Friday, 25 July 2014

Dark Cloud over Academic Freedom

The US supreme court's ruling upholding the subpoena issued on the basis of the Mutual Legal Assistance Treaty (MLAT) between the US and the UK makes researchers vulnerable to the same reprisals and targeting as informants and spies.  The work of researchers, the interviews they collect, the analysis they provide, can be invaluable in conflicts and this ruling changes them from a resource for peace to a tool for destruction.

What was the case that tipped the balance?  A murder in Belfast over 30 years ago allegedly committed by Gerry Adams.  (Prof. Robert White of Indiana University's sociology dept gives a nice timeline of The TroublesThe News Letter, The Pride of Northern Ireland gives a timeline of the events of the case; and Boston College gives a timeline of legal proceedings)  The reason a murder case in Northern Ireland touches reseach in the US is the MLATreaty... there were documents collected by researchers at Boston College that were subpoenaed as evidence, and similar the conundrum courts face with journalists when they know details of a crime, the court in Northern Ireland felt there was important evidence in the interviews that could be shared via this treaty.  The Belfast Project documented many hours of interviews with participants on both sides of the conflict on the strict written understanding of confidentiality until their death unless otherwise granted.  This kind of precaution was and still is felt to be necessary to protect interviewee's lives and those of their families.  In fact, this case is about a kidnapping and murder of a woman by the IRA.

Now there is ample meat on this bone of contention for legal and social science scholars.  First, should we consider the researchers at Boston College researchers or were they journalists or even IRA affliated persons (which gave them trust to interview those communities) with no academic credentials?  Does their categorization even matter when the real issue is the breach of confidentiality of their sources?  The breach of trust, a foundation in collecting interview-based research.

Another issue, not emphasized during any of the court hearings, was that after 1972, anyone arrested and imprisoned in Northern Ireland was considered a participant in the conflict rather than a criminal.  There was a conceptual and legal change in standing for crimes committed thereafter as being part of a larger battle.  As I understand it (from speaking to experts in this area), if this murder charge had been brought in 1972 and Adams had been arrested then, it would not have been a murder charge but rather a political one (called Special Catergory Status).   And this is a key distinction both during and post-conflict for rebuilding because, to take a different example like Egypt after the revolution in the streets in 2011, would it be helpful to go back and prosecute every person they could find for breaking a window for vandalism and every person for assault and battery for protest related violence?  (Certainly some post-conflict resolutions chose to pursue justice for key leaders such as through the ICC, but this is not always the case.)  At some point, most post-conflict societies decide to draw a line of forgiveness (such as truth and reconcilation) in order to move forward.  And in no way is the forgive/move on method easy, it is simply that there is something unusual about a murder case in these circumstances.

The researchers ceded their interview data to the Boston College Library where anonymized data could by used by other researchers.  The data was held by a third party not unlike how we use cloud data storage or email or other digital storage resources to facilitate data collection and security.  Ultimately, it became the university's decision to comply with the subpoena not the researchers themselves because they had given up the data.  How we store our data, who controlls it, who has access to it is ever more important with this implications of this ruling.

As argued in the Massachusetts ACLU's amicus brief, described here by their executive director Carol Rose, “It is alarming that the trial court opinion suggests that the Constitution surrenders US citizens to foreign powers with fewer safeguards than are afforded to citizens subpoenaed by domestic law enforcement agencies.  If the government has its way, it would straightjacket judicial review of investigations and prosecutions by any foreign country party to this treaty, including Russia and China.”

The examples given in the amicus brief illustrate how information sharing (or not sharing) was a factor in recent legal actions in countries subject to the MLAT:
The prosecution of Nobel Prize winner Liu Xiaobo by the Chinese government for, “inciting subversion of state power.”
The recent arrest and prosecutions of non-govermental organizations, including civil rights groups, by the Egyptian government.
The sex discrimination case recently dismissed by a Russian judge who stated that, “If we had no sexual harassment we would have no children.”

This begs the questions, why did the US Supreme Court grant this subpoena request now?  The support and 'special relationship' between the US and the UK has developed a unique flavor as a result of the war on terror.  A kind of complicity.  Despite pressure from senators and then Sec. of State Clinton, as being a politically destabilizing move, this ruling opens the door wider for government to pressure researchers for data.  For me and my colleagues, I can only imagine the consequences.  We are the ones hiking into the hills to ask former child soldiers about their experience, to ask suspected taliban about their motivations, to ask corrupt drug enforcement police about their allegiances, what could possibly go wrong for us or for the people we interview if we are are no longer seen as purely academic researchers?

And what of the critics who say that social science provides no concrete results towards solving war and conflict?  Just because the effects of research informing policy-making are too complex to throw up on a powerpoint slide does not mean they do not exist.  The knowledge gained by investigating the nature of conflict, its intricacies and ramifications, its participants and their motivations, this certainly leads to better planning for preventing conflict and better policy-making when embroiled the unstoppable ones.  What is the alternative?  Not understanding the nature of the thing and making guesses about policies for troops and sanctions and alliances in the dark?

Finally, the amicus brief written by group of concerned social scientists does a wonderful job of outlining several key reasons why this ruling was aggregous and should be added as a point of review on the ethics panels for all researchers in order to understand how their data will be protected at their institutions.  In fact, if you've never read a legal brief (or tried it and hated it), this is the one for you.  It tells a story, makes a compelling argument, and stays well clear of jargon and things like, 'pursuant to code 3.1.c.-3. blah blah.'  Enjoy.