Prime Time looks at the controversy over the Boston College interviews
Thursday 12 July 2012
KEY – Show is in three parts: presentation, pre-recorded interview, followed by live discussion in studio.
Host Keelin Shanley ( *KS *)
Reporter Edel McAllister (*Edel*)
Historian Anthony McIntyre (*AM*)
Irish News Editor Noel Doran (*ND*)
Michael McConville, son of Jean McConville (*MM*)
IRA Commander Brendan Hughes (*BH*)
History Professor Eunan O’Halpin (*EO)*
Host Keelin Shanley ( *KS *)
Journalist Ed Moloney (*EM*)
Host Keelin Shanley (*KS*)
Baroness Nuala O’Loan (*NOL*), former NI Police Ombudsman (live in studio)
University of Liverpool, Politics Professor Jon Tonge(*JT*) (live in Belfast)
Keelin Shanley (KS): Three years after the Good Friday Agreement researchers working with Boston College began to build up Oral Histories from those involved in the violence in Northern Ireland.
When a so-called “donor” agreed to take part in these interviews they were assured that the tapes would be kept secret until after their death.
But last year the PSNI decided to look for access to the tapes. Subpoenas were issued. And a US court has now ruled in their favour.
In doing so they’ve opened a Pandora’s box raising questions about why the researchers gave such cast iron guarantees in the first place, about the rights of victims to secure justice and also about the safety of those who participated.
Edel McAllister has this report.
Edel McAllister (Edel): In 2001, researchers began collecting some of the most compelling stories of the Northern Ireland “Troubles” for the Boston College Oral History Project. Dozens of former Republican and Loyalist paramilitaries told their stories on the understanding they’d be kept secret until they died.
The documentary, Voices From the Grave, was based on the testimony of former IRA Commander Brendan Hughes which was released after he died in 2008.
(Clip from the documentary begins)
Anthony McIntyre (AM): Do you have a problem with committing all this to secret tape to be used only after you’ve died?
Brendan Hughes (BH): I don’t have a problem with that. If I did have a problem with that I wouldn’t be sitting here talking into your microphone. And I think alot of the stuff that I’m saying here I’m saying it in trust because I have a trust in you. And I have never, ever, ever admitted being a member in the IRA. Never. I’ve just done it here.
Edel: The person who recorded the stories on the Republican side was former IRA prisoner Anthony McIntyre, now an historian.
The aim of what became known as The Belfast Project in Boston College was to get a better idea of what motivated those involved in The Troubles.
AM: It was meant to achieve a much greater understanding of the dynamics behind conflict from the point of view of those who participated in conflict.
Why people who would behave normally in everyday life would feel themselves compelled to behave abnormally as a result of what they perceived to be an abnormal situation.
Edel: Former Republican prisoner Dolours Price was one of those who gave her testimony to the Boston College project. However, when she went public about one of the most high profile cases of The Troubles, that of Jean McConville, it sparked renewed interest in the controversy.
Noel Doran (ND): We ran the statement from Dolours Price which received considerable attention. And that happened to set in motion a series of events which led to the family of Jean McConville reading other coverage in other outlets and coming to believe that a statement from Dolours Price had been lodged with Boston College and making a complaint to the PSNI because they believed that that contained information about the abduction of their mother. And that, in turn, led to where we are today.
Edel: Jean McConville lived in Divis Flats in Belfast. The widow’s disappearance in 1972 devastated the lives of her ten children. For decades they knew nothing of what happened to her.
Michael McConville (MM): When the IRA came to our house and took our mother – they didn’t only take our mother away from us and kill her and bury her for all them years; well, had her buried.
Our whole family was dispersed all over homes in Northern Ireland some-where. My sisters and brothers….
I lost all my sisters and brothers with this too because we were brought up not even knowing each other.
Edel: Following a request from the McConville family the PSNI applied to the US courts to access the interviews.
The court eventually ruled in their favour saying a police enquiry held precedent over academic guarantees of confidentiality. An appeal last week by Project Director Ed Moloney and Researcher Anthony McIntyre failed.
ND: If the material is handed over to the PSNI, which hasn’t happened yet but looks as though it’s going to. And if that might that might form the basis for a prosecution well that would be a very dramatic development indeed. Not everyone in Belfast believes that’s likely to happen.
I suppose it’s conceivable that they open an evidential trail which may lead in a certain direction but given that forty years have passed over most of those circumstances and given that there’ve been so many changes and twists and turns along the way it’s a little hard to believe a prosecution will automatically follow.
However, in the very unusual circumstances that sometimes exists in this part of the world you couldn’t rule anything out.
Edel: Whatever happens to these tapes those involved in collecting the stories say the college shouldn’t have given guarantees of confidentiality that could not be honoured.
AM: I’m seriously concerned for the interviewees. They were given full guarantee of absolute confidentiality by Boston College via myself. And they are now in a position where they will be accused by people in the IRA or formerly in the IRA who have the power to harm them for having breached the IRA code.
Edel: Boston College say the original contract setting up the project stated that confidentiality was limited to the extent of US law.
(Visual begins of Boston College logo as letterhead quoting Boston College)
“…CONFIDENTIALITY LIMITED TO THE EXTENT OF US LAW.
WASN’T CLARIFIED IN DONOR AGREEMENTS
…SHARED REGRET AND SHARED RESPONSIBILITY…”
However, this wasn’t clarified in subsequent Donor Agreements for participants and the college that says there’s “shared regret” and “shared responsibility” for this.
Eunan O’Halpin (EO): Sometimes some of these issues aren’t moot but what is moot is the question of whether somebody who holds that material, who collected it for academic purposes can’t simply say: No, I mustn’t give this up because I made a promise.
And they may have made a promise and they may have believed that promise but the law of the land and the rights of victims…there are people out there who wish to know, even if there’s not going to be a prosecution, who would like to know much more about why their grandfather or their sister or whoever was killed. And families of victims have rights as do academic researchers and as do people who gave testimonies in confidence.
Edel: The aim of this project was to record accounts of events which would give future generations a better understanding of the peace process. But this case shows how difficult this can be while those events are still fresh in the minds of victims and their families.
KS: That report from Edel McAllister. A little earlier on this evening on Skype I spoke to Ed Moloney, the journalist and Director of The Belfast Project. I asked him first whether following the court’s ruling against him the tapes would be handed over.
Ed Moloney (EM): Well, there is no chance that the tapes are going to be handed over straightaway. At the very least there is a technicality called a mandate which means that the tapes cannot be moved for at least six weeks. And we also have other legal options to explore which will delay that even longer.
In the first instance, we are applying for a re-hearing of this entire case in front of the full bench of the Appeal Court in the Boston First Circuit area. And then after that we have other legal options here in the United States.
And once those are exhausted, and hopefully they won’t be – that we’ll win here – but if we have to explore further options those will be in the Belfast courts. And so the fight will begin anew in Belfast.
What that means is that this battle is going to last for a very long time yet and the prospect of these tapes being handed over, which I think some people thought was imminent, it’s not going to happen for a very, very long time and if we have our way, it never will happen.
KS: Ed, should these tapes be handed over, how real do you estimate the security threat to yourself or to Anthony McIntyre or other people involved in this project to be?
EM: It’s very worrying indeed. Because Anthony McIntyre, as a former member of that organisation with which of course he broke any sort of associations a long, long time ago, still has this unwritten rule of silence that no one is supposed to break who was a member of the IRA except at fear of the ultimate punishment. And the same applies to the people who took part in this project.
It’s no exaggeration to say that this move by the PSNI could really cause very serious injury and maybe even loss of life.
KS: Ed, clearly you have acted in good faith here.
But in retrospect, shouldn’t you have clarified this a little further? I mean, do you have a case to answer here for giving guarantees to the interviewees that you were in no position to keep?
EM: We made an arrangement with Boston College which was based upon a guarantee from them that none of these interviews would ever be in any sort of legal danger at all and would not and could not be handed over to the police in Northern Ireland. And that’s the basis upon which we proceeded.
I can understand people saying: Well, Ed Moloney and Anthony McIntyre have a reason to say this because they’re the ones with the high profile at the moment.
But you have to remember that it wasn’t just ourselves who were involved in this project.
The Ulster Volunteer Force took part in this project.
They started a couple of years after the IRA interviews started. And their representatives had face-to-face meetings with Boston College in Belfast which I didn’t attend because I was over here in America.
But they attended and at those meetings they asked for an assurance that there was no chance that these interviews would end up in the hands of the PSNI and they got that assurance from Boston College and they therefore participated on that basis.
Now, I don’t think the UVF is the type of organisation that would have such a cavalier attitude towards the interests of its members that it wouldn’t participate in a project like this without being absolutely sure of security.
KS: Ed, if I can clarify: as we understand it there was a contract between yourself and Boston College that carried the caveat that confidentiality was limited to the extent provided by the law. But that this caveat…
EM: No, that…
KS: You’re are saying that was not there…was it not?
EM: It doesn’t mention the word confidentiality. It talks about the extent of America law allows in relation to conditions of its deposit at Boston College.
We of course, following that we then we submitted various forms of words for the contract to Boston College.
And the reply that we got from Boston College from the Librarian was that he would work on the wording and that he would run it past the lawyers at Boston College and also his boss, Tom Hachey.
And the contract that we got back from Boston College specifically said that the right of release of these interviews rested solely and exclusively in the hands of the people who’d given the interviews until such time as their deaths after which it was then Boston College’s property to do with as they wish.
So from our point of view, having gone through that process, the Donor Agreement that we had got from Boston College appeared to us, seemed to us to say that it was fully in-line with what American law allows.
And on that basis (consistent with American law) and on that basis we went forward. Otherwise we would not have done so.
KS: Ed, a final question just on the wider issue I suppose.
We heard from Michael McConville, one of Jean McConville’s children today. And he said he doesn’t really care about the ins and outs of it, he just wants to know what happened to his mother.
Do you feel that he has a point…that he is entitled to know what’s in those tapes?
EM: You are speaking to someone who has, more that any other journalist in Ireland, done more to find out what happened to Jean McConville.
And clearly yes, they do have the right to know what happened to their mother.
But not from us; not from our tapes. There are other sources.
There was, for example, an interview with a Belfast newspaper which was reproduced in a Sunday paper in Belfast as well.
Where has that tape recording gone to?
Why has the PSNI not followed up on that tape recording? Why have they not pursued and harassed the journalists in Belfast who were responsible for that interview?
Why have they come instead three thousand miles across The Atlantic?
I understand and I sympathise entirely with Michael McConville and the McConville Family but I think they should be asking the PSNI some of those hard questions as well.
KS: Okay, Ed Moloney, thank you very much indeed.
LIVE DISCUSSION IN STUDIO
KS: And that was Ed Moloney speaking to me a little earlier on.
I’m joined now by Nuala O’Loan, former Northern Ireland Police Ombudsman and from Belfast by Professor Jon. Tonge
Nuala O’Loan, if I can come to you first. What is your basic view on this, should these tapes be handed over or should they not?
Nuala O’Loan (NOL): Well, I’m not an American lawyer. But under British law the situation would be that material which journalists gather, or which academics gather, can never be the subject of a complete assurance that it will not be disclosed to police who are investigating crime.
There are special procedures sometimes to get journalistic material, but at the end of the day, it is subject to the requirements of an investigation, if there is material which may assist an investigation.
It’s actually an offence in Northern Ireland if you have information which may assist an investigation not to hand that over to the police. So I’m very clear that legally there’s an obligation.
I’m equally clear that morally, there’s an obligation, because this is information about the murder of a mother of ten children who was abducted in front of her children. The IRA denied until 1999 that they had taken her, all sorts of messages were sent to her children, that her mother had run away with a soldier, they were told that she’d abandoned them. So I think that morally there’s an obligation to let the children know as much as there is.
But I think, as importantly, we’re building a new society in Northern Ireland. A society based on the rule of law. And international law says, we don’t have amnesties for gross violations of human rights. And abducting a mother and murdering her is a gross violation of human rights. So where material is gathered and where it is available it should be there for the investigator.
KS: I suppose, Nuala, somebody might say, you are building a new society in Northern Ireland, but isn’t part of that dealing with the truth of the past and there have to be facilities under which people could be free, to open up about the past, to find out what happened and why it happened?
NOL: I have no difficulty with that as an idea, and we had the Eames Bradley commission which looked at various ways in which that might be delivered by society but the reality is that if the state is going to have these processes, then the state must introduce the processes. You can’t have individual journalists thinking that they can give assurances to people and take themselves outside the law. I mean, that just is not possible. Nor can you have individual academics thinking they can give assurances and take themselves out of the law. Everybody who lives in the state is subject to the law.
KS: Ok, well, let me bring in now Professor Jon Tonge here. What’s your view on that? Should these have been released – should these be released?
Jon Tonge (JT): I’m not sure they should have been released, I am not sure they will be released. I think Ed Moloney has already outlined how he is going to fight it on. I think it’s dangerous. I think as academics and journalists we spend an awful lot of time gaining the confidence of people – who may be morally dubious, let’s make no bones about that – but those of who have researched on paramilitary actors in Northern Ireland have had to gain the confidence of those actors to interview them. And it’s no different for Ed Moloney and Anthony McIntyre. The guarantees that they gave were not worthless. They were given in very, very good faith.
The Police Service of Northern Ireland has a Historical Enquiries Team. I don’t blame the Police Service of Northern Ireland. If you’ve got an Historical Enquires Team, that team’s going to make historical enquires. But the fact is, where will this take us?
I think it will be damaging for the peace process more broadly, because what happens, if down the track, the PSNI begin to arrest senior republicans on the basis of these tapes? Where will that take us politically?
Now you can say well that is a morally reprehensible position and I understand the criticism that would come from that. But the fact is the whole peace process has been about moral compromises. We have had to put the past behind us. I don’t want to engage in clichés about leaving the past behind, but that is the reality that we are dealing with.
I think therein lies the danger. What happens when very senior republicans are brought before the PSNI? To repeat, I don’t blame the Police Service of Northern Ireland, they’ve acted even-handedly; only last week they said they would look at prosecuting, potentially, British soldiers involved in Bloody Sunday.
But I think the broader picture is where do we go from here. At some point we have to stop policing the past and move towards the future. And this is more indication that we are simply going to be policing the past in Northern Ireland.
KS: Fair enough. But I suppose the response to that is, well, what about the rights of the McConville family to know what happened to their mother?
JT: I’m conscious of that, and it’s not for academics like myself sitting in ivory towers to be dismissive of that. And I think there are huge sensitivities here. They have a right to seek truth and seek justice.
But actually, they may have achieved at least the truth on what happened from what McIntyre and Moloney were about. There’s perhaps more chance of that than the Police Service of Northern Ireland investigation.
Because, without pre-empting these inquiries, are there going to be prosecutions, at the end, based simply upon the oral testimonies of people who may have had a particular political view? Some of the people who were interviewed have been quite critical of the Republican leadership, for example.
I’m not convinced that a PSNI investigation will necessarily lead to the McConvilles getting the truth and justice that they do deserve.
NOL: But, Keelin, the question is not, you know, can they wait another 30 years or until someone dies before they find out what was said about their mother’s death. It is suggested that Dolours Price has said in this tape that she drove Mrs McConville to her death. That is my understanding of what is suggested. Now. If that’s information is out there, then the police have every right and every duty.
I don’t think here, in Dublin, if somebody was murdered 40 years ago and suddenly, you’ve got, say, new DNA evidence, or new, other, forensic evidence, you would say, well, we’re not going to do that because that’s 40 years ago and we have to leave the past in the past. You would say, no, if we have reasonable grounds to suspect someone of a murder, we will proceed with that.
Now. It is eminently possible that no one will ever be brought to trial for the murder of Jean McConville. I accept that, for a variety of reasons, which we probably haven’t got time to discuss. But. The key thing is, that if you have a state which is based on the law, and you have material which is available which may assist an investigation, there are special processes – you can’t just – I mean, the police couldn’t just walk in and get it, they have to make these applications, they have to go, in this case, to America.
But no journalist and no academic should ever think that they are in a position in which they can give total assurances. And, you know, I speak as the chair of a governing authority of a university. You can never give total assurances as an academic. Nor can you as a journalist.
KS: Ok. Nuala, can I ask you, I mean, from a different angle, listening to Ed Moloney there, he seems to be very certain that there are real risks to Anthony McIntyre and possibly to other people involved in this project, if these tapes are revealed. Is that something that needs to be taken into account before the contents of the tapes are disclosed?
NOL: [talks over KS] You risk assess every operation with which you have to deal. But you actually do what the law requires you to do, and you risk assess, and then you try and provide controls to deal with the risks.
Uhm… there are risks for all of us who live in this world, and who deal with matters which relate to the past activities of paramilitaries. But you can’t allow that to be the reason for covering up.
KS: Ok. Another point that’s put forward is there were plans to extend this project, to speak to members of the police force, the gardai. Possibly that will be scuppered now. I mean, is that not a loss?
NOL: Well, the question is. Are they going to be admitting, ah, crimes, that they’ve committed, are they going to be admitting breaches of the law, really serious breaches of the law, shoot to kill stuff or something like this, if they are then that material cannot be the subject of assurances.
There’s an awful lot of storytelling going on at the moment. And there are a lot of mechanisms for storytelling. And storytelling is good. And people giving their accounts of what they did and how they did it – there’s a lot of books coming out, constantly, about the Troubles. So I think there are many processes through which we may learn something of the Troubles.
One of the problems about, you know, secret information given secretly to journalists or to academics is that it can never be tested, it can never be challenged, it doesn’t go through court process… all that needs to happen, for it to satisfy the law.
KS: Ok. And very briefly, back to you, Professor Tonge. Do you think this has serious ramifications for future academic projects in the north if these tapes are released?
JT: It’s got huge ramifications.
I was about to embark on a project interviewing dissident republicans to find out more about what motivates them to join dissident groups. But people simply dry up. They simply won’t talk. So we’ll actually learn less, about why that’s taking place.
And I think if you think about the wider politics. Let’s suppose we do get to prosecutions and convictions. These people will be released anyway, within two years, under the terms of the Good Friday Agreement. So the question is, is it worth it?
I know, I’m very, very conscious when I say that as an academic, who has not suffered in the way that victims and their families have suffered. I think we have to be cognizant of that all the time. Nonetheless, I’m still not convinced that this is necessarily the right route to go.
KS: OK –
NOL: [interrupts] I don’t think anybody can say it is right for the McConville children not to know what happened to their mother.
KS: OK, well, listen, Nuala O’Loan, Jon Tonge, thank you both very much indeed.