Living History: The Boston College Case and the SPADs Bill

Living History: The Boston College Case and the SPADs Bill
By Colin Murray
Human Rights in Ireland
Jun 5, 2013

“The past invades the present, The present lives in the past, The future will never come.” The closing words of Robert Greacen’s poem, Procession, lamented the atrophy of unionism in the aftermath of partition. In the last week, the troubled passage of the Special Advisers Bill through the Northern Ireland Assembly and the UK Government’s fight through the US Courts for records of an oral history project held by Boston College (pictured left) indicate just how far Northern Ireland hasn’t come in tackling the Troubles’ legacy.

Both events relate to the victims of the Troubles. In the case of the SPAD Bill, completed its tortured journey through Stormont on Monday, much to the delight of its sponsor, the TUV’s Jim Allister. The legislation prevents anyone with serious criminal convictions from serving as special advisers at Stormont. In this context, serious criminal convictions inevitably relate to activities during the Troubles. Sinn Féin is the party directly affected by the measure, with several former Provisional IRA prisoners having held adviser positions to its leading representatives. It has doggedly defended the line that this legislation does not recognise the victimhood of former prisoners, and thereby creates a hierarchy of victims of the Troubles.

Sinn Fein’s legal criticisms of the Bill are twofold, and it seems inevitable that they will be tested in court. One, they assert that this legislation discriminates against its members on the basis of their political beliefs. Two, they believe that as the legislation applies no matter when a serious crime was committed, the legislation amounts to a retrospective punishment for the advisers’ crimes, contrary to Article 7 ECHR. The SDLP abstained from voting on the legislation because of these flaws.

The first argument has been played out in the courts before, when the Simon Community refused to employ former PIRA prisoners John McConkey and Jervis Marks. The House of Lords ultimately rejected their claim, despite acknowledging that it seemed to chime “with the often-expressed desire for a new start for Northern Ireland after the Good Friday Agreement” (at [29]). As Lord Rodger concluded (at [31]):

[There is nothing surprising, far less absurd or outrageous, in holding that [anti-discrimination legislation] allows such people to say: “No, I’m sorry, because of all I have suffered, I won’t employ you; I won’t serve you.” To hold otherwise would be to force these vulnerable individuals to associate with people who approved of the use of the very kind of violence that has blighted their lives.

With the courts having dismissed these claims once, it is unlikely that they will gain any traction with regard to arrangements surrounding government. As for the Human Rights argument, the focus on any litigation will be on whether this bar on becoming a Special Advisor amounts to a penalty, for the ECHR prevents the imposition of “a heavier penalty … than the one that was applicable at the time the criminal offence was committed”. The counter-argument will be that the measure does not constitute a penalty at all, but a protection for the democratic process. With regard to bars on prisoners voting, the European Court of Human Rights has explicitly recognised the leeway states have to protect their electoral systems where individuals have been involved in activities (such as political violence or electoral fraud) which undermines the democratic process (see Frodl v Austria, [28]). Any potential case would be the most important constitutional issue for Northern Ireland’s legal system for decades, for the courts have the power to strike down any Assembly legislation which fails to meet human rights standards.

Despite the weaknesses of the case, the legislation seems to use victims to score political points rather than serve their interests. That former paramilitary prisoners would have to have a role in Northern Ireland politics following the peace process was one of the most contentious issues in the Good Friday Agreement negotiations. Politicians can be elected to the Northern Ireland Assembly regardless of their past convictions (indeed, the MLAs who backed this legislation sit in the Northern Ireland Executive with former PIRA prisoners likeGerry Kelly). The DUP and UUP recognise that they cannot challenge Kelly’s position (or say, prior to his death, PUP MLA David Ervine, a contributor to the Belfast Project) without destroying the peace process, regardless of what might be said about his position by the victims of his bomb attacks. In that respect, this legislation is creating a hierarchy of victims, those whom others can use to score political points, and those whom they cannot.

If the SPADs Bill displays the failure of Northern Ireland’s politicians to move on from the Troubles, the Boston College case show the hubris of historians in thinking that they had. Led by journalist Ed Maloney, from 2001 the team at the Belfast Project went about recording interviews with former members of the republican and loyalist paramilitaries to provide an archive for historians to use after the participants in the interviews had died. As some of those involved died, Maloney began publishing and broadcasting material from the archive (including the award-winning documentary Voices from the Grave). This, in turn, drew the attention of the PSNI Historical Enquiries Team, particularly as some of the released material related to the murder of Jean McConville. Under the US-UK Treaty on Mutual Legal Assistance on Criminal Matters the UK requested that the US Government subpoena materials relevant to this investigation. Boston College fought against efforts at disclosure, on the basis that interviewees had been promised confidentiality.

On May 31st, the US First Circuit Court of Appeals delivered its latest judgment in the saga, a partial victory for Boston College. The appeal recognised that the College should only have to release material directly relevant to the McConville investigation, in light of the “heightened sensitivity” surrounding the free speech concerns inherent in academic research of this type. Rather than having to release fully 85 interviews, the College must now release only 11.

Maloney and his fellow researcher Anthony McIntyre celebrated the decision “as at least a partial indictment of the whole process” by which the US Government sought the release of information. Both the US Government, and the PSNI Team requesting the information, however, are simply fulfilling their roles under treaty and domestic law. Whether those roles overstep constitutional boundaries in the US may yet be a matter for the US Supreme Court, with further appeals a possibility. What the case does indict is the record of Northern Ireland’s politicians in dealing with the legacy of the Troubles, in leaving the Historical Enquiries Team to soldier on as the official organ for the investigation of serious crimes committed during the conflict.

The SPADs Bill and the Boston College case have attracted considerable hyperbole. Sinn Féin has accused the SDLP of abandoning the Good Friday Agreement in refusing to reject the legislation, whilst the Belfast Newsletter posed the doom-laden question of whether the “secret” Belfast Project archive could “end our peace” by triggering a raft of prosecutions. Together they exemplify the consequences of the failure to deal with the Troubles in any holistic way, and simply add to the malaise of recriminations afflicting politics in Northern Ireland.

Much ink has been spilt outlining what an effective Truth and Reconciliation (TRC) process might look like for Northern Ireland (not least on the pages of humanrights.ie). The events of the last week, however, show us what the absence of a TRC process will look like for years to come. Persistent court cases. Partial legislative fixes. Inquiries and rumours of inquiries. The resolution of each new crisis portrayed as a victory by one side or the other, with little overall regard for the interests of victims or advancement of the political process, just the hope that simmering discontent does not, once again, boil over. Will the future ever come?

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Colin Murray is a senior lecturer at Newcastle Law School where he specialises in national security law, legal history and public law. Alongside Roger Masterman (Durham University) he is the author of “Exploring Constitutional and Administrative Law”, a textbook on UK public law.

Government’s Motion to Extend the Time To File a Petition for Rehearing

View this document on Scribd

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 12-1236
IN RE: REQUEST FROM THE UNITED KINGDOM PURSUANT TO
THE TREATY BETWEEN THE GOVERNMENT OF THE UNITED
STATES OF AMERICA AND THE GOVERNMENT OF THE UNITED
KINGDOM ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS
IN THE MATTER OF DOLOURS PRICE

UNITED STATES OF AMERICA,
Petitioner, Appellee
v.
TRUSTEES OF BOSTON COLLEGE,
Movant, Appellant.

GOVERNMENT’S MOTION TO EXTEND THE TIME
– TO JULY 30, 2013 –
WITHIN WHICH TO FILE A PETITION FOR REHEARING
AND/OR REHEARING EN BANC

The United States of America respectfully moves this Court to extend the time in which it must file any petition for rehearing and/or petition for rehearing en banc to July 30, 2013. In support of this request, the undersigned Assistant U.S. Attorney states the following:

1. This was the movant’s appeal from the district court’s orders directing the production of documents pursuant to government subpoenas.

2. On May 31, 2013, the Court affirmed the orders in part and reversed them in part.

3. Pursuant to FRAP 35 and 40, any petition for panel rehearing or petition for rehearing en banc is required to be filed within 14 days.

3. The government must obtain approval from the Solicitor General to seek or not to seek en banc rehearing. Additional time is needed for this decision to be made, and for the government to prepare any petition.

4. Accordingly, the government requests that this Court extend the time within which it must file any petition for panel rehearing and/or petition for rehearing en banc to July 30, 2013.

For these reasons, the government respectfully requests that the Court allow this motion.

Respectfully submitted,
CARMEN M. ORTIZ
United States Attorney
By: /s/ Randall E. Kromm
RANDALL E. KROMM
Assistant U.S. Attorney

PSNI preparing to seek possession of some Boston College tapes

PSNI preparing to seek possession of some Boston College tapes
US court rules that only tapes relating to murder of Jean McConville can be released
Simon Carswell, Gerry Moriarty
Irish Times
Mon, Jun 3, 2013

A US court ruling has paved the way for the PSNI to begin formal moves to gain copies of the Boston College tapes relating to the 1972 abduction and murder of Jean McConville.

On Friday, the US appeals court ruled that only interviews dealing directly with the murder of the Belfast mother of 10 could be turned over by Boston College to police in Northern Ireland.

Now the PSNI is preparing to retrieve the relevant tapes so it can press ahead with its investigation into the murder of Ms McConville, one of the “disappeared” whose body was found on a Co Louth beach in 2003. “Detectives are making plans to take possession of the material and proceed with their inquiries,” a police spokesman said yesterday evening.

The US court ruling means that recordings of 11 confidential interviews with seven individuals, including former IRA members, will be surrendered to the US authorities and eventually handed over to the PSNI.

This reduces the amount of information the US courts had previously ordered the college to surrender from its Belfast Project archive of interviews with IRA figures.

A US district court in Boston had ordered the college to hand over 85 wide-ranging interviews with eight people carried out to create an archive at the university to assist historians and researchers studying the Troubles.

Boston College appealed the ruling that it turn over these interviews for their eventual transfer to the UK authorities as requested in August 2011 under the McConville investigation.

Former IRA members gave interviews to journalist and author Ed Moloney and historian Anthony McIntyre, himself a former IRA member, on the basis that the recordings would be kept private until the interviewees had died.

In a joint statement, Mr Moloney and Dr McIntyre said the judgment meant that “a mere 13 per cent” of what the district court had initially ordered would be surrendered and that this was “at least a partial indictment of the whole process”.

In April the US Supreme Court declined to hear an appeal from the two men to block the release of interviews with the late Dolours Price, who was jailed for the IRA bombing of the Old Bailey in 1973.

Ms Price had separately claimed Mr Adams was her Belfast commanding IRA officer at the time of the Old Bailey bombings. She said he was also her OC when she was part of an IRA team that drove Ms McConville across the Border and ultimately to her death. Mr Adams has repeatedly denied these claims.

The US appeals court had previously found that Mr Moloney and Dr McIntyre had no right to interfere with the police request for information under a treaty between the US and the UK that requires mutual assistance in criminal investigations.

The appeals court said in its judgment on Friday the college had handed over interviews with Ms Price, who died in January, and another Provisional IRA member, Brendan Hughes, who died in 2008.

News of Interest: Bias’ claim over killings probe

BCSN  Comment: Who Guards the Guards?

4 former RUC Special Branch members and a former RUC intelligence officer chosen by PSNI Chief Constable to prepare sensitive Shoot-to-Kill Documents; review team members served with witnesses, with one team member having served with up to 52 potential inquest witnesses. Ministry of Defence resists family of victims’ requests for military advisers who sat in on police interviews to be called as witnesses. 

Previously, the Public Records Office of Northern Ireland, acting on the advice of the PSNI’s Historical Enquries Team, refused to allow access to public records asked for in a Freedom of Information request made on behalf of families of men shot by loyalists.

This is the same PSNI who are abusing the MLAT procedure to demand access to the Boston College Oral History archives. Why is the US Department of Justice and Obama Administration facilitating this?

Further Reading

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‘Bias’ claim over killings probe
Belfast Telegraph
31 MAY 2013

An inquiry is looking into six alleged shoot-to-kill incidents

A former police officer selected to trawl through top-secret information on some of Northern Ireland’s most controversial killings served with 52 potential inquest witnesses, it has been revealed in court.

He is part of a team made up of four former RUC Special Branch members and an ex-RUC intelligence officer chosen by the chief constable to prepare sensitive documents relating to six alleged shoot-to-kill incidents involving the security forces more than 30 years ago. He has been charged with reading and redacting information from classified material due to be disclosed to the families of those shot dead.

A preliminary hearing at Belfast’s Old Town Hall also heard that two other members of the research team served with 10 potential witnesses; another worked alongside 21 potential witnesses; and a fifth knew one potential witness.

Barrister Karen Quinlivan QC, who is representing relatives of those killed, described it as “breathtaking” that police were investigating police. “They served alongside each other for years and presumably had confidence in their abilities. This is not only institutional bias but actual bias,” she said.

Ms Quinlivan said ongoing problems with disclosure meant the process had been “held up” and “dragged out” beyond expectation. She also claimed the families had very little confidence in the disclosure process. “We remain extremely concerned about the personalities involved in this case,” added the lawyer.

Barrister Fiona Doherty, who is also acting for some of the next of kin, raised concerns around delays with disclosure. “This is a serious issue. It is an issue that is going to have to be dealt with sooner rather than later,” she said.

The case involves six people shot dead by the security forces during the 1980s amid claims there was a deliberate intention to kill them. IRA men Sean Burns, Eugene Toman and Gervaise McKerr were killed near Lurgan, Co Armagh, in November 1982.

Catholic teenager Michael Tighe was shot dead by police at a hay shed near Craigavon, Co Armagh, in November 1982 and suspected INLA men Roddy Carroll and Seamus Grew were fatally wounded near Armagh in December of the same year.

Tony McGleenan QC, barrister for the PSNI, described the scale of the disclosure as vast. He said up to 82 boxes of material containing tens of thousands of pages had to be considered by counsel, the chief constable and the minister for justice before being handed to the coroner for consideration of relevance. The next preliminary hearing is due to take place in July.

An investigation into whether police set out to kill was carried out in the years after the incidents by former Greater Manchester Police deputy chief constable John Stalker and Sir Colin Sampson of West Yorkshire Police. The Stalker and Sampson reports were long classified top secret but the Police Service of Northern Ireland (PSNI) finally handed over edited versions to the coroner in 2010 after a lengthy legal battle. The reports were then passed to lawyers for the families.

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Advisers plea over 1984 shootings
Belfast Telegraph
31 MAY 2013

Attorney General John Larkin ordered a new inquest into the deaths of two suspected IRA men almost 30 years ago

Military advisers who sat in on police interviews with SAS soldiers involved in the ambush and killing of two suspected IRA men almost 30 years ago could be called to give evidence at their inquests.

Daniel Doherty, 23, and William Fleming, 19, were shot dead in the grounds of the Gransha Hospital in Londonderry in December 1984. It was alleged that the pair, who were both from the city, were planning to carry out an attack on an off-duty Ulster Defence Regiment soldier when the SAS opened fire.

An original inquest was held two years after the shootings but in 2010 Northern Ireland’s Attorney General John Larkin ordered another hearing after finding that police documents had been withheld from the coroner at the time.

At a preliminary hearing in Belfast’s Old Town Hall, lawyers representing the families of the two men requested the identification of Army legal advisers or senior soldiers who routinely accompanied the rank and file during police interviews.

“The soldier or soldiers who attended interviews should be identified – given a cipher – and should make a statement on their role,” said barrister Karen Quinlivan QC.

She said there were concerns about an alleged military policy which directed soldiers to only provide the minimum amount of information required for the police investigation. Ms Quinlivan said it was also important to know whether the advisers involved in this case had attended police interviews relating to other lethal force deaths.

“There are broad issues. Soldiers were engaged in lethal force and the state – Army legal services and the RUC (Royal Ulster Constabulary) – operated to ensure that they were not held accountable,” she said.

There were also requests for military intelligence files on the IRA suspects to be handed over to their families’ legal teams. “We know that there was intelligence in advance, it is obviously relevant to the circumstances. The question is whether it has been used as a shoot-to-kill policy,” said Ms Quinlivan.

Peter Coll, acting for the Ministry of Defence, claimed the families’ lawyers were embarking on a “fishing expedition” and questioned the relevance of advisers’ roles in other lethal force incidents. “This is putting the cart before the horse. Particularly, we do not know if military advisers were involved,” he said.

Fiona Doherty, barrister for the Coroners Service, said anything which could have affected the quality of evidence gathered at the time of the killings would be relevant to the inquest.

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Further Reading

• Security Services Making a Killing from the Troubles
• Getting Gerry Adams: Norman Baxter’s Long Crusade
• Warning Over Boston Tapes; Testimonies Could Be Used to Destabilise Peace Process: McGuinness

 

Eric Holder, Boston College & the Irish Peace Process

Eric Holder, Boston College & the Irish Peace Process
Carrie Twomey
The Pensive Quill
29 May 2013

Enda Kenny and Boston College
Holder’s Remorse
Policing the Past

Enda Kenny and Boston College

Kevin Cullen writing in the Boston Globe earlier this month examined the issue of Boston College’s invitation to Taoiseach Enda Kenny to speak at their commencement. Because Boston College is a Catholic University, some people were upset at the invitation given the recent abortion debate going on in Ireland and Enda Kenny’s refusal to automatically bow down to demands of clerics. Previously, Kenny had given a landmark speech about the Church and its shameful handling of child abuse; it was much needed, and reflective of the changes in Ireland. For whatever else one may think about Kenny’s leadership, he has been very strong in publicly distancing the State from the Church — much to the Church’s chagrin.

Leaving the issues of abortion, Ireland and the Catholic Church aside, our personal circumstances means I tend to see everything through the lens of the Belfast Project subpoena. So given that, I couldn’t help but wonder, while Boston College was inviting the Taoiseach to come speak at their commencement and making all the necessary arrangements, what were they doing with their obvious political contacts, networks, and strength in regards to the subpoena case?

I remain hopeful that behind the scenes they have been using their contacts effectively to protect the oral history records — and that the fact that they can and are hosting the leader of Ireland shows they are protecting their research against the British desire to use them politically — but, given my experience, it is admittedly hard not to see it as anything other than a cynical attempt at damage control and protecting their reputation in Ireland over how badly they have behaved in our case.

From the start of the issuance of the subpoenas, Boston College was more interested in scapegoating my husband and those involved in the project, and via their spokesperson Jack Dunn spent more time protecting the institution than they did their research and researchers. I would have much rather seen them publicly and loudly lobbying the likes Enda Kenny for protection of the archives and feel had they taken such a course perhaps things would be turning out differently.

I hope my cynicism is proved wrong — those who participated in the Boston College project are depending on the integrity of Boston College to protect them. I would like to think that the commencement invitation is the result of hard lobbying done behind the scenes over the last two years and maybe, just maybe, the political intervention that was always going to be the key to dealing with the subpoenas will manifest. Somehow, though…

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Holder’s Remorse 

Twitter drew my attention to this article yesterday, about Attorney General Eric Holder’s “remorse” for the Department of Justice’s going after the press as criminals, in relation to the recent Associated Press and James Rosen cases. I will reserve my full thoughts about that, suffice to say I imagine the remorse has more to do with the exposure of the extent of the DoJ’s activities than the actions themselves.

Having spent the last two years dealing with a case pursued by Holder’s DoJ and being involved in a suit against Holder because of it, it is readily apparent the recent AP and Rosen cases belong to a larger pattern of abuse of freedom of the press by the DoJ, of which the Boston College subpoena case is very much included.

I hope that the BC case is not overlooked, because it raises the same important issues and questions that the AP, Rosen, and Aaron Swartz cases do. Like them, the subpoenaing of the Belfast Project archives is a 1st Amendment issue, and a 4th Amendment issue. The added dimension is the MLAT request: Holder’s DoJ is not only willing to trample on the 1st and 4th Amendments for internal political reasons, but is also doing so at the behest of foreign governments who are pursuing their own political agendas contrary to established American foreign policy.

I urge reporters following the AP, Rosen, and Swartz cases, as well as concerned citizens, please, don’t let the Boston College subpoena case get lost — ask the Obama administration what they are going to do about it, and will it be included in the ‘review’ taking place by Holder; ask the administration and the DoJ how that MLAT subpoena action ‘strikes a balance between law enforcement and freedom of the press’,  particularly when the law enforcement is a political investigation involving a foreign government.

It is not too late to stop the handover of confidential archival material. Help by raising voices to ask the US Government the questions the DoJ should have asked when the MLAT request landed on its desk. Ask the Irish Government why it is happy to have the British Government ride roughshod over its jurisdiction in pursuing cases that the Good Friday Agreement had placed in the past. And ask the British Government exactly what it is looking to achieve given the constrained circumstances the GFA places on them — ask them if they lied to the US Government in making the MLAT request, or what, if any, significant information they failed to impart.

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Policing the Past

Three other news stories caught my eye recently, in relation to the Boston College case and the status of the peace process with regard to the past. I have said to many people over the last couple years while lobbying on the case that without any agreed approach in place to dealing with the past, we will never have “conflict resolution” — what we have will only ever be a “conflict cessation”, and with that comes the implication that it will resume again at some point in the future. The logical and natural end point of a “peace process” should be to lay the past to rest. Whether that is something that can ever be possible is up for debate, but it will never be achieved in the manner the current peace-processors are going about things.

The Boston College case is an example of how the past, and the drift in the peace process, has the potential to unravel the future. Last week, the man who will most likely be making the decisions on whether to use the Belfast Project archives to pursue prosecutions or not, Director of Public Prosecutions Barra McGrory, expressed his reservations about the benefits of prosecuting the past, indicating he understands all too well the problems that the subpoena case brings to the political landscape.

Meanwhile, the PSNI themselves cannot be accused of not being sensitive to that kind of problem — at least going by the BBC report by Vincent Kearney which exposed the Public Records Office of Northern Ireland’s withholding of public records. The PRONI claimed they did so at the behest of the PSNI’s Historical Enquires Team; an HET spokesman issued a denial of this to the BBC.

In a letter explaining the decision, PRONI said the decision had been taken after reviewing the files, and information it received as part of a consultation with the Historical Enquiries Team.The letter said it would “not be in the public interest to release any information at this stage” and that providing access to the documents “would be likely to prejudice the detection of crime, the apprehension or prosecution of offenders, and the administration of justice”. PRONI argued that it would not be in the public interest to release information held in witness statements contained in the file “that may still be of assistance to the PSNI (Police Service of Northern Ireland) or HET”.

All of this was a result of a solicitor making a Freedom of Information request on behalf of families of men killed by loyalists who are seeking a new inquest into their deaths. While the HET/PSNI are going to America to attempt to access privately held confidential archives, they are sitting in Belfast blocking access to public records. Talk about having it both ways!

Both ways is apparently how the British State wants it.  Padraig O Muirigh, representing the families involved, told the BBC:

“I don’t believe it’s any accident that we’ve had this intervention. We have an attorney general at the minute who is prepared to direct fresh inquests where he sees it advisable and I believe this is a very deliberate policy to stymie and to obstruct families who are seeking to persuade the attorney general to go down that road.”

Some historical prosecutions and inquests are good, while others are very, very bad. I will leave it to the reader to determine which is which.

Almost as if to help assist in making that determination, or at least underline which prosecutions the British State believes are good ones, hot on the heels of Barra McGrory’s handwringing about the inability of the peace-processing politicians to deal with the past, John Downey was arrested in London, accused of being involved in the 1982 Hyde Park IRA bombing. Gerry Adams, in calling for Downey’s release, describes him as “a valued member of Sinn Féin and a long-time advocate of the Peace Process”.

Downey’s arrest and subsequent trial must be seen as a shot across the bows of Sinn Fein, and Adams would be a fool, given the Boston College subpoenas, not to feel something akin to “There but for the Grace of God go I,” while issuing his statements. God being, of course, whichever ‘nameless, faceless securocrat’ is currently calling these shots.

Who exactly is it that is calling the shots now? In the case of the Boston College subpoenas, while the investigation may have been initiated and pursued by the PSNI’s HET and Serious Crime units, it is assumed that the MLAT request would have had to go through the Home Office. This could explain, unless for some reason Owen Paterson was being economical with the truth, why the NIO was reportedly caught unawares by the whole thing — they were not consulted beforehand as it never went through their channel. All of this is speculation, of course — the subpoena is sealed, and we don’t have the answers to who decided what. But the questions remain.

As they do in the case of John Downey. Who has oversight for the Hyde Park investigation? Is it an HET or PSNI Serious Crime case? Or is it strictly a London Metropolitan Police operation? If so, how many other historical cases involving the IRA are currently on the go, or in the pipeline? Who authorized them, and why? If this does not fall under the PSNI umbrella, who does have oversight?

At any rate, it looks like Barra McGrory won’t have to make any decisions on whether a prosecution of John Downey is in the public interest or not, as any trial that does go forward won’t be taking place in Belfast.

Perhaps the peace processors have found an agreed-upon way to deal with the past: to use it to further their agendas in the present, and damn the consequences to the little people they purport to represent. Like the rest of the peace process to date, will it be the processors alone who reap the most benefits of such dealings?  That I will leave for the reader to decide.

News of Interest: DPP issues ‘Call to tackle historic cases issue’

Call to tackle historic cases issue
Barra McGrory QC urged politicians to decide whether to try and prosecute historic cases or to forego investigations to ‘embed’ the peace process
Belfast Telegraph
21 MAY 2013

Political uncertainty over dealing with Northern Ireland’s troubled past needs to be addressed, the Director of Public Prosecutions (DPP) has said.

With more than 3,500 deaths and countless more injured during the conflict, politicians should decide whether to attempt to prosecute historic cases or to forego investigations to “embed” the peace process, Barra McGrory QC added.

He highlighted difficulties including impaired memories, dead witnesses or perpetrators and limitations using modern evidence-gathering methods like DNA and said his Public Prosecution Service (PPS) would need to be properly resourced for any large scale investigation.

But he said he would continue to prosecute where the evidence existed to deliver true justice.

“Perhaps the time has come when our society should reflect on how we are going to address these issues because we appear to be drifting along at the moment in a sort of vacuum of some uncertainty,” he told a transitional justice conference in Belfast.

“As the Director of Public Prosecutions I don’t think it is my role to deny any victim of an injustice the delivery of true justice to that person or his or her family. As the DPP that is what I must strive to do in the current circumstances.”

Sinn Fein has called for a truth and reconciliation commission to consider the fall out from Northern Ireland’s 30 years of violence and wants the state to participate after its forces were responsible for some deaths. Senior MLA Mitchel McLaughlin recently proposed separating truth from reconciliation until that is done. Democratic Unionists believe victims should not be denied the right to justice.

Mr McGrory said if the prosecution service was going to be expected to deliver prosecutions then it needs to be properly resourced.

“I think society has got to make a choice. Either it decides now to go down the route, the very difficult route, of determining that we are going to forego the investigation and prosecution of the past in favour of embedding the political institutions or the peace process, or between that and deciding whether or not the peace process is best served by continuing to prosecute the past,” he added.

“If it is going to be the latter then I think there needs to be a very clear investigative structure established with very clear lines of definition and with significant resources and if that is going to be done it needs to have terms of reference which will cover all criminality from all sides. The prosecutorial aspect of this will have to be significantly resourced as well. That has not yet happened.”

PSNI confirms fresh move to obtain Boston College transcripts

PSNI confirms fresh move to obtain Boston College transcripts
Police confident interview notes can now be handed over to murder investigation
Dan Keenan
Irish Times
Thu, May 16, 2013

The Police Service of Northern Ireland has confirmed it is seeking details of the testimony given to an oral history project at Boston College by the late Dolours Price.

The republican, who died in January, was one of those who gave evidence to the project on condition it would not be released until after her death.

The PSNI had sought disclosure of the transcripts of her interview as part of its investigation into the disappearance and murder of Jane McConville, a mother of 10, in 1972.

The Belfast Project was designed to provide researchers and academics with insights into the Troubles.

The disclosure issue went as far as the US supreme court which decided last month not to hear an appeal against making the transcripts available to the PSNI, thus removing a significant legal impediment.

The PSNI told The Irish Times: “We are making plans to take possession of the material and proceed with our inquiries.”

It is understood that while the process will take some time, the PSNI is confident it will obtain the transcripts.

Belfast Project: Boston Prosecuting Irish Politics

Belfast Project: Boston Prosecuting Irish Politics
Chris Bray
Letters Blogatory
6 May 2013

The Supreme Court has turned aside a legal appeal from Belfast Project researchers Ed Moloney and Anthony McIntyre, and IRA interviews will likely soon be transferred from the archives at Boston College to the Police Service of Northern Ireland. (A more limited appeal from BC, still pending, relates to only some of the subpoenaed interviews.)

The Irish press has been busy covering this development, and the stories tell you everything you need to know about the federal subpoenas of confidential academic research materials. They all center on Gerry Adams, the Sinn Fein politician alleged to have ordered Jean McConville’s murder in 1972.

“Like his hero, Fidel Castro, Adams plans to go on and on,” reads an April 27 editorial in the Herald, a Dublin newspaper. “Until now many of us have given him the benefit of the doubt on both counts.”

But not anymore, the newspaper concludes:

“Meanwhile, Sinn Fein goes from strength to strength. As long as a growing number of voters conveniently forget about the hell that Jean McConville suffered, few among the Sinn Fein ranks will challenge their leader for life.”

This is the point of the effort to breach the Boston College archives, openly discussed in the Irish press as the object of the investigation: to stop Sinn Fein from going “from strength to strength,” preventing voters from conveniently forgetting the actions of the IRA,and convincing party members to challenge their leader.

This is not law enforcement.

Similarly, many of the Irish news stories about the pending release of the tapes say that the move could lead to the “downfall” of Gerry Adams. Here are some words and phrases you will not find in any of those stories:

• “prosecution”
• “murder charges”
• “arrest”

Because none of that is the point. The Herald does refer to the possibility that Adams will face “a case,” but everyone involved knows what case that is. The McConville family is likely to sue the Sinn Fein leader in civil court. This, too, has already been reported.

“We owe it to McConville to reveal IRA interviews and tackle Adams,” the Herald headline reads.

Gerry Adams is to be tackled, challenged, sued, unmasked before an audience of voters, and weakened before the members of his political party. He is not going to be convicted in a court of law on murder charges, and no one—no one, period—believes that he will be.

The U.S. Attorney’s Office in Boston is using federal subpoenas to intervene in Irish politics, not to assist in a British murder investigation. I have been saying this for two years. Now the Irish press is saying it too.

Will anyone bother to notice this act of political malfeasance? Or do we simply accept that federal prosecutors should loan their authority to foreign political causes?

DOJ’s Assault on 1st Amendment and Northern Ireland’s Peace

DOJ’s Assault on 1st Amendment and Northern Ireland’s Peace
Dustin Slaughter
Open Salon
also: Firedoglake
APRIL 29, 2013

Oral histories of political movements give us glimpses of the participants who helped shape the world we know today. They often provide raw, personal first-hand accounts of peoples’ struggles. These projects also help to maintain historical truths that are often tainted by government revisionism and lost to cultural amnesia.

Tacit confidentiality agreements between historians and interviewees are naturally crucial to the birth of these histories.

So what happens when the Department of Justice and the Police Service of Northern Ireland decide to violate the spirit of a treaty between the United States and the United Kingdom by subpoenaing a confidential collection of taped interviews detailing Northern Ireland’s militant past?

The purity of historical record, as well as fundamental First Amendment issues like freedom of the press, and more specifically source confidentiality, are now under attack by none other than US prosecutor Carmen Ortiz – the same district attorney criticized for what many people called overzealous prosecution that likely led to activist Aaron Swartz committing suicide – and the DOJ, at the behest of Northern Ireland’s police forces. These parties apparently see fit to enflame a tenuous peace in Northern Ireland by tearing open historical wounds through their desire to prosecute former Irish Republican and Loyalist paramilitaries for unsolved crimes.

Beginning three years after the 1998 Good Friday Agreement, heralded by some as the beginning of a new – and peaceful – chapter between the United Kingdom and Northern Ireland, journalists Ed Moloney and Anthony McIntyre began tape recording interviews with members of Irish paramilitaries and their Loyalist foes. Their objective was to contribute a better academic understanding of what motivated otherwise ordinary individuals to join the armed conflict, as well as document the turbulent and important history known as The Troubles. They concluded their interviews in 2006 and the Belfast Project is stored today in Boston College’s Burns Library.

The lynchpin of the project was the confidentiality agreement McIntyre and Maloney forged with participants – from both sides of the conflict – some of whom divulged the names of militants. The stories were not to be released without their written consent or until their death.

Fast forward to 2011, when the Department of Justice, by way of a Clinton-era initiative called the US-UK Mutual Legal Assistance Treaty (MLAT), attempted to force Boston College to release the tapes by recklessly (and improperly, as I’ll address below) subpoenaing these confidential interviews at the behest of the Police Service of Northern Ireland (PSNI).

Authorities claim that Belfast Project interviews will assist in investigating the re-opened case of Jean McConville, who was kidnapped and murdered by the Provisional IRA in 1972. Current Sinn Fein leader and Irish president Gerry Adams, among others, have been implicated in the crime. Republican militants admitted their culpability some 20 years later.

Some, like Anthony McIntyre – a writer, historian and former IRA member who was jailed for 18 years in Northern Ireland’s infamous Long Kesh prison and was released in 1996, believe the motivation for the subpoena is more complicated – and sinister – than a mere desire to solve a horrible crime that happened in 1972 however.

“[The justice angle] does not have much traction, given that the PSNI was heavily involved in using law enforcement to break the law and immerse itself as a player in the conflict [during the Troubles],” he tells me through email.

“It is certainly not interested in solving homicides per se. It is interested in the selective solving of some homicides. Hence we have killings involving state agents not being pursued but others involving people opposed to the state pursued.”

The checkered history of Northern Ireland’s security forces supports McIntyre’s suspicion that the subpoena is politically motivated. The former incarnation of the PSNI, from 1922 until 2001, was the Royal Ulster Constabulary (RUC). This law enforcement organization has a storied history of human rights transgressions, as detailed in a number of reports, including one issued in 1991 by Human Rights Watch, which cite a wide range of abuses against Irish nationalists and which also point out numerous instances of RUC collusion with Loyalist paramilitaries.

Most notably, two members of a special anti-terrorist unit within the RUC known as the Special Patrol Group were convicted in 1980 of giving aid to Loyalist forces in the form of transportation, kidnappings, shootings and bombing attacks.

Besides these two Special Patrol Group members, no RUC or PSNI officers have ever been charged with crimes.

But it is what McIntyre calls the “retire and rehire” phenomenon taking place within the RUC-turned-PSNI that gives him the greatest doubt that Good Friday Agreement reforms have changed the police force’s apparent anti-nationalist leanings. A watchdog audit of the PSNI in 2011 found that almost 20% of the over 5,000 RUC officers laid off under reforms were rehired. The report describes the organization’s apparent reversion to its RUC roots as “out of control,” according to the Guardian, which ran the story in October 2011. The push to enter more Irish Catholics into the police force, a key reform from Good Friday, is clearly being rolled back.

And the Boston College subpoena, in light of all this, may very well be a political fishing expedition designed, at least in part, on hunting down old enemies of the British state.

Two plausible scenarios could emerge if the DOJ and PSNI are successful in accessing the Belfast Project interviews: Sinn Fein leader Gerry Adams will face prosecution for his alleged involvement in Jean McConville’s murder. Irish nationalist rage would likely spill out into the streets of Belfast.

Conversely, the PSNI may do nothing with the archive. If that happens, McIntyre tells me, “the British government decides it is too politically sensitive – not least for what may be revealed about their own knowledge and activities – to bring forward any criminal prosecution. Loyalist reaction to this will be, predictably, outrage. They will hardly accept, especially given the lengths that the British are going to obtain this material, that it was worthless.”

Clearly, either outcome could set off the tinderbox – and the two journalists who created the project have, since 2011, been consumed with preventing the potential unraveling of Northern Ireland’s peace process.

They’ve also rushed to protect what they correctly perceive as an erosion of journalistic freedoms enshrined by the First Amendment here in the U.S. More on this latter point shortly.

Anthony McIntyre and Ed Maloney began their protracted legal battle with prosecutor Ortiz after Boston College refused to appeal a lower court’s decision that the DOJ’s grab at the archives was legitimate. The two men found support from the ACLU of Massachusetts, the Reporters Committee for Freedom of the Press, and the Irish American Coalition, all of which added amicus briefs to the case.

After two years of overturned appeals, McIntyre and Maloney finally kicked the case up to the Supreme Court – only to have the High Court refuse to hear it last week.

With that final blow, every legal avenue is now exhausted.

This leaves only a political redress through a newly-minted Secretary of State John Kerry who, before taking the new post this year, served on the Senate Foreign Relations Committee. In a January 2012 letter to former Secretary of State Hillary Clinton, Kerry expressed concern ”about the impact that [the subpoena] may have on the continued success of the Northern Ireland peace process.”

Senator Kerry added: “It is possible that some former parties to the conflict may perceive the effort by the U.K. authorities to obtain this information as contravening the spirit of the Good Friday Accords.”

As noted earlier, the DOJ’s actions most certainly violate the spirit, if not the letter, of the U.S. – U.K. Mutual Legal Assistance Treaty. In a report submitted by Senator Richard Luger in September 2006, Luger states:

“The Senate’s understanding [is] that the purpose of the Treaty is to strengthen law enforcement cooperation between the United States and the United Kingdom by modernizing the extradition process for all serious offenses and that it is not intended to reopen issues addressed in the Belfast Agreement or to impede any further efforts to resolve the conflict in Northern Ireland.”

Kerry and Luger were not alone in their concern.

New York Senator Charles Schumer expressed consternation that the DOJ’s subpoena not only threatened to destroy a fragile peace across the Atlantic, but that it targeted freedom of the press. In a letter sent to both Secretary of State Clinton and Attorney General Eric Holder, Schumer stated:

“There are significant issues of journalistic confidentiality and academic freedom that are called into question as a result of this legal maneuver that make it dubious…I have always been a champion of protecting sensitive source material that is gathered by researchers – journalists and academics alike—and I am concerned that this action presents an infringement on that underpinning of the First Amendment.”

One need only look at the DOJ’s dogged pursuit of activists, such as the late Aaron Swartz, to see how far the Justice Department will go to score wins in court. It is not a stretch to believe they could use subpoenas to violate journalist-source confidentiality in future cases.

With over 100 similar bilateral assistance treaties between the U.S. and other countries in existence today, the threat this subpoena poses may have far-reaching – and unimaginable – consequences for international political movements, freedom of dissent and our own First Amendment.

 

PSNI Chief Constable Matt Baggott on Boston College Belfast Project Tapes

Alan Meban (MEBAN) interviews Matt Baggott, (BAGGOTT) the Chief Constable of the Police Service of Northern Ireland (PSNI) about the Boston College tapes.
23 April 2013

MEBAN: The (US) Supreme Court declined to hear the appeal over the rest of the oral history tapes from Boston College’s Belfast Project. So why do you want to hear those tapes?

BAGGOTT: Well, it’s not because I want to hear them. It’s because a modern police service operates within the rule of law.

And Article 2 is very clear – we have to pursue effective investigations into murders and unsolved murders. And when there is evidence that becomes available we have an absolute duty to take every investigative line to pursue where the evidence takes us.

The decision making on whether there is evidential…you know…the possibility of a charge being brought – or whether there is a public interest in doing it – is not mine.

And I think there is still a confusion, particularly because devolution is so new, about the role of the police. Our role is simply to gather fact, to investigate crime and then present that to the Public Prosecution Service (PPS).

So whether it’s a Boston tape or whether it’s an historical murder – there is no amnesty in Northern Ireland – but there is the law.

And the law is part of devolution of policing and justice and my job as the impartial Chief Constable is make sure we pursue that impartially.

MEBAN: Wouldn’t it have been much more straightforward though to go and talk to people involved? Dolours Price was around and talking to nearly anybody?

BAGGOTT: Well, no because see…you have to pursue tangible evidence.

And if there are tapes in existence which contain evidence which may corroborate or may not – I don’t know what’s in them – it may corroborate – it may disprove – I mean, I mean following fact isn’t about provability sometimes it can be about disproving. It’s facts. You just follow the facts.

MEBAN: But if you took a very unreliable kind of fact, reminiscences of people who have been involved in The Struggle telling war stories and saying what was going on, would it ever go to court?

BAGGOTT: But that, ultimately you see, is for the Public Prosecution to decide.

What we will do is look at that. We’ll look at the evidence. We’ll look at the fact. We’ll pursue that. Ultimately, whether a charge is sustained in court is a matter for the independent Public Prosecution Service.

And that’s where the justice system works. It works with the police pursuing facts, investigating, the Public Prosecution Service making decisions and then the courts robustly testing that evidence through due process. And you know it’s not my job to say: Oh, we’re not gonna do that because it may be inconvenient or we won’t do that because hey-ho! what’s the point? My job is to make sure that we impartially deliver effective investigations.

(ends)