records are created by low-level SEC staffers based on reasonable suspicion of wrongdoing. If you believe this source, MUIs are barely anything more than a flag in an SEC database designed to assign tasks to staff. The whole point of MUI is to determine which allegations, substantiated by evidence, can move forward to full investigation, with subpoena power behind it. MUI records are therefore on retention because our legal system enshrines presumption of innocence: the MUI which doesn’t merit an investigation is a record of no evidentiary value. Valueless records of hearsay, rumor and fiction have of course been collected over the years, by people like this, but it’s not something democracies should be doing.

Apart from being Stasi-like, is permanent retention of materials gathered in an informal, preliminary or half-assed inquiry bad for some other reason? MUIs are of the unique category of records of things which didn’t happen. And that’s philosophically pretty interesting, but the argument beneath the umbrage — Matt Taibbi’s sputtering rage, totally innocent of how records management works or what it’s for, with a fourteen-year-old’s “discovery” of Orwell undergirding the spiel, is exemplary — was that the records document the decision-making capacity of the SEC, namely, that the MUIs show what the SEC pursues by showing what it declines to pursue. It’s history drawn in negative space.

More legitimately, you could argue that MUI records should be kept because we in the present don’t get final cut on history. Who knows whether the Hay, Nicolay or Bliss text, or some other stack of napkins and newsprint was what Lincoln read from? Good thing we have all these variants, history is complex and heteroglossic, we have no idea what researchers will actually use in the future so be humble about appraisal, and err on appraising everything in.

Ultimately, as people with hermeneutic power and right over institutional collections, the broad populism of our favorite strategies conceals an unacknowledged wish: that bulk might stunt the inquirer’s attention, that transparent yet boring proceedings are per se opaque, that raw bureaucratic production might dull the blade of the “necessary and sufficient”-standard.

And as more of our records become less physical, the lure of deep and broad acquisition beckons. But that wasn’t the case in 1981, when MUIs as a document class first came into being. These were papers which, to keep due process afloat, are better off dead than alive. There are some things that are ephemeral by their nature, and some whose ephemerality we have to enforce to avoid turning archives any further into surveillance mechanisms.

Finally, the more we bring in, and the finer-toothed our description of it, the narrower the difference between history and the lived present. Our representations of historical sources dissolve to become replicas. The paradox of cataloging, that our broken speech reveals the inner nature of what’s described more than a literal transcription ever could, is completely annihilated, and we swim or drown in a sea of trivialities, chattel of the pale king.

Curating some lobster, NARA identifier #548767.

Curating some lobster, NARA identifier #548767.

You would think that the law librarians at Georgetown would be able to clarify some of the muddled thinking about archives certain archivists have been doing lately. Or whatever:

Many archivists have varying perspectives on this issue. Archivists have a professional duty to curate many types of materials, some of which contain confidential information. More thought provoking is the potential outcome of this case and how it will effect what people will be willing to archive in the future, inevitably impacting what will be remembered for generations to come.

First of all, commonly-applied restrictions on access protect donors of archival material from acccidental discovery of any crime carrying a statute of limitation. Our most frequently-used period of restriction is 50 years. Legal documents, case files, attorneys’ work product and so forth are all commonly closed for 75 years. Attorney-client privilege holds that these should be closed in perpetuity but that’s something you have to take up with William Rehnquist. In short, Ed Moloney et cie. aren’t asking archives to do a better job protecting archival material from discovery by researchers. Rational actors should already be convinced by current practice that we’re going to keep mere snoops out of their stuff for a long time. Without archivists’ privilege, donors’ privacy is already secure.

But that’s not the issue. Moloney used the 1990s oral histories to WRITE A BOOK CALLED I KID YOU NOT A Secret History of the IRA. As I’ve tried to explain before, what the Belfast Project wants is access for researchers who are friends of the institution, and no access for “hostile” inquirers. Where publication fits into that scheme Moloney neither knows nor cares. So long as our researchers get to have it both ways — writing books from “privileged” material, and then asserting privilege once courts get inquisitive — in his mind and in Boston College’s, everything is fine.

Anyway, if you disagree, you have until tomorrow to send amicus curiae briefs to John Roberts.

And that’s all boring. What’s more “thought-provoking” is the notion that

Archivists have a professional duty to curate many types of materials, some of which contain confidential information.

which in a sense is wrong and in a sense is right. In the current sense of applying selectivity and taste to something, we don’t curate at all. Just ask Terry Cook. The last twenty years have been about appraising everyone in, because archivists now see appraisal and selection as truncating discourse and establishing one body’s power over another. Which, you know, I’m not unsympathetic to, though I think such an interpretation of our work relies overmuch on early Foucault and ignores infrapower, and just a little bit condescends to the oppressed, who if you read Rancière’s La Nuit des Prolétaires have been busily writing themselves into history with or without archives’ presuming to speak for them since at least the Bourbon Restoration.

The Latin root of curate means a lot of things apart from the obvious “care,” and “cure”; also “heal,” “arrange,” and “govern,” and more or less, “fetch.” These are good verbs to guide archivists. We can acknowledge that arrangement preserves access and that derangement obstructs it. We can see that curation governs collections, regulating who speaks and who can’t, so we’d better have a good idea of what we’re doing governing, and we’d better make sure it’s us and not dead donors and their unaccountable heirs doing the governing instead. Doesn’t fetching records for researchers heal the breach between “creators” and “consumers” of history? Thinking through these relationships, we can see archival practice as an unbroken stream from government, to arrangement, to care and feeding, to fetching, with really no room in there for abstract notions of privilege and property.