The Honorable Hillary Rodham Clinton
U.S. Department of State
2201 C Street NW
Washington, DC 20520
Dear Madam Secretary:
I write to request your intervention in a matter that threatens the work done by so many to maintain a fragile peace in the North of Ireland through the Good Friday Agreement. Having recently returned from a fact-finding visit with colleagues of mine in the Massachusetts Legislature I am concerned that much of the progress I witnessed in ventures between the communities will be threatened with this court action.
Pursuant to the Mutual Legal Assistance Treaty (Treaty) between the United States and the United Kingdom, the U.K. is subpoenaing oral history records from the “Belfast Project” collected by researchers at Boston College. The rationale for this legal effort is not consistent with earlier representations made by those negotiating in good faith that that the Treaty between the United States and the United Kingdom would not be used in connection with acts allegedly committed prior to the Good Friday Agreement. I question the legal justification presented by Her Majesty’s government because of the enormous goodwill that created such an historic agreement.
Given the strategic significance of stability in Northern Ireland, it is in the best interest of the United States government to not cooperate with the strict reading of the Treaty and allow for a waiver given the serious possibility of the Agreement being undermined.
I respectfully request that you involve yourself personally and urge our Attorney General to withhold American cooperation on these British requests and to state that we will oppose any effort to use the Treaty for political purposes when it will undermine the peace in Northern Ireland.
Thank you for your time and attention. Should you or a member of your staff wish to discuss this matter further, please call me.
Very truly yours,
EUGENE L. O’FLAHERTY
State Representative, 2nd Suffolk District
I warn you in advance: I’m mostly repeating myself, here, on a matter of personal concern that you will only want to know about if you’re closely interested in the saga of the Boston College subpoenas. If that’s not you, then here, watch this soothing music video instead:
Okay, still reading? Then here we go. Remember how Boston College spokesdork Jack Dunn keeps spitballing bullshit descriptions of the Belfast Project’s inception, particularly trying to muddy the waters with regard to the crucial matter of the contractual warnings interviewees got about the legal limits of confidentiality?
Here’s the thing about that: No one on earth is stupid enough to believe anything this dude says. I mention this again because we have a new example in the government’s latest appellate filing, delivered to the First Circuit this week with the steam still rising from it. Like everyone else, the government’s lawyers know who signed the contracts with Belfast Project interviewees, and they know what was in those contracts. Look at pg. 53 of the government’s brief (which is pg. 65 of the PDF file):
“First, Boston College was party to the principal agreement with Moloney that included the terms of confidentiality that applied to the interviews, and Boston College, through the Burns Librarian, not appellants, signed the donation agreements with the interviewees. It was Boston College, not appellants, that had custody of and title to the subpoenaed materials.”
The government is fudging, there, by not mentioning the language of the donation agreements, but they know perfectly well what happened at the start of the project: The Burns Librarian signed contracts with the Belfast Project interviewees. (Which is actually kind of a shame, because if the contract was directly between Moloney or McIntyre and the interviewees, the researchers would probably have an easier time fighting the subpoenas in court.)
Anyway, pg. 6 of the brief (pg. 18 of the PDF file):
“There were no separate written agreements between Moloney or McIntyre and the interviewees.”
Pg. 35 of the brief (pg. 47 of the PDF file), with citations omitted and emphasis added:
“That agreement, Moloney’s agreement with McIntyre, and the ‘Agreement for Donation’ between the interviewees and Boston College provided that all transcripts and recordings of interviews would be transferred to Boston College. Moloney is not the custodian of the materials. He was an agent of Boston College at the time he participated in the Belfast Project, an association that ended in 2006…Moreover, disclosure of information by Boston College in compliance with the subpoena and court orders does not violate Moloney’s duty of confidentiality. He has no independent rights or obligations under the agreements between Boston College and the interviewees, which were executed by the Burns Librarian at Boston College, and through which ‘absolute title’ to the recordings and transcripts was assigned to the Trustees of Boston College.”
So, again, here’s Jack Dunn in late January, describing the inception and organization of the Belfast Project:
“From the very beginning of this project, which was conceived by Ed Moloney — he approached Boston College with the idea to record conversations with former paramilitaries from the IRA and the UVF, and he asked if we would be interested in being a repository of these materials. Boston College is America’s leading institution on Irish studies, Irish history, Irish literature. We agreed to add it to our extensive holdings as one more example of something that could be used as a resource for future historians, for journalists, etc., regarding the Troubles.”
This is, I never tire of saying, a string of recklessly untenable lies. Boston College was in from the opening bell. The Burns Librarian, Robert K. O’Neill, signed donation agreements with Belfast Project interviewees. Ed Moloney and Anthony McIntyre had no involvement in the creation of those agreements, which were not agreements between them and their interviewees; they were agreements between the interviewees and Boston College, full stop.
Those donor agreements, and any failures in their language and form, belong to Boston College. As the latest evidence reminds us, no one doubts it.
Adrian Flannelly (AF) and John Dearie (JD) interview Carrie Twomey (CT)
John Dearie (JD): You know, Adrian, before we get into some good, traditional, end of our Saint Patrick’s celebration music, it’s my pleasure to introduce Carrie Twomey. And Carrie is, she’s an American citizen. She’s married to Anthony McIntyre. She is very much involved, and while we’re so short on time, but the concern is with regard to the issue of Boston College, the release of the information of the secrecy of the interviews at BC and of course and Carrie, your own concern…Why don’t you tell us about it but we’ll have to come back at another time to really get into it. What is your concern as it relates to the direction and the concern that we all have about the release of the BC tapes?
Carrie Twomey (CT): Well, my immediate concern is the safety of my family and the safety of the interviewees that participated in the project, both Republican and Loyalist. But I’m here this time around because of Saint Patrick’s Day (and) the focus on Irish issues. We have our appeal hearing coming up on April 4th and so now is the time for the pressure to be put on the politicians to step up. We need somebody of courage who has the power to step forward and do the right thing on this.
JD: Who is it that you think, at the end of the day, is the decision maker on this? Is it the Justice Department?
CT: The Justice Department, certainly, but we have been lobbying ….
Adrian Flannelly (AF): The Attorney General, who could, if the right pressure was there indeed, not that he has not been pressured, but the Attorney General of the United States could pull this, get rid of it, in a split second.
JD: What’s your sense as we stand here today? What is your sense as to how it is gonna to go?
CT: We have been lobbying Secretary of State Clinton extensively on this issue. And when you’re asking: “Who has the power?” I think that we need to go straight to President Obama who can go to the Attorney General, as you say. He’s the one that has to have the courage on this issue and should step up for Irish-America, for academic freedom, for the civil liberties that are at risk here and do the right thing on this issue.
JD: One of the concerns, I would say, is that you saw the love-fest here that took place between the Prime Minister and the President this week and that’s not easy to totally ignore, unfortunately, and it makes the challenge more difficult.
AF: And the timing is terrific too, Saint Patrick’s Week. But anyway…
CT: One of the issues that came out of the meetings between Obama and Cameron was the UK’s desire to roll back the Extradition Treaty. And that should concern Irish-America very much.
JD: Stay with it, Carrie. We look forward to having you back so we can explore this much, much further. I think it’s probably the dominant issue in the Irish-American community today. So let’s hear more about it. Stay in touch with us.
AF: And indeed, it was brought to our attention long before it became an international issue through our mutual friend, Mike Cummings, up in Albany.
JD: Very much so. Mike is phenomenal!
CT: Oh yes! The Irish-American Unity Conference has been great! Peter Kissel hosted me in DC when I was meeting members of Congress. I cannot thank the Irish-American community enough for their support on this issue.
JD: It’s an important issue. It has significant ramifications, beyond even, the BC issue, so we’ll be staying on it. Thanks and all best wishes to you. Happy Saint Patrick’s Day!
CT: Thank you very much for your time. Happy Saint Patrick’s Day!
JD: Thank you very much, Carrie.
AF: Thank you very much. Keep it up. It is coming to a head and it’s going to work out.
Radio Free Eireann
Saint Patrick’s Day Special WBAI – New York
Saturday 17 March 2012
Sandy Boyer (SB) interviews Carrie Twomey (CT)
Sandy Boyer (SB): You’re listening to Radio Free Eireann WBAI 99.5 FM and this is our Saint Patrick’s Day Special. And we have just about an hour and twenty minutes to go and then the last hour we’re going to turn it over to Eliza Butler to spin her inimitable mix of Irish music. But we’re very lucky that we have Carrie Twomey in the studio today, who’s normally in Ireland, and her husband, Anthony McIntyre, was the Lead Researcher on what has become known as The Belfast Project at Boston College, which was a very innovative attempt to get an Oral History of The Troubles from the point of view of the IRA veterans, the UVF veterans, the people who were actually on the front lines fighting it. But Carrie, now we have the pretty terrible spectre of the US government, at the bidding of the British government, trying to subpoena some of those papers. Carrie, can you tell us about it?
Carrie Twomey (CT): It would be like trying to subpoena Ernie O’Malley’s notes to use them to prosecute him for On Another Man’s Wound. It’s just a terrible situation. When I was last here we were in the lower courts and our Motion to Intervene and Boston College’s Motion to Quash was over-ruled or dismissed, basically. But we have very good lawyers in Eamonn Dornan and Jim Cotter, and they managed to get a Stay on all the material being handed over, pending an appeal, which is going to be heard in April. So I’m here to continue lobbying, to continue the political pressure to get this to stop.
SB: Very specifically, we’re talking about tapes (and) interviews about the case of Jean McConville, who was allegedly an informer for the British in a Republican ghetto in Belfast. But Carrie, it looks like this is a fishing expedition, an attempt to use these interviews, if they can get their hands on them, to mount criminal or maybe even civil prosecutions.
CT: Oh absolutely it’s a fishing expedition. There’s no question about that. And we do believe that because these are unsworn testimony, it’s going to be uncorroborated, it’s not going to meet the standard of evidence in a criminal court. We believe that there is a move to try to get them released as criminal evidence in order to proceed with a civil suit against people like Gerry Adams. That’s not what this Oral History was gathered for and that’s absolutely wrong to do and the US courts should not have proceeded as far as it has with it. The Department of Justice should have said “No” as soon as it landed on their desk.
SB: What we suspect, we can’t quite prove it, but it’s looking more and more like this is an effort targeting very specifically Gerry Adams, trying to try to drag him into court to face charges that he gave the orders to kill Jean McConville and that’s a fairly scary prospect.
CT: Well it could, potentially, destabilise all the work that has been done over two decades for the peace process, to get someone like Gerry Adams in court order when in order to have peace…And this sort of happens in conflict zones around the world when they get to a point of deciding, okay we’re going to stop the conflict and move on forward with peace, you have to draw a line over the past in order to move forward. So to bring somebody like Gerry Adams, or to be incarcerating somebody like Marian Price, as Eamonn (McCann) was talking about, that flies in the face of trying to continue with peace.
I think that there’s been a complacency that’s sort of settled with all the main participants in the peace process and this has meant that the dinosaurs are now roaming the Earth and they’re pulling us back and they’re regressing and we’re seeing an erosion of all the moves that have come forward and created stability within the North. I think we’re at a dangerous point in that, and we need to find somebody who has the power, whether it would be Secretary of State Clinton or even President Obama, to have some courage and to lead the way and focus everybody on having a re-commitment to this peace process.
SB: You have to wonder if they could (If they could. I’m not saying they will, but if they could) drag Gerry Adams in, who would be next? It’s very unlikely they’d stop with Gerry Adams.
CT: Exactly. In a way, with all the people they have been dragging in front of the courts, Gerry Adams should be asking: “Am I next?” because he’s not the first and he won’t be the last.
SB: And it is entirely possible that Martin McGuinness, who’s now the Deputy First Minister of Northern Ireland, could find himself dragged in after this.
CT: It’s possible. It’s quite possible.
SB: But Carrie, I think you’re right. You said something very important. We’re fighting this in court and as you’re saying: there’s great lawyers, and it’s come a long way…but you never know what’s going to happen in the courts…you can’t just trust the courts. We really need someone to stand up and say “Enough! Halt!” Tell the British: “No. We’re not going through with this. We’re not handing over the records.” But, that doesn’t happen easily; you’ve really got to generate pressure. Unfortunately, because the time is so short, it really has to be pressure from public officials, prominent people, and I think that’s alot of why you’re here.
CT: It will really take courage. What we have right now is a situation where you have the Department of Justice and the State Department and the various…even the Secretary of State, Owen Patterson, at NIO (Northern Ireland Office), they’re all looking at this wringing their hands: (mocks) “This is terrible! This is awful! Look at this train coming on this track and the train on the other and there’s going to be a terrible wreck!” and none of them have the courage to come up and say “Well, here’s the switch to switch the track and avoid this train wreck that we all see that’s coming.” The Department of Justice is pursuing this as a straight criminal case and the State Department doesn’t want to interfere politically.
But they all know this was the wrong thing to do. This has snowballed and it’s going to be a disaster on so many levels. We need to find that person with courage whether it be Secretary of State Hillary Clinton or whether it be President Obama who says, “Alright. Time to throw the switch. This should not be happening. It was a mistake.” And roll it back. And in part and parcel with that, part of why this has been so contentious: we’re at at the end-stage peace process, we’re at the end-stage of conflict resolution where we’re dealing with legacy issues, issues of the past, the British have completely dragged their feet about getting a Truth Commission, so everybody’s looking at this Boston College archive because of its uniqueness as “Well, let’s get the truth from there”. Like I said, this re-commitment to the peace process needs to move things forward so that there can be a proper Truth Commission and not using this in the absence of one.
SB: As you can judge from her accent, Carrie may live in Ireland (but) is an American citizen; grew up here, grew up in California, I believe. You now have a very personal stake in this. Your husband, Anthony McIntyre, if these tapes are turned over, if people are dragged into court, Anthony was the Lead Researcher who did interviews with members of the Provisional IRA, could be labeled an informer. In fact, that’s already begun to happen over there. And it’s no secret, shall we say, that if you’re labeled an informer you could wind up in a ditch.
CT: The very case that has precipitated these subpoenas was about the disappearance and murder of somebody who was alleged to have been an informer. And it’s astounding that the Department of Justice can argue with a straight face that there’s no danger posed to Anthony McIntyre by the fact that people are calling him an informer over this.
He’s not an informer. This project was not informing. They attempted to smear Brendan Hughes’ name with the same thing. But using that kind of language, in that context and in that environment is extremely dangerous not only for Anthony and our own family but for all the participants in this project on both the Republican and Loyalists sides. Very dangerous times and very frightening. Very frightening.
SB: Unfortunately, what we know from our experience is, when people come to shoot people they’re not overly choosy, then if Anthony’s in danger, you and your American-citizen children are in danger as well. That is an important message. You’re as entitled to life as anyone else.
CT: Like I said, it’s very frightening. I said in my affidavit about the worry of something coming through the window, it could be my kids; my daughter’s eleven, my son’s six…they’re very little…they’re completely innocent of everything. It’s just a terrible fear to live with on a daily basis.
SB: And because of that, you’re uniquely able to tell that story to Senators, Members of Congress, and it’s one of the things you’ve been doing this past week. Tell us about some of the people you’ve been meeting with and some of the reception you’ve been getting.
CT: Well, I started out this week DC. The Irish-American Unity Conference was very helpful with that, Peter Kissel in DC. And I’ve met a number of offices, Congressional offices, I met with Richard Neal’s office from Massachusetts; they’re very worried and concerned about this case. I met with Senator Lugar’s, who was part of the Extradition Treaty, where the UK Secretary of State at the time had said they weren’t going to be seeking anybody for pre-1998 crimes. It’s interesting now, Obama meeting Cameron at the same time wants to roll back this Extradition Treaty so I think Irish-Americans need to be vigilant on this discussion as it’s going between the US and UK and protect that part of the Extradition Treaty that they worked so hard on. I also met with Ed Royce’s office, he’s on the House Foreign Affairs Committee, and Senator Boxer’s office as well. And I have some future meetings this week in New York and when I travel to Boston.
SB: Can you tell us about any of those meetings?
CT: Well, I’ll be meeting with Schumer’s office…
SB: Senator Schumer, who’s also the third ranking member of the Senate Judiciary Committee, so the Justice Department would have to pay some attention to him.
CT: Yes, I am very much looking forward to that meeting. And I will be meeting with Senator Kerry’s office in Boston again. Senator Kerry has taken the lead on this issue and we’re very grateful for the vocal work he’s been doing on this, lobbying the Secretary of State. He’s the Chairman of the Foreign Relations Committee and alot of people are looking to him for the lead on this issue.
SB: And I believe that the Ancient Order of Hibernians was just hosting you in Philadelphia.
CT: They did. They adopted me as well! Very wonderful people, down-to-Earth. I did a speaking engagement with them at their Port Richmond chapter. I found Philadelphia a very charming city.
SB: And of course we should say that the Ancient Order of Hibernians, and The Brehon Law Society and the Irish-American Unity Conference have formed an alliance; really tremendous energy and support and pressure and publicity. I think it’s fair to say that we’ve come as far as we’ve come…has been in large part because of them.
CT: Oh, absolutely! This issue re-awakened them and I wouldn’t be sitting here without their help; the lobbying that they’ve been doing, the organising they’ve been doing. They “get” what’s so important about this issue not only in relation to Ireland and the peace process but in terms of American politics as well.
This is very much an American issue as well as an Irish issue. Not because of my involvement as an American citizen but because of the implications that this has for American foreign policy. I’ve said before numerous times, there are Oral Histories of Iraq war veterans being collected right now at universities around America and the US Attorney’s argument that there’s no such thing as academic protection, the First Amendment doesn’t apply, source protection doesn’t apply, means that these soldiers, these veterans, who need to give their Oral Histories so that we have this for the future, are at risk if there’s ever any desire to create prosecutions about that, they’re not protected, they’re not confidential interviews. This is one of the reasons why people are so concerned that are outside of the Irish community as well.
There’s a lot of implications, not just alone for that example of Oral History, but politically sensitive papers, such as the Decommissioning Papers, which are held in the same library at Boston College, they’re under a forty year embargo which is now worthless if the US Attorney’s argument prevails in court.
SB: And speaking of court, where are we in the court?
CT: We are in court April 4th and that is in the First Circuit Court of Appeals.
SB: That’s an appeal, right?
CT: Yes, that’s an appeal. We’re now into the appeal process. Boston College has reversed their position of not appealing and they have filed a separate appeal which will be heard in June. However, theirs is not appealing everything; it’s protecting some of the archive not all of it. We’re still very disappointed in Boston College.
SB: Could you just give our audience, who may not be following it quite as thoroughly as we are, a District Court Judge ordered that the interviews be turned over to the Justice Department for forwarding to the British government but your lawyers intervened, took it to the Court of Appeals and now we’re talking about a hearing in the Court of Appeals and, what’s really exciting, is that the American Civil Liberties Union has now intervened.
CT: Yes, they did a fantastic brief that really shows you how good a powerful lawyer can be. They have taken this on on the civil liberties aspect of it. Their arguments in terms of the Irish politics of it were a hundred percent spot on. They’re concerned about privacy issues as well as the fact that this case, again with the way the US Attorney is arguing it, means that a foreign government can come in and actually over-ride legal protections that are every American’s right. Well, they don’t apply if a foreign government wants material or wants to pursue their own criminal investigations, the US Attorney will say: “Oh well, it doesn’t matter if this law is what protects American citizens normally, we’ve got to do what the foreign government says because of this Mutual Legal Assistance Treaty.” And the ACLU is very strongly against that which is great.
SB: What’s the schedule now? I know that you have a schedule for briefs and I believe there’s going to be an actual oral argument…Tell us what’s going to happen with that.
CT: I’ve very much a layman’s understanding of this so I may not have the correct answer but I do know is that that April 4th hearing is going to be going to oral arguments. What the briefing schedule is around that …I’m not sure…get Eamonn on the show and have him answer. (Laughs)
SB: I do know that the government just submitted a brief, and I’m not a lawyer, but I couldn’t help but be struck when I read it because didn’t address any of the issues, like the ACLU talks about, it was just an attempt to tell the court you really don’t have any right to even consider this.
CT: Yeah, their brief was very interesting. That was just submitted actually, when I was in DC I was reading it before I was going into my meetings, and a couple things jumped out at me on that: Number One, their main argument seemed to be: “Well, the first Judge said we were right so we’re right! And that’s enough for us!”
The other thing that struck me, and this points again to why I’m so angry and disappointed with Boston College’s handling of this. Throughout their brief, literally on every page, they (the US Attorney) were making the point that Boston College did not appeal the first ruling. So they’re using Boston College’s rolling over on this issue as justification for why their side of things should prevail and I think that’s just absolutely shameful (for Boston College).
SB: Carrie, we don’t have much more time with you, two quick things: you’re going to Boston, what’s planned for Boston?
CT: Senator Kerry’s office. I’m going to be catching up on what’s been being done and where things are at and hopefully I’ll have very good news come out of that but that’s the optimist in me rather than the realist!
SB: And suppose people want to get in touch? Especially people in Boston who might have suggestions, or meetings you can do, people you can talk to?
CT: Yes, we have a Facebook page (and) a Twitter account. (Joking aside to SB: Yeah. We’re very modern. Laughs.) If you go to: bostoncollegesubpoena.wordpress.com you’ll find the links to our Facebook account and our Twitter account. Sign up there. You can message us via Facebook and you can keep up-to-date on all the latest news about the case.
SB: So again, give people that website. People are listening in Boston, people are listening throughout the Tri-State area, people are even listening in Ireland, so someone might say, “Oh, I know somebody in Boston she should talk to.”
SB: Carrie, thank you very much it’s a pleasure to have you in the studio, it’s good to see you on this side of the Atlantic, we’re often talking to you by phone, but it’s actually good to see you in person and Good Luck and keep up the good work.
CT: Thank you, Sandy and thanks for all the support here.
Carrie McIntyre, the wife of author and former Irish Republican Army member Dr. Anthony McIntyre, will speak about her husband’s controversial Belfast Oral History Project on Thursday, March 15, at 7 p.m., the Ancient Order of Hibernians Division 87, 2171 Wakeling St.
The program is free and open to the public.
From 2001 to ’06, McIntyre and Irish journalist Ed Moloney conducted interviews with many former Irish Republican and British Unionist paramilitaries who were involved in armed conflict in Northern Ireland during 1970s, ’80s and ’90s. The conflict, known as The Troubles, ended in 1998 with the Good Friday Agreement.
McIntyre and Moloney collaborated with Boston College on the project. The recorded interviews were archived at BC’s Burns Library. McIntyre and Moloney assured wary interview subjects that their individual tapes would be made public only upon their deaths.
Last year, authorities in Northern Ireland, seeking to investigate unsolved crimes related to the conflict, requested that the U.S. government obtain the tapes from Boston College and surrender them under the terms of the Mutual Legal Assistance Treaty between the U.S. and Great Britain, of which Northern Ireland is a constituent nation.
The U.S. Justice Department has subpoenaed BC for the interviews. The college has petitioned federal courts to block the subpoena. Moloney and McIntyre have filed suit to intervene in the case as individuals. BC has been permitted to withhold the tapes pending appeals.
McIntyre and Moloney have argued that releasing the tapes to Northern Irish authorities would jeopardize the fragile peace there and contradict the terms of the Good Friday Agreement. Releasing the tapes also could jeopardize future U.S. academic research into controversial political subjects, they have argued. ••
O’Flaherty writes Clinton on BC case
NEWS & VIEWS Irish Echo
MARCH 14TH, 2012
Massachusetts State Representative Eugene O’Flaherty has written Secretary of State Hillary Rodham Clinton requesting her intervention in the Boston College archives case.
“I write to request your intervention in a matter that threatens the work done by so many to maintain a fragile peace in the North of Ireland through the Good Friday Agreement,” O’Flaherty wrote Clinton.
“I know personally how well the region is doing after having returned from a fact-finding visit recently with colleagues of mine in the Massachusetts Legislature. I write with concern that much of the progress I witnessed in ventures between the communities will be threatened with this court action in which the United Kingdom is subpoenaing oral history records from the ‘Belfast Project’ collected by researchers at Boston College University,” O’Flaherty added.
The rationale for this legal effort is not consistent with earlier representations made by those negotiating in good faith that that the treaty between the United States and the United Kingdom would not be used in connection with acts allegedly committed prior to the Good Friday Agreement.
“I question the legal justification presented by Her Majesty’s government given the enormous goodwill that created such an historic agreement.
Given the strategic significance of stability in Northern Ireland, it is in the best interest of the United States government to not cooperate with the strict reading of the Treaty and allow for a waiver given the serious possibility of the agreement being undermined.
I respectfully request that you involve yourself personally and urge our Attorney General to withhold American cooperation on these British requests and to state that we will oppose any effort to use the Treaty for political purposes when it will undermine the peace in Northern Ireland,” O’Flaherty concluded.
O’Flaherty’s letter follows similar communications to Clinton From Senator John Kerry and Congressman Joe Crowley.
BC subpoenas are legally dumb and dumber
EDITORIAL BY ED MOLONEY Irish Echo
MARCH 14TH, 2012
Slowly, but inexorably, the penny is dropping, both here in the United States as well as back in Ireland.
The Boston College subpoenas seeking access to oral history interviews with former IRA activists on behalf of the police in Northern Ireland are about the dumbest things that have ever happened in the long relationship between the United States, Britain and Ireland.
The difficulty is not how to describe why they are so dumb, but in counting the ways in which they are so dumb.
First of all, this is not the way in which to heal a conflict like that in the North of Ireland.
Over 3,000 people died and tens of thousands were scarred, physically and mentally, by a war that was undoubtedly one of the longest and most violent, if not the most violent in Irish history.
But the war has now ended, peace reigns and there is a desperate need for dealing with the past in a way that solidifies that peace and ensures an untroubled future.
The British have chosen a way that does the opposite. The Boston College subpoenas symbolize an approach to this issue based on revenge and the view that alleged combatants in that war should be dragged before the courts, convicted and jailed.
To do this, they created a special police unit, the Historical Enquiries Team (HET), put it under the control of the Police Service of Northern Ireland (PSNI) and authorized it to dig up evidence to support criminal prosecutions.
The emphasis in this approach is on retribution and punishment. Yet anyone who has had dealings with victims of the violence in Northern Ireland knows full well that most just want to know what happened to their loved ones. Who killed their father, brother, son, mother, sister, wife? Why did they do it, and did their loved one suffer?
There are exceptions of course but most I have had dealings with seek the truth, not revenge, and I strongly suspect they are in the majority.
What they want most of all is a proper truth recovery process. South Africa provided one model, a truth and reconciliation commission in which perpetrators were offered an amnesty in return for full candor about their deeds.
They could have chosen the British version and opted to scratch away at barely closed wounds but did not, knowing that to do so would mean that South Africa could never put the past behind it, that the past would continue to haunt the present and the future with catastrophic consequences for all South Africans.
The second way in which the Boston College subpoenas are dumb is because they are so politically stupid. Ostensibly, the subpoenas are in pursuit of the perpetrators of the murder of Jean McConville, but anyone who is familiar with the case knows that it is really about getting Gerry Adams who is alleged to have given the order to “disappear” Mrs McConville, an accused spy for the British Army.
Whatever one may think of Gerry Adams and his misguided efforts to deny any past association with the IRA, the reality is that Northern Ireland would not now be enjoying peace without his efforts.
He may have been less than straightforward with his IRA comrades; he may even have been duplicitous and furtive in his dealings with them, or have exaggerated the political benefits of the Good Friday Agreement, but the stark truth is that he did bring this awful war, this endless bloodshed, to an end. I doubt that anyone else could have.
Yet the logic of the Boston College subpoenas is to drag him before the criminal or civil courts and stain him with the McConville murder. So the architect of a peace process centered on compromise ends his political life arraigned or sued for murder courtesy of the same government with whom he compromised. And this is supposed to cement the peace in Northern Ireland?
What message does that send to IRA dissidents who have long accused Adams and his colleagues of naivety in their dealings with the British? What they will say is this: “You trusted the Brits, Gerry. You accepted their deal and their terms and now look what they are doing to you? Once they had you where they wanted you to be, they stuck the knife into you.”
And this is supposed to strengthen the peace in Northern Ireland? If this is the logic behind the Boston College subpoenas then truly the lunatics are now running the asylum.
There will be those, of course, who will say that if Gerry Adams did order Jean McConville’s “disappearance” then he deserves to be prosecuted. In a normal society, one ruled by a normal government, that would be a difficult argument to answer. But Northern Ireland is not, even with the peace process, a normal society and nowhere is this more evident than in the administration of justice.
The plain, undeniable fact is that there are double standards in the way justice is doled out in Northern Ireland.
As myself and researcher Anthony McIntyre were battling in the Boston courts against the PSNI subpoenas last fall, the British prime minister, David Cameron, summoned the family of slain Belfast attorney, Patrick Finucane to Downing Street. Finucane had been shot dead by loyalist gunmen in 1989 but it is now widely accepted that British intelligence and the police in Northern Ireland, the Royal Ulster Constabulary (RUC), had foreknowledge of the murder plot and allowed it to happen. Finucane was a legal thorn in their flesh and what better way to remove it than by way of loyalist bullets?
Such was the concern about this level of collusion in an attorney’s murder, not least here in the United States, that Cameron’s predecessor, Tony Blair, was obliged to announce that there would be a public inquiry into Pat Finucane’s slaying and we would all get to know just what part the RUC and British spooks had played in this dirty deed.
But Cameron’s summoning of the Finucane family was not to tell them of a date for the beginning of this inquiry, but to inform them that he was withdrawing Tony Blair’s promise. There would be no inquiry into Finucane’s death.
So those who say that the PSNI has a right to rummage through Boston College’s files for the names of the killers of Jean McConville must also justify the denial of that same right to Pat Finucane’s family to scour the files of MI5 and the RUC Special Branch for the names of those who colluded with his killers?
Pat Finucane was a high profile victim of the Troubles in Northern Ireland, but not so Patrick McCullough. Who is Patrick McCullough, I can almost hear the reader ask? Well, he was a 17-year-old Catholic boy, just starting his first job in life, when he was shot dead in a loyalist drive-by shooting near his North Belfast home.
Patrick died in June 1972, six months before Jean McConville was “disappeared” by the IRA. No-one has ever been held accountable for his killing and, unlike Jean McConville, there has been next to no publicity about his killing. He was his parents’ first-born and most loved child, the first of fifteen children when his life was suddenly and brutally ended. His mother and father never recovered from his death, and their loss was every bit as tragic and wrong as that suffered by Jean McConville’s family.
I learned about Patrick McCullough’s death from a poignant letter his younger brother, Fr. James McCullough, a member of the missionary Kiltegan Fathers, wrote recently to the Irish Times newspaper seeking an inquiry into official indifference towards his brother’s killing. I contacted the priest to talk about his experience.
When his brother was killed, the police never once visited the family home to tell them what was happening in the investigation. The only visit the family had from the security forces was shortly after the funeral when their home was raided by the British army. Fr. McCullough suspects that their purpose was to plant weapons in the home so as to justify his brother’s murder.
When the British government set up the Historical Enquiries Team, Fr. McCullough wrote to the then PSNI Chef Constable, Sir Hugh Orde. His letter was forwarded to the HET which wrote to him saying they would be in touch. That was in 2006. Since then, neither Fr. McCullough nor any of his family have heard a word from the HET or the PSNI. He described his treatment at the hands of the PSNI and the HET as “abysmal.”
The killers of Patrick McCullough are well known. An investigation in 2003 by the Belfast newspaper, the Irish News, discovered their identity while noting that no-one had ever been arrested or charged. Recently, the reporter who wrote the story confirmed to me that neither the HET, nor the PSNI, had ever contacted her to discover their names. There have been no subpoenas for Patrick McCullough.
The silence from the police lasted until Fr. McCullough’s letter appeared in the Irish Times. Then, suddenly, he was phoned by an HET investigator who offered a meeting. When Fr. McCullough complained about the indifference shown by the RUC towards his brother, the HET man replied, according to Fr. McCullough: “……that he had never experienced sectarianism in the RUC or PSNI.”
On the HET’s promotional video, the unit’s commander, former Scotland Yard detective Dave Cox, addressed the issue of how the HET dealt with allegations of police collusion in murders in this way: “Most times we are able to actually answer and dispel those worries.”
In other words, it never really happened.
This is the last and most compelling reason why the Boston College subpoenas are not only dumb, but morally wrong. The HET is not a fit and proper body to deal with Northern Ireland’s past because it operates double standards. And Attorney General Eric Holder and the Department of Justice should not be helping these people do their dirty work in Boston.
It is up to Irish America to make sure Holder gets that message.
Boston College: The Irish News & Sunday Life Revisited Ed Moloney
March 13, 2012
The US Attorney, Carmen Ortiz has just filed her reply to the briefs presented by our lawyers, Eamonn Dornan and Jim Cotter as well as the brief prepared by the American Civil Liberties Union of Massachusetts and on first reading one thing jumped out at me: the US government is finally admitting that one crucial justification for the original subpoenas against Boston College back in May, 2011 was false.
This was the claim that way back in February 2010, Sunday Life reporter Ciaran Barnes had been able to listen to Dolours Price’s interview with Boston College researcher, Anthony McIntyre in which she allegedly admitted her role in the disappearance of Jean McConville and three other people killed by the IRA in 1972.
This was a crucial claim because if true it meant that someone at Boston College, either myself or Anthony McIntyre or Bob O’Neill, the librarian on the BC campus, must have breached the confidentiality pledge given to Dolours Price and therefore we could no longer claim that pledge as protection against the subpoena.
This is what the affidavit prepared by Ortiz’s office back in July 2011 had to say about this:
“Ms. Price’s interviews by Boston College were the subject of news reports published in Northern Ireland in 2010, in which Ms. Price admitted her involvement in the murder and“disappearances” of at least four persons whom the IRA targeted: Jean McConville, Joe Lynskey, Seamus Wright, and Kevin McKee……..Moreover, according to one news report, the reporter was permitted to listen to portions of Ms. Price’s Boston College interviews.” (page 4)
So, according to US Attorney, Dolours Price had admitted all this in her interviews with Boston College and these tapes were then made available to Ciaran Barnes who wrote his report based on them.
As regular readers of this blog will know, we have strenuously denied all of this from the outset and in a series of articles, here, here and here, have attempted to demonstrate that the information in Barnes’ article actually came from a taped interview with Dolours Price made by Allison Morris of the Irish News.
In a deal with the Price family, the Irish News tempered its subsequent report but then Morris passed the tape onto Barnes who exercised no such restraint and compounded all this by dishonestly suggesting that the tape he had listened to came from Boston College. It was, of course, a device to protect Allison Morris and to hide the fact that the deal her editor had cut with the Price family had been betrayed.
We now know, thanks to a piece Morris penned in the Irish News, that the PSNI made no attempt to investigate this matter until June 2011, a month after our exposure of the Morris-Barnes deception. By that time, of course, Morris was able to tell the PSNI that she no longer had the tape in her possession. Quelle surprise!
Nonetheless, the tardy PSNI action was an admission that the basis for the first subpoenas served on Boston College was a lie. What has yet to be explained is why the PSNI did not approach either the Irish News or the Sunday Life back in February 2010 when their articles on Dolours Price were published. Was that just a one-off blunder by the PSNI or part of a pattern of preferential treatment to local newspapers whose political support is vital to the PSNI?
This is what Ms Ortiz has to say about the PSNI’s Keystone Cops act in her recently filed brief:
“……nowhere in the US-UK Mutual Legal Assistance Treaty….does it authorize the court to assess whether the authorities in the U.K. sought interviews of Ms. Price from news reporting sources in that country. Moreover, even if U.K. authorities had made such an inquiry, it is clear from appellants’ own affidavits that the Belfast Project interviews were singular, were possessed only by Boston College, and could not have been obtained from news reporting sources in the U.K.”
The first part of that statement amounts to an implicit admission that the PSNI had fallen down on its job by ignoring the Irish News and Sunday Life reports in February 2010. The second part would have more validity had the PSNI tried way back in February 2010 to obtain Allison Morris’ tape but failed. The truth is that news reporting sources were available to the PSNI but they chose to ignore them.
The US Attorney’s office in Massachusetts has now revised the original account of this episode but, tellingly, failed to explain the major differences between the original claims and what Ms Ortiz’ office now says happened.
Here is the revised version of that episode:
“Price’s interviews with Boston College were revealed in news reports published in Northern Ireland in 2010, in which Price admitted her involvement in the murder and “disappearances” of at least four persons whom the IRA targeted, including Jean McConville. Price also told at least one reporter that she had been interviewed by ‘academics at Boston University.’” (pages 6-7)
Notice the differences: no mention of anyone listening to Boston College’s tapes, merely an acknowledgement, and nothing more than that, that Dolours Price had told the Irish News that she had been interviewed by Boston College and, on one reading, a subtle suggestion that the alleged admissions of involvement in these disappearances were really made in the Irish News and Sunday Life reports. More, much more on this to come and if I was Allison Morris or Ciaran Barnes I would pay especial attention to this.
About the origins of the Boston College subpoenas: The PSNI’s “murder investigation” isn’t a murder investigation. Period, full stop. No police investigator ever cared especially much about Jean McConville’s 1972 murder until 2011. This is an acknowledged fact. Nor is the PSNI now conducting an investigation; rather, it is attempting to borrow someone else’s. This attempt to take archival materials is not police work, and is unlikely to result in successful prosecutions. Don’t take my word for it: Go see what the PSNI’s chief constable said six years ago.
Remember that the ACLU of Massachusetts nailed just this point in their amicus brief:
“The PSNI/RUC’s self-inflicted wound, their sorry record of non-performance over more than 40 years, does not justify an invasion of academic freedom and the likely destruction of much of this valuable historic research. Academic freedom should not pay the price for the constable’s incompetence.”
So how does the government’s novella address the undisputed fact of police indifference and incompetence over the course of forty years? With a solemnly obtuse determination to not notice.
Page 16 (of the PDF file; pg. 4 of the brief):
“The application was prompted by a formal request from the U.K. for legal assistance in a criminal investigation pending in that country, involving kidnaping and murder, among other serious crimes, made pursuant to the US-UK MLAT.”
Or try page 69 (pg. 57 of the brief):
“Finally, nowhere in ACLUM’s argument is there a recognition that a request by a foreign sovereign under a treaty regarding a sensitive and confidential criminal matter is any different than a civil request by a private party in a mundane business matter. ACLUM’s argument, if taken to its logical conclusion, would subject even the most sensitive and urgent law enforcement requests to litigation and delay by persons with a deeply felt, but tangential interest in such a criminal investigation. Under ACLUM’s reading of §3512, criminal defendants in foreign countries, and others who disagree with the foreign policies of the United States, could tie sensitive and urgent international criminal investigations in legal knots.”
A sensitive and confidential criminal matter! The most sensitive and urgent law enforcement requests! Sensitive and urgent international criminal investigations!
That were ignored for forty years. The DOJ has never addressed this point, as far as I can remember. They have always struck the same posture, just as if they were standing right over a still-warm body: Murder! Murder! Urgent!
Stick a pin in this one, because I offer a wager on the future. I think that “nowhere in ACLUM’s argument is there a recognition that a request by a foreign sovereign under a treaty regarding a sensitive and confidential criminal matter is any different than a civil request by a private party” because the PSNI’s request is, in fact, a civil request by a private party hiding behind the mask of the state. My bet is that the archival materials the PSNI gets from Boston College will only end up as evidence in a lawsuit filed by Jean McConville’s family against Gerry Adams.
And I would also bet that everyone involved already knows that. Including the federal government’s lawyers in Boston, who nonetheless go on pretending that they are parties to a quite ordinary (and not-at-all-political) criminal investigation.
Just remember the point, because time will tell. And let us have some accountability when that moment comes.
As I’ve argued before, the DOJ’s view of legal assistance treaties means that we have fewer protections against foreign governments than we do against our own. The new novella from the government again makes this argument explicit, using breathtaking language with all the customary flat affect of the bureaucratic scrivener. Time to rewrite that stupid Fourth Amendment thingie: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but unless the British say so.
In the novella, look at pages 60 and 61 (of the PDF file; pp. 48-49 of the brief). First, the government approvingly notes a decision from another court: “The Eleventh Circuit concluded that district courts should not evaluate MLAT subpoenas under the standards applicable to domestic subpoenas or under the law pertaining to civil requests under 28 U.S.C. §1782.” Then, in a footnote:
“In a similar vein, if modern MLATs incorporated by reference all of the substantive discretion available to review subpoenas under 28 U.S.C. §1782, and required a district court to test a subpoena under the standards set forth in Intel, it would defeat the very purpose of the MLAT. As noted above, the primary aim of these treaties was to limit judicial discretion and related litigation, and to speed compliance with foreign requests in criminal cases.”
Case closed: The United States government argues explicitly that it has acted with the intent of creating a class of subpoenas for which there is no “substantive discretion” for review. The primary aim of federal action was to serve the convenience of foreign governments at the expense of our access to the courts.