Irish Radio Network, USA: Audio interview with Advocacy Groups Fighting Subpoena

Irish Radio Network, USA – Adrian Flannelly Show
November 12, 2011

Program: Michael Cummings, National Board, Irish American Unity Conference and John Foley, prominent Boston Immigration Lawyer, speak with Adrian Flannelly about the fight against British subpoenas of the Boston College Oral History Project.

Listen to the archived show here:

Adrian Flannelly (AF) interviews Mike Cummings (MC) and John Foley (JF)

Topic: The PSNI subpoenas for materials from The Belfast Project to Boston College

Adrian Flannelly (AF): Friends, you’re listening to Irish Radio Network USA. I have, well, we’re about to link up, hopefully, with two guests. One, when he’s at home, lives in Albany (NY) He’s Michael Cummings, a native of Springfield, MA; has been active in Irish-American organizations for over thirty years. He has been a member and continues to be a member of the national board of the Irish-American Unity Conference. Now he’s also served in varied capacities but primarily as Public Relations Officer for four national presidents of the Ancient Order of Hibernians and currently serves on their board. He’s also, for many who listen to this program, he’s been a regular contributor to our programs for the bulk of thirty years, three decades. Anyway, Mike, you’re very welcome to the program.

Michael Cummings (MC): Thank you. Glad to be with you.

AF: And I hear, actually, that you got out of the house this weekend and heading up to The Berkshires as we speak.

MC: Yes. I’m actually calling from The Cornell Inn in Lenox, MA in the Berkshires. We had to fight some sleet on the way but it’s just good to get away once in a while.

AF: Absolutely. Okay. I’m also delighted friends to link with Boston, MA and to welcome John Foley. John Foley, an immigration lawyer primarily (a) principal attorney. And he is the grandson of immigrants from Galway. (jests) You almost got it right another county, you’d have been okay there, John, if you’d moved up to Mayo, but anyway we can’t choose those things (laughs). (JF interjects: Close enough.) And to say an active member of The American Immigration Lawyers Association is an understatement. Dedicated to keeping current with the changing immigration rules, document requirements and indeed his client base is and has been… you’re supposed to be the prophet of Boston, MA when it comes to visas and making sure that everything is done and filed correctly. That would be a topic for another day (JF interjects: It will be. It will be, yeah.) because we don’t want to lose Mike Cummings because, his, again on a very serious note, there seems to be, with the exception of areas like Boston and New York, there seems to be less of an awareness of what the Feds’ subpoena to Boston College regarding their Oral History project, which is again now being subpoenaed and I think we’ll leave this one to Mike Cummings.

MC: Thank you, Adrian, I think we have some great people throughout the country, including people like John in Boston, who are starting this awareness campaign and we feel grateful that you have taken upon yourself to expand our audience a little larger even. The federal government, pursuant to a treaty with the United Kingdom has, as you stated, issued some subpoenas for documents or tapes that are in the custody of The Burns Archives at Boston College. There’s two views of this process that are ongoing, at least by activists like John and myself, and that is that there is a legal case going on in which Boston College is fighting the response to the subpoena, on grounds that a…on a number of grounds which John could probably elaborate on. And then there’s the broad view we think the view might be equally meritorious, at least for elected officials, and that is that does this government want to be doing the bidding and doing favors for a police department in Northern Ireland that is more known for its corruption and lawlessness than it’s been known for law enforcement. And that’s where this stands. We’re trying to reach out for people to talk to and write and visit with elected officials like Senator Kerry in MA and I understand John has an update on that from his meeting and calling with Senator Kerry’s office today or yesterday. And the principals in this battle, Attorney General Holder and Secretary of State Clinton; Secretary of State Clinton because she could say to the Attorney General Holder: Look, this peace process in Ireland is still getting underway and its got a long way to go but responding to this supoena is possibly undermining that process in a number of ways. And so if she were to explain that to Eric Holder that would give him one grounds for him not enforcing the subpoena. The other grounds of course is that the subpoena itself is not part of a bonafide criminal justice/criminal law investigation or would be repugnant to our system of law values and again, John could speak more to that, but we already know what Northern Ireland’s contribution is to law enforcement. So, with that kind of setting, as I understand it, Adrian, John’s got some news from the front both with from Gerry Adams in Boston and from Senator Kerry’s office .

AF: Alright, the that brings us again to welcome again John Foley. Yesterday was a big day in Boston. I know that The Irish Echo Bridges Conference took place there and that was attended by Gerry Adams and I am sure that the The Irish Echo lunch in Boston, whatever else was going on there, was in fact utilized to underline this elephant in the room because that’s what it’s turning out to be.

John Foley (JF): Well, it certainly is turning out to be an elephant in the room in fact, it was just out the window. If you could look out the window from the ballroom where the luncheon was held is The Moakley Federal Courthouse and that’s where this matter is being litigated right now. Mr. Adams was asked about the Boston College subpoena and I was a bit surprised, he said he wasn’t bothered by it at all. He said he understands that some consider him to be the target but he was more critical of Boston College than anyone. He said they needed to provide some answers and that they should have done a better job in setting up the project in the first place. He didn’t really seem to want to talk about the specifics of the subpoena issue, he really wanted to talk about that the role Irish-Americans could play. And it’s the same role that Mike and I are trying to play now and that’s to keep our elected officials informed and in-the-know about what is happening in Northern Ireland because it’s not always what it appears. What you get from Northern Ireland, specifically the police, PSNI or the RUC, as they were known, it’s not always what you think it might be.

AF: Is it possible though, John, then I’ll ask you Mike, is it possible that because the very strong suspicion is that the primary reason for these subpoenas in the first place is that the British, in their infinite wisdom, are of the opinion that there could be a direct connection to Gerry Adams as a result of this 1972 atrocity and that that it puts Gerry Adams perhaps in somewhat of a defensive position and say “Eh, I’m not worried about it”. John?

JF: Extremely unlikely. I mean, the event happened in Ireland it didn’t happen here. There’s no new information here. And if they really felt that then they should come forward as investigators and put their name on the line and tell us who they are and what they’re looking for. This is an anonymous subpoena, no names are attached, and, you know, I think it’s more likely yet another PSNI stunt/witch hunt and we, the US government, are being used as the foils of the powers-that-be inside PSNI.

MC: Yes, John and Adrian, I wanted to say that view, I think, is the more prominent one because if the Northern Ireland police were in any way interested in investigating cases in 1972 they would have done so and would have had a file on it; the individual involved was allegedly a British informer. So there might not have been any great interest in pursuing an investigation. But when Jim Cullen, an attorney in New York who’s been in the vanguard of challenging them on this issue, his conversations with principals over there have indicated that they didn’t know where the subpoena came from, they had nothing in their file on the individual case involved and his suspicion which he believes bears fruit almost everywhere you turn is that the rogue elements still remnant in the RUC and PSNI managed to get this through. Now the interesting part is that when Owen Paterson visited New York last week, he seemed to be somewhat unaware of the subpoena and even suggested that he, meaning the United Kingdom, did not have anything to do with it. Although, as I understand it and maybe John could correct me, the subpoena pursuant to, the request pursuant to subpoena, no, the request pursuant to MLAT treaty, has to emanate from the Home Secretary’s Office to the United States. And so someone in Whitehall and the Home Secretary’s Office put their rubber stamp of approval on this and put it on its merry way to Attorney General Holder. So once again we’ve got the British talking out of both sides of their mouth and I don’t know who to believe or we don’t know who to believe.

AF: I know. And Secretary of State for Northern Ireland, Owen Paterson, was a guest on our program here and again it was, for somebody who seemed to be extraordinarily well informed about every other aspect, this whole subpoena thing seemed like…(referring to Paterson’s reaction) I don’t know, maybe you’re talking to the wrong guy? But how can… if we don’t even know where the subpoena is coming from, if there are no names attached, wouldn’t you image that, let me see if I can alienate Boston College here now before we get too deeply into this, well, wouldn’t Boston College from the getgo say “Excuse me, this is not how we do business”.

JF: Well Boston College is in an interesting position. Boston College, for more than thirty years, has tried to play the role of impartial third party when it concerns Northern Ireland. They’ve invited both sides to its campus and they have come and they have been able to meet on its campus and they’ve been able to speak to one another face-to-face which they weren’t able to do, you know, in Northern Ireland. So BC is very proud of that role and I think in the long run they’re going to play a very significant role in the peace process. But right now they’re in a bit of a bind. The two ways out of this: one would be the legal way through the court and the other way is the political way. And what we can do here as Irish-Americans is go the political route. And so with that in mind a number of Irish-Americans from Boston met with Senator John Kerry and his staff. And we asked Senator Kerry because he’s the Chairman, the current Chairman, of the US Foreign Relations Committee, to contact the Attorney General and the Secretary of State concerning this anonymous subpoena that has been served on BC. We know that Senator Kerry spoke with the Attorney General this past Thursday. And according to Kerry’s staff, Holder said the judicial process should be allowed to play itself out and that BC should make its case in court. But then Senator Kerry pointed out the specific language that was added to the treaty by the Foreign Relations Committee concerning issues coming out of Northern Ireland and the specific promises that were made to the Foreign Relations Committee members by the British government when the treaty was being negotiated. Kerry was one of those Senators as was former Senator Dodd from CT and Vice-President Biden when he was in the Senate. So Kerry also pointed out the negative effect this unnecessary controversy would have on the ongoing struggle for peace in the North. So the Attorney General, Mr. Holder, agreed to review, to “circle back” was the term that he used, and he agreed that he would look at the situation again with Senator Kerry’s concerns in mind. So we’re somewhat optimistic that Senator Kerry’s conversation with the Attorney General might make a difference and we expect him to speak within the next week or so and we’re hoping that the Attorney General will recognize that the powers that be, whether they be in London or Belfast, didn’t follow all of the required steps and he will squash, or terminate, the subpoena and put this matter to bed once and for all.

AF: That would be great if we had any good reason to believe, you know, that perhaps that wouldn’t happen in which case we’d say “well, too bad that didn’t work out”.

JF: Well if it doesn’t work out then we take it to the next level. I mean this matter isn’t going to go away. If we can’t get it resolved politically then it’s going to be resolved in… the first battleground is gonna be the Moakley Courthouse here in Boston. This is a matter that affects a lot of things including research by colleges and confidentiality agreements (AF interjects: Oral History) and international relations. So if it can’t be resolved politically this is…it’s a bump in the road for BC but it’s a bump in the road that might put everybody in front of the US Supreme Court in the years ahead.

AF: Wow. Can we go back to Mike Cummings because on more than one occasion, the Ancient Order of Hibernians has had reason to take issue with Boston College. What was the feeling at the time, if we go back to 1972, of the events that took place that are actually, let’s talk about, the interviews themselves, the establishment of Oral History and what the Ancient Order of Hibernians thought about it at the time or if they were even consulted?

MC: I don’t believe they were consulted in fact, what you alluded to earlier and John has confirmed with the position of Gerry Adams vis-a-vis Boston College is that there is some suspicion by some people that the two principal research people in the archives project, the specific project, are very anti-Republican or at least very anti-Sinn Fein and personalities in Sinn Fein, and by doing this Oral History project were, in a way, giving some expression to that view; but I’m not on the national board of the AOH anymore, Adrian, I am on the national board of the IAUC. But Ned McGinley and Dan Dennehy, whom you know, have been parts of several meetings, in fact we were with Senator Schumer’s state director, a guy named Martin Brennan, and he, Jim Cullen and Dan and myself were explaining that the only people who seem to benefit, if this subpoena is enforced and responded to, the only people who seem to benefit are the dissidents; the dissidents of the rogue elements in the police and the dissidents against the peace process in the Republican community. So why would we want to possibly contribute to that in any way?

AF: Why, if we go back…was Boston College out front in terms of developing Oral History with respect to the conflict in Northern Ireland, were they the first?

MC: John might be better at that.

JF: Yeah, let me take a bite at that one. This has been a project that BC has been involved in for many years. I don’t know the exact date, but they didn’t tell anybody, they were doing it on their own and what their goal was was to create an archive so that future generations could look back on this war from all sides, from the Republican side and the Loyalist side. And what they did was they gave all of these individuals an agreement that it would remain confidential until after their death. In fact, they’ve already published the first book about the archives, it was Voices From the Grave. And it was, you know, a Republican and a Loyalist that passed away and it went through their history of the entire event. So Boston College never looked for publicity on this, they looked as this as one of their ongoing steps to play a role in Northern Ireland and to be an impartial third party speaking to both sides. They consider themselves a victim in this and they consider themselves the kind of a victim of a dirty trick, if you will, by elements inside Northern Ireland. They’re very reluctant to point fingers but having said that, they have a fantastic Rolodex; they’ve been in Northern Ireland, you know, for decades, they’ve been working there for decades and they’re doing their best, quietly, to make this matter go away.

MC: If I could put a footnote on that, Adrian. Notre Dame has a pretty good Irish archives as well and an AOH archives as well but they never saw fit to invite Margaret Thatcher for an award which, of course, Boston College Alumni did.

AF: (jests) By the way, John Dewey takes credit for that, and for a lot of others things, but anyway, that one in particular. (all laugh)

MC: We had a good Cardinal at the time who, just by questioning the motives, we are talking Jesuits here, the motives of those who invited Margaret Thatcher, they quickly started backtracking on the invitation.

AF: Oh, I know, do we ever know. Let me ask you, John, I’d say on this one, about the reaction of Boston College when they got the subpoenas, that the level of interest seemed to be very specifically for cherry-picked evidence. For instance, if there was a subpoena, one might expect that if they were going to Boston College where this was not just an Oral History of the IRA or IRA activity but in fact of all sides involved would that not have said well, wait a minute, why are you cherry-picking here? And where does that leave us with our Oral History and our files as we go forward?

JF: Well let me tell you, first of all, when they first received the first subpoena and there’s been more than one, when they received the first one, they responded by giving them some information about the interviews for the individuals who had already passed away because the confidentiality agreement obviously ended upon death. And then they pushed back on the matter that is still confidential. And so what the folks in Northern Ireland did is they sent a second, broader subpoena but it deals only with matters only on the Republican side, nothing about the many atrocities that took place on the other side. So it’s on it’s face it’s one-sided and clearly it’s a witch hunt. But Boston College’s problem is that they still have to respond. The US Attorney is in charge of obtaining this information and Boston College has to answer the subpoena. And until that subpoena goes away, Boston College, you know, still has a court fight on it’s hands and as I said, if they don’t get the result they want in the District Court, I foresee it climbing the ladder and eventually ending up in front of the US Supreme Court.

AF: Okay, the short cut, if we go back to Mike Cummings, the short cut would appear to be, and tell me whether this is wishful thinking more than realistic, is that Secretary of State Hillary Clinton, who is no stranger to Northern Ireland and to the peace process, that taking the Attorney General Holder to one side, and then perhaps getting again a pretty strong and clear message from Senator John Kerry, that maybe that might be something? What is the process for withdrawing?

JF: Can I jump on that one? I think the answer is common sense. Adults have to come into the room and say: folks, this makes no sense. We’re reacting to this anonymous subpoena that asks for information that dates back before the Good Friday Agreement when we had agreed we weren’t gonna do that. So, squash the subpoena, send it back, tell them to try again or to go home.

AF: Could we also…is it of benefit in this case here to say well, wait a minute, if the Secretary of State for Northern Ireland seems to little or nothing about this, then let us just assume, based on that, that this is coming from London, that this is not actually coming from the PSNI, Police Service of Northern Ireland, or is that only muddying the waters further?

MC: Well, it’s.. I think that it is muddying it further, you’re right. It’s clear that the treaty process provides for the request to be submitted through Whitehall and London but it originally emanated from the PSNI in Northern Ireland. I think your point earlier that, why cherry-pick this one, I mean, when you consider under the Good Friday Agreement that there are murders of Catholics in large numbers even going back to that time period, the McGurk fire killing, I think it was fifteen people involved, the Ballymurphy was eleven people involved; there’s no rush to investigate those crimes. But all of a sudden they pick this particular case out and make it a test case, if you will, John might known better about that than me, but we can only figure out that this is their first attempt to use the treaty in this manner. And if we leave with nothing else (with) the people who are listening, if they could get on the phone and write a letter, ask to meet with the any of the US Senators, Senator Schumer, Senator Kerry and other members of the Foreign Relations Committee as well as communicate their views to Secretary of State Clinton and Eric Holder, we can put this process on hold, and as John said, essentially tell the British have another go at it with somebody else.

JF: That’s right and that’s the way we resolve this. We as Irish-Americans still do have an active role to play. What we need to do is simply send simple emails, we can get their addresses, they’re online, they’re very easy to communicate with. Just say I’m familiar with the BC subpoena request, totally against it, please don’t let this happen. It’s as simple as that. Irish-Americans still have a role to play in Northern Ireland. We play it here because Irish-Americans can still reach across the Atlantic and have a very influential role and this is another way. We have to stay involved and stay on top of what’s going on over there and our voices have to be heard.

AF: It’s also, of course, maybe an ideal time to bring this to the attention of Irish- Americans in particular who feel that they’ve already “given at the office” so to speak, in playing such a significant role in getting the peace process to where it is and in fact it might not be any harm, at this stage of the game to say well, considering that the British government has now totally rejected the Finucane case and an independent inquiry into that, and are pretty much dictating that they have appointed somebody of impeccable character to review the Finucane case, that it would appear that none of this is going to be helpful in the rather shaky peace process in Northern Ireland, going back to Mike Cummings again, this is fodder for dissidents on every which side.

MC: It occurred to me as there’s a news report out in the last week or so I think, the President, the current President of Ireland or the past President, I don’t know when they actually swear in office but, (AF interjects: yesterday, yep). Was it yesterday? Okay. Well, she was citing the fact that the peace process was one of her lasting legacies, that she hoped would be one of her lasting legacies. And I think that’s what you’ve touched upon is that the American contribution to this, and I mean Americans from all over, and elected officials all over, who have voted for The Ireland Fund, and have spent their time and energy acting as true negotiators, not like the British mediation. It’s a lasting legacy for her if this peace process hangs together and these examples, the Finucane issue, the subpoena issue, and the failure to respond to anything on Dublin-Monaghan bombings, these show that sinister part of Britain is still not convinced that we can play any part in the peace process and I hope Irish-Americans and Americans of all stripes and colors do as we suggest and let their elected officials know.

AF: Can we go to The Irish Echo Bridges Conferences yesterday and…what other issues? What were the issues which, say, Gerry Adams would have addressed, if we take this, you know, thorn of an issue out of it, what was his read on Northern Ireland? On say, the PSNI? Was there positive?

JF: There was alot of positive. Most of the entire conference was all positive in fact, there was very little negative. The bulk of the negative you have to lay at the hands of the people inside PSNI. His big thing was doing business, you know? There were a number of people there who had hotels in the North, who were bringing tours over and vice-versa. There were elected officials from both countries so it was extremely positive and the ties between the two countries are obviously very, very strong. Another issue that came up that was somewhat sticky had to do with the Finucane inquiry. And as Mr. Adams pointed out, this was a treaty between the United Kingdom and the government of Ireland; that this matter would be thoroughly and openly investigated. This is a breach of a treaty and how are we going to hold them accountable for it? Yes, Mr. Finucane was murdered a long time ago but they still haven’t revealed, you know, all that they know about it and we need them to do that. Mr. Adams’ big message was: Irish-America has played a big role in the past, we need you to continue to play a big role because while the shooting may be over, things certainly are not settled over there and there are alot of issues that Irish-Americans can have a role in.

AF: I think it would also be appropriate for those of us who will, you know, start those emails and the telephone campaign to basically point out what Ireland, what Northern Ireland particular, needs now, is more investment. They are relishing and benefiting from a massive increase in tourism, and again, particularly in Northern Ireland. And there’s nothing that come out of this which will endear Irish-Americans other than to again send a very negative message and one which became obvious when the first subpoena was issued in the first place. Again, go back to the cherry-picking: if you’re going to go back to 1972, you can’t slide over the Finucane case and then assume that the Good Friday Agreement was all positive and intended to be for the good of Northern Ireland today.

MC: President Bush, when he sent the protocols to the United Kingdom with a cover letter, he indicated that nothing in this treaty prevents the United States from derogating, which essentially means it can overlook or withdraw from certain provisions if it’s against its own public policy or against the criminal justice values of the United States. To bring a current case forward, keeping Gerry McGeough in prison for no reason that anybody is aware of, and certainly those other cases that you’ve mentioned: the Finucane, McGurk and Ballymurphy. Those are all violations of our sense of justice, our sense of true law enforcement. So Eric Holder has all the tools he needs to take this subpoena and tell the British what they can do with it. I guess it’s basically our subpoena but it’s in response to their request. And with enough interest expressed by people listening and the word of mouth, I think we have certainly laid the foundation. The three presidents of the most active Irish-American organizations, Seamus Boyle of the AOH, Tom Burke of the Irish-American Unity Conference and Mr. Dunne of The Brehon Law Society have all sent letters to Holder and to Secretary Clinton so they certainly can’t be told they they.. can’t tell anyone he’s not aware of the issue, and I think with Senator Kerry’s call there’s even going to be more pressure to slow this process down, take a second look and hopefully, do the right thing as John says.

AF: What we can say though is, that just because of the very nature of subpoenas and the time that elapses that this is not taken care of. It is a live issue. And people who are interested in the situation today and the goodwill Irish-America has shown Northern Ireland it would be a helluva thing if we let this one slip into where it becomes irreversible or with extreme negativity which will stir up everything again. That’s why I thank both of you for joining us here today. In particular, Mike Cummings, listen: getting the silent treatment from the wife is not the worst thing in the world, is it? (all laugh)

MC: Yes, I agree with you. There’s an upside and a downside, you’re right. (all laugh)

AF: Yeah. Time heals everything, right John? (laughs)

JF: Exactly. (all laugh)

AF: Mike Cummings, thank you very much. And of course to John Foley, the principal of Foley Law Offices in Boston, MA. Watch this spot. Write these letters friends, because this is not going to go away and it can turn sour if we contribute to that by doing nothing. You’re listening to Irish Radio Network USA.

(Sign Off). Program ends.