Attorney General Holder and the Meaning of Contempt
Michael J. Cummings
National Board IRISH AMERICAN UNITY CONFERENCE
WASHINGTON, D. C.
The obscure ‘Fast & Furious’ investigation of the Justice Department and Attorney General Holder’s actions in response to the probe of Chairman Issa of the Committee of Oversight and Government Reform, has drawn a contempt of Congress vote. Government incompetence, cover-up and deception of Members of Congress now blend with a dose of political pandering. However, an even more obscure matter, a Holder subpoena of records from the Irish Archives of Boston College, may prove to be more revealing of matters contemptible. Fast & Furious may ultimately discredit the competence and credibility of Attorney General Eric Holder. But if Holder honors the British request for interviews stored in Boston College Irish archives there may be political implications for the Obama administration and for the conduct of U.S. foreign policy.
At issue is the misuse of the U.S.-U.K. Mutual Legal Assistance Treaty (MLAT) by Britain and the required consultation between the Department’s of Justice and State before validating the request.
The timing and nature of the Boston College documents requested cast suspicion immediately on a political motivation. Britain wants a recorded interview with dissident Republican Dolours Price allegedly linking Sinn Fein leader Gerry Adams with a killing 40 years previous and in the midst of the killing spree of the British Army.
Not a terrorist inquiry. Not a drug laundering inquiry. Not even an inquiry that could result in a conviction in a court, not even a British court. In short, it had nothing to do with the purposes of the MLAT. But curiously this demand for a sealed subpoena came from the British months before Mr. Adams was running for the Irish Dail.
London’s motivation for this data is unclear. Many believe the “deep state” security services MI-5 & 6 are behind the request. Unofficial opposition to the Irish peace process from those services has been at work since the 1998 pact was signed. This phenomena was noted by Wall Street Journaleditor Bret Stephens describing the opposition of Egypt’s corrupt institutions and Egyptian Generals despite the removal of the Mubarak family. Attempts at peace and reform in N.I. face the same forces. For example:
The Historical Enquiries Team reviewing nearly 900 unsolved killings, mostly Catholic, has now been ‘packed’ with retired officers who can ‘clean up’ and ‘expedite’ the review of England’s dirty war.
Britain refuses to cooperate and provide records (ironic isn’t it) to Ireland for the largest massacre of the conflict, the Dublin-Monaghan bombings; almost all those identified as involved were either members of the Ulster Defense Regiment of the British Army or working under the direction of British Army handlers.
Perhaps the most hypocritical development was Prime Minister Cameron’s unilateral dismissal of the Agreement’s provision to provide a public inquiry into the murder of attorney Patrick Finucane; a murder planned by security and vigilante forces.
Could not this be the essence of contempt? Her Majesty’s Government expects the U.S. to engage in political smear and turn a blind eye to their disemboweling the Belfast Agreement while asking America’s chief law enforcement officer to ignore their murder of an officer of the court.
There is a statutory requirement that the Department’s of Justice and State consult on requests to determine if they violate American values, supports American policies, and is a bona fide criminal investigation. The contents of this consultation are apparently secret, even to Members of Congress.
No one knows, for example, if State questioned the wisdom of sharing any data with the much politicized police force whose murdering partnerships with loyalist thugs were the subject of the Stevens report; a study so scandalous only a short summary could be published. One can only hope that State compared PSNI use of loyalist killers to Syria’s Assad use of Shabihas. Is this happening today? We hope not. But was it happening 40, 30, 20 and even 10 years ago? Most certainly!!
Senator Ben Cardin (D-MD) Co-Chair of the Committee for Security and Cooperation in Europe (the Helsinki Commission) likened the murder of Finucane to the death by imprisonment of Russian lawyer Sergei Magnitsky. Both lawyers called the governments to account for their misdeeds and both were targeted for death. The Department of State, in its zeal to get along with Russia, is opposing the Senator’s Rule of Law Accountability Act. Is it likely that State, the last foothold of British in Washington, will oppose Holder’s subpoenas over the mere murder of another lawyer?
The Chairman of Senate Foreign Relations, Senator John Kerry (D-MA), has vigorously opposed enforcement of the subpoenas in conversations with Eric Holder, with British officials, in writing to Secretary of State Clinton and in op-ed commentary. He depicts the 2006 debate on the adoption of the MLAT and Extradition treaties as replete with concerns by many of his colleagues that the adoption of the 1998 Belfast Agreement meant Britain was to focus on the future and not the past. Not surprisingly, with so much blood on their hands, British representations at the time seemed in agreement. Our Senate must be held in such low esteem or high contempt that five years after that debate, the British are fishing around in our universities for anything on a 1972 incident.
Only a court case has prevented these records from being turned over to the British. But if they are there is a case of contempt to answer alright. But which one? The U.K. contempt for the U. S. Senate? The Departments of State’s and Justice’s contempt for the rule of law and human rights? Or the Obama administration contempt for the American values and commitment to the Irish peace process and the 1998 Agreement?
Omagh inquiry ‘would expose security faults’ The News Letter
Published on Tuesday 19 June 2012
A PUBLIC inquiry into the Omagh bombing would uncover “unnerving secrets” of security force failings, one of those bereaved by the atrocity said.
Michael Gallagher and other Omagh victims presented Northern Ireland Secretary of State Owen Paterson with a specially commissioned report claiming the atrocity could have been prevented.
The families campaigning for a cross-border inquiry will now seek meetings with the Chief Constable Matt Baggott and Justice Minister David Ford to brief them on the consultants’ report into the case.
Mr Gallagher said both the Republic and British governments would continue to face calls for a public inquiry and any refusal to respond positively to the new evidence would be brought to the courts.
Twenty-nine people, including a woman pregnant with twins, were murdered in the Real IRA atrocity in 1998.
Mr Gallagher said: “I think that the Government are going to have some difficulty with granting a public inquiry into Omagh because it will unearth some very unnerving secrets.
“But we feel, and we told the Secretary of State, that there will be uncomfortable truths for both the British and Irish governments.
“But that is nothing to what the families have had to suffer.
“We feel that Omagh should come to an end, I don’t take any comfort in standing here today in criticising the Government.
“I’d rather get on with our lives but the Government are the people that’s holding this process up.”
His comments came after a meeting with the Secretary of State at Hillsborough Castle.
The families said their report brought together all available evidence on the case and showed authorities on both sides of the border could have prevented the car bombing.
No one has been successfully criminally convicted of the attack in the Co Tyrone town.
Mr Gallagher, whose son Aidan was killed in the bombing, said families had yet to receive a response to requests for a meeting with Taoiseach Enda Kenny.
And while the content of their report cannot be made public for legal reasons, Mr Gallagher said the findings pointed to state failings over the attack. He described the meeting with the Secretary of State as constructive, but said Mr Paterson noted that the bombing was still under investigation.
Mr Gallagher said the existence of live investigations had not prevented the setting up of the Leveson inquiry into press standards.
He said: “We have waited 14 years. There are no reasons for this not happening.”
Mr Gallagher said the Secretary of State promised to examine the report.
And Christopher Stanley of the London-based human rights group British Irish Rights Watch, which is supporting the Omagh families, said his organisation would be pressing for a swift response from the Government.
“I think what we want at this point is a timescale from the Secretary of State, the ball is in his court. We can’t have this dragging on,” said Mr Stanley.
Secret Troubles memo could prompt fresh legal action Minutes of 1972 meeting amount to ‘policy of impunity’ for aggression by British soldiers, say human rights groups
Owen Bowcott guardian.co.uk, Monday 18 June 2012
A secret memo that urged the army to shed its inhibitions in the “war” against the IRA and be “suitably indemnified” could prompt a fresh wave of legal action, lawyers in Northern Ireland have said.
The expression of enthusiasm for military action with apparent disregard for any legal consequences, at the height of the Troubles in July 1972, has surprised human rights groups, who are still pursuing justice for victims.
Released through the public records office in Belfast, the minutes record a meeting at Stormont Castle chaired by Willie Whitelaw, then Northern Ireland secretary. Also in attendance were the GOC (the most senior army officer in the province), Paul Channon MP, the deputy chief constable and senior civil servants.
The document, marked “secret”, has only recently come to the attention of campaign groups and lawyers who, in the wake of the inquiry into the Bloody Sunday massacre in Derry, have focused on re-examining killings by the security forces.
It was a pivotal moment in the Troubles. Gerry Adams, Martin McGuinness and other republican leaders had just returned from abortive face-to-face talks with Whitelaw at Channon’s home in Chelsea. That weekend fighting had broken out between troops and the IRA over the allocation of houses in west Belfast.
Dated Monday 10 July 1972, the three-page paper lists “conclusions” of a meeting immediately following the breakdown of the Provisional IRA’s two-week-long truce.
It notes that Whitelaw would reveal the existence of the clandestine talks, “put the blame for the ending of the ‘truce’ fairly and squarely on the Provisionals who must now take the consequences”, and “announce the government’s intention to carry on the war with the IRA with the utmost vigour”.
It added: “The GOC would see UDA [the loyalist paramilitary Ulster Defence Association] leaders and impress upon them that while their efforts as vigilantes in their own areas were acceptable, their presence in any riot or shooting situation could not be tolerated.”
In terms of military response, it ordered that: “The army should not be inhibited in its campaign by the threat of court proceedings and should therefore be suitably indemnified.”
Mark Thompson, director of Relatives for Justice, which campaigns on behalf of victims, said: “The discovery of this document indemnifying British soldiers from the threat of court proceedings whilst they took their ‘war’ to nationalist communities with the ‘utmost vigour’ is the first official documented evidence of a policy amounting to impunity.
“It is a clear amnesty being put in place for what would later occur, the inevitable loss of life. In 1972 the British army killed 79 people. Not one soldier was held to account for these killings.
“This document provides an important insight into the mindset of the British government and those directly involved in and responsible for ‘security’ and its policy development – a policy that went on to have disastrous consequences for our entire community. Many observers will view this document as sectarian in its outlook and strategic approach.
“Despite their involvement in sectarian murders, the UDA was not [at that time] a proscribed organisation. They were permitted to patrol areas and exist alongside the RUC and British army at a time when intelligence would have clearly shown the UDA to be involved in sectarian murders.”
That Sunday in July 1972, in fact, five people had been shot dead by republican paramilitaries, and six Catholics, including a priest, were killed by the British army.
Kevin Winters, a Belfast solicitor who represents relatives seeking justice, said: “It will lead to a request for the police’s historical enquiries team to re-examine all the army killings that they have looked at to date.
“The consequences of the document should permeate a lot of their investigations. It potentially strengthens grounds for fresh inquests. It could generate a huge amount of legal proceedings. If that was the mindset … it would be grounds for a series of [out of time] civil actions for unlawful killings.”
Paul O’Connor, of the Pat Finucane Centre in Derry, which also examines files from the period, said: “This document tells us something about the culture [at the time]. We deal with cases of people who were being kidnapped at UDA checkpoints and who were tortured and murdered. That ties in with allowing UDA members to join the Ulster Defence Regiment. It was the worst months of the Troubles.”
U.S. Official Behind Boston College Subpoenas Shielded Bush Torture Team
Ed Moloney The Broken Elbow
March 2011 was a busy month at the Department of Justice’s International Affairs Office (IAO) in Washington D.C. The British Home Office had just started the process of serving subpoenas on Boston College’s Belfast Project archive and its officials had begun liaising with the IAO’s staff. The subpoenas were routine matters covered by the Mutual Legal Assistance Treaty between the US and the UK and it is unlikely that at this point they were causing the office’s director, Mary Ellen Warlow any grounds for anxiety or concern.
Mary Ellen Warlow, the woman behind the Boston College subpoenas
The British had requested the subpoenas be kept sealed, i.e. secret, the US had agreed and if Boston College co-operated then the requested material – interviews with the late IRA Belfast leader Brendan Hughes and former leading IRA activist Dolours Price – could be on the desks of the Police Service of Northern Ireland (PSNI) within weeks and before anyone knew the subpoenas even existed.
The UK was one of the few enthusiastic allies of the US in its never-ending war against militant Islam and as a sign of his readiness to work with the Americans, British prime minister Tony Blair had agreed changes in the extradition treaty with America that enormously eased the process of transferring suspects from Britain to the US. The changes, which meant UK citizens could be extradited on the minimum of evidence, had outraged liberal opinion in Britain so the request from the Police Service of Northern Ireland (PSNI) offered a chance for an American quid pro quo, an opportunity to demonstrate gratitude for Blair and Britain’s generous co-operation.
Not only that but the alleged offence at the heart of the British request was regarded in some circles as a dreadful war crime. Jean McConville, a widowed mother-of-ten had been abducted, taken across the Irish border and killed by the Irish Republican Army at the outset of its lengthy war to eject Britain from Northern Ireland, her body buried in an unknown grave and her death kept a closely guarded secret, even from her family. She had been caught spying for the British Army in a public housing project in Belfast regarded as an IRA redoubt and the IRA had exacted punishment as only it could.
The ‘disappearing’ of some of its victims during the Troubles was a dark stain on the IRA’s reputation and when Mary Ellen Warlow reviewed the subpoena request it would have been surprising had she not concluded that no-one would take up cudgels for the IRA over the killing of Jean McConville. It would be an open and shut case: a terrorist group involved in a heinous crime.
It was very possibly because of these considerations that Mary Ellen Warlow failed to conduct the due diligence such requests normally warrant. Had she done so, she would have discovered that the PSNI had ample opportunity to collect the evidence they allegedly needed in Belfast and had no reason to seek it on the campus of Boston College, but had sat on their hands for over a year and done nothing.
She would also have discovered that the principal subject of the subpoenas, Dolours Price – who lives in Dublin, outside the jurisdiction of the PSNI – had actually been in the custody of a court in Northern Ireland in May 2010, could have been arrested by the PSNI and questioned about alleged admissions she had made in a newspaper interview regarding the disappearance of Jean McConville – but that the PSNI had let this opportunity pass by.
She would also have discovered that the PSNI had made no effort at all to establish the truth of a key justification for the subpoenas – a claim by a Belfast reporter that he had listened to Price’s interview with Boston College and that in it she had admitted to abducting McConville.
And she would also have discovered that the same police force seeking to bring former IRA members before the courts in Belfast is, along with its political masters in London, determinedly refusing to pursue policemen, soldiers and intelligence officials who committed, authorised, connived at and turned a blind eye to multiple murders in Ireland.
And finally, if she and her staffers had dug a little deeper, they would have discovered that the PSNI had another possible motive in seeking the subpoenas that helped to explain why, after some forty years of non-investigation of the McConville ‘disappearance’, police detectives in Belfast had suddenly become energised.
The man who was widely suspected of ordering McConville’s disappearance was none other than Gerry Adams, the IRA’s leading force during the Troubles and the chief architect of the peace process which, inter alia, had led to the effective disbandment of the PSNI’s predecessor, the overwhelmingly Unionist and Protestant-dominated Royal Ulster Constabulary.
There was reason to believe, in the form of public statements by former senior RUC detectives, that revenge against Adams for destroying the police force they loved and cherished – and which they saw as their bulwark against Irish unity – was a major factor in the legal move. In short, had Mary Ellen Warlow done her homework, she would have discovered that there were reasons for thinking the subpoenas were flawed and even politically-motivated – and that by pursuing the subpoenas the US might be party to an action that could have seriously negative consequences for the peace process in Northern Ireland, a process the US had helped bring to life. But she didn’t.
The routine nature of the subpoenas, the gravity of the alleged offence and the distinct possibility that Boston College would play ball may well have combined to encourage her to regard the PSNI request as an easy hit out of the park. But there was something else on the desk of Mary Ellen Warlow in March 2011, something that put the Boston College subpoenas in the ha’penny place, something that merited all her attention and skills. A letter had to be written to rescue six American officials from prosecution for their own war crimes, offences that were the hallmark of the Bush White House during the wars in Iraq and Afghanistan – the torture and killing of detainees held by the US military and CIA. Mary Ellen Warlow would have to write the letter. This was one war crime that mustn’t be pursued; after all there are war crimes and then there are war crimes. Mary Ellen had been called up to play her part.
The story of how she was assigned this sensitive and vital task has its origin in two very separate events. One was the decision by Bush’s successor, Barack Obama not to pursue those responsible for fashioning and implementing the torture policy that had set the Bush White House apart from any other administration. By 2011 the sheen had already worn off Obama’s presidency. His supporters had hoped for great things from Amewrica’s first African-American leader but in a wide range of policies, from reining in Wall Street to repudiating Bush’s odious foreign policy excesses they had tasted only bitter disappointment. In particular, Obama had reneged on his promise to close Guantanamo and to use due process to try alleged Al Qaeda members; instead the notorious Cuban prison camp stayed open and military tribunals were convened to try alleged terrorists. And to cap it all, Obama refused to pursue the architects of torture, the people seen as responsible for dragging America’s name for championing human rights around the globe through the mud.
There were six of them: former Attorney General Alberto Gonzales; Dick Cheney’s chief of staff and legal adviser, David Addington; the Pentagon’s former general counsel, William Haynes; the former undersecretary of defense, Douglas Feith; the former head of the Justice Department’s Office of Legal Counsel, Jay Bybee and one of his former senior officials, John Yoo.
Of the Bush Six, none was regarded as more responsible for the carnival of torture that followed 9/11 and the invasions of Afghanistan and Iraq than John Yoo, a law professor from California who had joined the Bush Department of Justice. Yoo was the author of the so-called Torture Memos, which were written in August 2002 and gave legal cover for the policy implemented at Guantanamo, in Afghanistan, in Iraq and at numberless CIA black sites dotted around the world.
Yoo’s memos were multi-faceted. He first justified the view that presidential power in relation to the so-called war on terrorism was effectively unlimited, at one point going so far as to tell DoJ officials that because of his duty to protect America, the “president’s war-making authority was so broad that he had the constitutional power to order a village to be ‘massacred’”.
Like the British had during their war against the IRA in Northern Ireland, Yoo also argued that prisoner-of-war status did not apply to enemy combatants captured during the conflict in Afghanistan and held at Guantanamo and also to those captured in Iraq. Therefore the Geneva Conventions governing the treatment of prisoners in wartime did not apply and so the US was free to torture them if it was thought necessary.
The consequence of his memos became disturbingly visible in the Spring of 2004 when photos of torture victims at Abu Ghraib prison near Baghdad, once Saddam Hussein’s torture centre, were aired on CBS television. Iraqi detainees, many of whom had been arrested on the most flimsy grounds, had been systematically abused, beaten, tortured and humiliated by US servicemen and CIA employees for months, the scandal coming to light only through the whistle-blowing of one prison guard who was disgusted by what had happened. When the photos, showing naked prisoners being abused by American personnel, became public there was an international outcry but from the Bush White House came a lying denial and a concerted effort to shift responsibility onto the shoulders of the grunts who had obeyed orders to torture and abuse.
Some of the prisoners had been killed by their interrogators. Writing in theNew Yorker magazine, Seymour Hersh described one part of the testimony given by the whistle-blower, Specialist Joseph Darby:
“In November….an Iraqi prisoner under the control of what the Abu Ghraib guards called ‘O.G.A.’, or other government agencies – that is, the CIA and its paramilitary employees – was brought to the unit for questioning. ‘They stressed him out so bad that the man passed away. They put his body in a body bag and packed him in ice for approximately twenty-four hours in the shower….The next day the medics came and put his body on a stretcher, placed a fake IV in his arm and took him away.’ The dead Iraqi was never entered into the prison’s inmate-control system….‘and therefore never had a number’”.
You could even say that the unnamed Iraqi, like Jean McConville, had been disappeared – but by the CIA and the American military machine, not the IRA.
Slowly but surely, the denials of the Bush White House were stripped away and eventually John Yoo’s notorious Torture Memos became public. The pretence that the privates and corporals manning Abu Ghraib had been responsible for the abuse was exposed as a lie and international outrage at the Bush White House grew, and with it the demand that those responsible be brought to justice, if not in America then abroad.
This slideshow requires JavaScript.
And so began the second event which led to Mary Ellen’s letter-writing task.
The precedent for bringing national leaders to book for their crimes was set by the Spanish government’s pursuit of the Chilean dictator, Augusto Pinochet who had led the US-backed coup that overthrew the elected government of Salvador Allende in 1973, killing, disappearing and torturing thousands of leftist supporters in the process. The Spanish authorities filed an international arrest warrant for Pinochet, alleging he was implicated in the death and torture of Spanish citizens in Chile and at one point the former Chilean dictator was arrested and held in Britain. A public relations campaign to free Pinochet led by supporters of former prime minister Margaret Thatcher was launched and the Blair government predictably buckled and released him on medical grounds.
The move to indict the Bush Six began in the Spring of 2009 when once again a Spanish court took the initiative. It ordered a criminal investigation into allegations made by a British barrister, Phillipe Sands, that the six officials had enabled and abetted the torture of five former Spanish prisoners who were tortured at Guantanamo. The charges were filed by Gonzalo Boye, a Chilean-born Spanish lawyer and the judge assigned to the case was Baltasar Garzon, the same judge who initiated the legal proceedings against Pinochet.
The Spanish move was the signal for a major American fightback led by Team Obama. We know what happened and the extent of the pressure applied to Madrid by the Americans thanks to the Wikileaks cables.
The details were reported by the Crooks and Liars blog in December 2010:
“In its first months in office, the Obama administration sought to protect Bush administration officials facing criminal investigation overseas for their involvement in establishing policies the that governed interrogations of detained terrorist suspects. An April 17, 2009, cable sent from the US embassy in Madrid to the State Department—one of the 251,287 cables obtained by WikiLeaks—details how the Obama administration, working with Republicans, leaned on Spain to derail this potential prosecution.
“The previous month, a Spanish human rights group called the Association for the Dignity of Spanish Prisoners had requested that Spain’s National Court indict six former Bush officials for, as the cable describes it, “creating a legal framework that allegedly permitted torture.” The six were former Attorney General Alberto Gonzales; David Addington, former chief of staff and legal adviser to Vice President Dick Cheney; William Haynes, the Pentagon’s former general counsel; Douglas Feith, former undersecretary of defense for policy; Jay Bybee, former head of the Justice Department’s Office of Legal Counsel; and John Yoo, a former official in the Office of Legal Counsel. The human rights group contended that Spain had a duty to open an investigation under the nation’s “universal jurisdiction” law, which permits its legal system to prosecute overseas human rights crimes involving Spanish citizens and residents. Five Guantanamo detainees, the group maintained, fit that criteria.
“Soon after the request was made, the US embassy in Madrid began tracking the matter. On April 1, embassy officials spoke with chief prosecutor Javier Zaragoza, who indicated that he was not pleased to have been handed this case, but he believed that the complaint appeared to be well-documented and he’d have to pursue it. Around that time, the acting deputy chief of the US embassy talked to the chief of staff for Spain’s foreign minister and a senior official in the Spanish Ministry of Justice to convey, as the cable says, “that this was a very serious matter for the USG.” The two Spaniards “expressed their concern at the case but stressed the independence of the Spanish judiciary.”
“Two weeks later, Sen. Judd Gregg (R-N.H.) and the embassy’s charge d’affaires “raised the issue” with another official at the Ministry of Foreign Affairs. The next day, Zaragoza informed the US embassy that the complaint might not be legally sound. He noted he would ask Cándido Conde-Pumpido, Spain’s attorney general, to review whether Spain had jurisdiction.
“On April 15, Sen. Mel Martinez (R-Fla.), who’d recently been chairman of the Republican Party, and the US embassy’s charge d’affaires met with the acting Spanish foreign minister, Angel Lossada. The Americans, according to this cable, “underscored that the prosecutions would not be understood or accepted in the US and would have an enormous impact on the bilateral relationship” between Spain and the United States. Here was a former head of the GOP and a representative of a new Democratic administration (headed by a president who had decried the Bush-Cheney administration’s use of torture) jointly applying pressure on Spain to kill the investigation of the former Bush officials. Lossada replied that the independence of the Spanish judiciary had to be respected, but he added that the government would send a message to the attorney general that it did not favor prosecuting this case.
“The next day, April 16, 2009, Attorney General Conde-Pumpido publicly declared that he would not support the criminal complaint, calling it “fraudulent” and political. If the Bush officials had acted criminally, he said, then a case should be filed in the United States. On April 17, the prosecutors of the National Court filed a report asking that complaint be discontinued. In the April 17 cable, the American embassy in Madrid claimed some credit for Conde-Pumpido’s opposition, noting that “Conde-Pumpido’s public announcement follows outreach to [Government of Spain] officials to raise USG deep concerns on the implications of this case.”
“Still, this did not end the matter. It would still be up to investigating Judge Baltasar Garzón—a world-renowned jurist who had initiated previous prosecutions of war crimes and had publicly said that former President George W. Bush ought to be tried for war crimes—to decide whether to pursue the case against the six former Bush officials. That June—coincidentally or not—the Spanish Parliament passed legislation narrowing the use of “universal jurisdiction.” Still, in September 2009, Judge Garzón pushed ahead with the case.
“The case eventually came to be overseen by another judge who last spring asked the parties behind the complaint to explain why the investigation should continue. Several human rights groups filed a brief urging this judge to keep the case alive, citing the Obama administration’s failure to prosecute the Bush officials.”
Despite the pressure from Team Obama, the Spanish legal authorities would not quite take the final step and dismiss or close down the criminal investigation. When the new Spanish judge wrote to the DoJ in early 2011 asking for information about the six accused men and their part in formulating the torture policy, Mary Ellen Warlow was given the task of putting together the official answer from the US government. The letter she and a subordinate penned to their opposite numbers in Madrid requested the Spanish to drop the investigation and instead hand the case over to her colleagues for further action, a request that was, in the words of the Center for Constitutional Rights, “misleading” and “disingenious”.
The same woman who is seeking interviews from Boston College to sustain charges of “disappearing” Jean McConville against Dolours Price and possibly others, had no qualms telling the Spanish that “there is no basis for the criminal prosecution of John Yoo” and his five co-accused even though they gave the intellectual and legal justification for the CIA’s torture and disappearance of that unnamed Iraqi prisoner at Abu Ghraib – and others – as well as the torture, abuse and degradation of hundreds if not thousands of his countrymen; and no basis even though the Bush Six also gave the intellectual and legal justification for water-boarding detainees at Guantanamo and at secret CIA black sites in Europe and the Middle East, a practice that had prompted the US government of the day to bring war crime charges against Japanese soldiers who had inflicted the same torture on Americans during World War II.
No justification either because two civilian contractors – neither of whom were direct US government employees – had been indicted and convicted of torture in Afghanistan thus demonstrating the US’ determination not to tolerate such abuse. No justification because the CIA is allowed to keep its self-investigations secret, no justification because an internal DoJ investigation cleared John Yoo of criminal behaviour and no justification even though the Senate Armed Forces Committee had, in an April 2009 report, not only indicted the Bush White House for planning to use torture soon after the 9/11 attacks but said it employed torture in an effort to justify the war in Iraqi by “discovering” links between the Saddam Hussein regime and Al Qaeda:
“The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.”
Mary Ellen Warlow’s letter to the Spanish government demonstrated, the Center for Constitutional Rights concluded:
“…that the US is unwilling, not unable, to investigate these crimes for which there is a sufficient factual basis and indeed, an obligation to investigate under, inter alia, the Convention Against Torture. Spain must not, and cannot, defer to a policy decision not to prosecute, and must not transfer a case to the United States that it has been told unequivocally will not be prosecuted.”
As a case study in government hypocrisy the story of the two Mary Ellen Warlow’s takes the breath away. One demands that the crime of disappearing Jean McConville is so terrible that Boston College’s archives must be turned over to a government and police force which shows no willingness to investigate its own crimes so that the perpetrators can be brought to justice. The other indignantly denies the right of other governments to bring American officials to book for torturing, degrading, killing and disappearing Iraqis, Afghanis and assorted Arabs. Welcome to Obama’s America.
In a Mike Nichol’s film, a Texas congressman singlehandedly manipulates money and power to arm the Taliban and force the retreat of Russians from Afghanistan. This despite the fact that US policy had a different objective in mind. The movie was Charlie Wilson’s War. Today in the Department of Justice, the bureaucratic equivalent of such Wilson-like determination may be undermining the peace process in Ireland.
The United Kingdom has used a Mutual Legal Assistance Treaty (MLAT) to ask Ms. Mary Warlow, the Director of International Affairs (Criminal Division) for Attorney General Holder to demand and obtain audio tapes in the Irish archives of Boston College. Ms. Warlow seems poised to deliver the records to the British despite the fact that to do so would seem to contradict the provisions of MLAT and the spirit of the 1998 Belfast Agreement. How is this so?
In 1998, after much US coaxing, the British signed the Irish peace pact. But since then Great Britain has worked “in the long grass” away from probing media to undermine the key the so called ‘justice’ provisions of the Agreement. Those provisions, if honored, would show lawless security forces playing a much larger role in conflict related deaths. The UK concocted a distraction while their cover-up work is underway. This request is the distraction mechanism. By misusing the MLAT and asking the US to subpoena oral history tapes at Boston College, England seeks to have America play in a part in their treachery. It has worked before. In 1976 Congress prohibited arms sales to the Royal Ulster Constabulary, the most murderous and political police force in Europe. The Reagan administration was accustomed to ignoring Congressional embargos.
Ms. Warlow has advised members of Congress and those in opposition to the subpoenas that she has consulted with the Department of State per Article 3 of the MLAT and executed the request with the subpoenas.
In 2005, Ms. Warlow told the US Senate that the MLAT would be used to pursue the flight of serious felons, and would reflect the US international priorities to protect citizens from dangerous and violent suspects.
None of that is involved with this subpoena request. It was initiated by one of 300 pensioned police officers who the British have returned to the ranks to help cover up police corruption and collusion with loyalist murder gangs.
The subpoena is based on a newspaper reference to a killing 40 years ago during the British Army’s attempt to crush the civil rights movement. It is a brazen attempt by police dissidents to smear Sinn Fein leader and member of the Irish Dail, Gerry Adams.
Although the contents of this Justice to State consultation has not been revealed, these are some facts that would be integral to Secretary Clinton’s response.
The human rights violations of the Police Service of Northern Ireland (PSNI) have been documented by the Department, the European Court of Human Rights, Amnesty International and the United Nations.
Since the request seems spurious and not germane to the purposes of MLAT, the cooperation of America’s chief law enforcement could embolden dissidents to the Belfast Agreement.
The same police service that made the request was complicit with loyalist vigilantes in the murder of lawyer Patrick Finucane.
This much was admitted by Prime Minister Cameron. They are also suspected in the murder of lawyer Rosemary Nelson and five democratically elected Sinn Fein officials. Fearing the worst Cameron unilaterally rejected a public inquiry promised in the peace process. Under these circumstances there is no good that can come from cooperating with the PSNI.
The Department of State has a special obligation under Article 18 of the MLAT to advise Justice of the related rights and obligations of the US under the US-UK extradition Treaty and the multi-lateral Irish peace Agreement which the US crafted. Seventeen Members of Congress including the Senate Foreign Relations Chairman John Kerry, have expressed to Clinton their opposition to these subpoenas, their fears for their impact on the Irish peace process and misrepresentations made by the British at Treaty hearings.
So why hasn’t Justice stopped enforcement of the subpoenas or the British withdrawn the request?
Some have surmised that this first time use of the MLAT was rubberstamped in an act of ignorance or incompetence. It is more likely that British arrogance is the driving force here. They are determined to undo the Belfast treaty brick by brick and deal with Ireland as they wish. If they can smear an Irish politician here and there so much the better. And to do this they may have found a useful accomplice.
The persistence of Director Warlow may have more to do with Attorney General Holder’s management style and broad delegation of authority.
If the British make a shambles of the Belfast Agreement and violence returns to the streets of the North, scholars may one day look back to this sordid Boston College subpoena episode and conclude the fragile peace was the victim of “Warlow’s War”.
Echoes of Erin: Irish American Unity Conference President interviewed about Boston College subpoena case
Echoes of Erin (Program 1264)
WEDO Radio 810 AM
McKeesport, PA USA
Sunday 10 June 2012
Host Diane Byrnes (DB) interviews via telephone Thomas Burke, (Mr.B) President of the Irish American Unity Conference about the Boston College Oral History archive.
(Interview begins 1:30 PM EST)
Diane Byrnes (DB): Ladies and gentlemen: it gives me great honour to welcome to Echoes of Erin Mr. Thomas Burke. He is an attorney of law by profession and he is the National President of the Irish American Unity Conference.
And we’re talking to Mr. Burke today about the Boston College Oral History archives. And this is a project that was commissioned by Boston College between 2001 and 2006. Its objective was to enhance awareness of The Troubles in Northern Ireland.
Republican and Loyalist activists gave insight into this history. They were promised that all material archived would be securely deposited in Boston College where it would remain inaccessible in all circumstances unless prior approval was given by the donor or the storyteller died.
In May of 2011 the Police Service of Northern Ireland applied through the Mutual Legal Assistance Treaty to the US authorities to subpoena part of the archive as part of a 1972 killing investigation.
Mr. Burke, welcome to Echoes of Erin! This is so wonderful to have you speak to us today.
Thomas Burke (Mr.B): Well, thank you Diane. Thank you for inviting me.
DB: I read your emails as part of the IAUC group and boy! You really put some good thoughts out there.
Well look, on this topic, Mr. Burke, can you give us an update on the status of where everything stands?
Mr.B: Yes. The subpoenas from the British, and I won’t go into how they ever got across the ocean and served by the Department of Justice, but they were. The issue is now before the First Circuit Court of Appeals in Boston.
Boston College has been very cooperative in turning this material over but it’s now in the chambers of Judge Young in the US District Court in Boston. While the right of the people who established and maintained the archive, Anthony McIntyre and Ed Moloney, a long-time journalist, are fighting out whether they had the right to intervene in opposition before Judge Young to turning these over.
There have been briefs and oral arguments and now I understand there’s still some more manoeuvring in writing that’s going on but we’re waiting for a decision; we were by June 6th but the government got an extra thirty days to turn in its final brief on the subject.
So that’s where we are right now and and we’re awaiting action by the Court of Appeals.
DB: Now there have been many Congressmen that have written to Hillary Clinton and requesting her support in not submitting to this subpoena. So many of them and yet our government really isn’t moving on that. Eric Holder– What’s with him?
Mr.B: Well, we really don’t know. The subpoenas arise from a Mutual Legal Assistance Treaty between Britain and the United States, we have almost identical treaties with many, many other nations, which was designed to help each other locate evidence of drug laundering and international criminal conspiracies and things of that kind; not to go on political witch hunts, which I think this is.
I think the Justice Department and the State Department are kind of frozen in their tracks. We’ve made representations to both of them.
I’m happy to say Pennsylvania has been very good in the United States Congress about making representations requesting that the State Department ask the British simply to withdraw these subpoenas.
Mr.B: We have. And the thing we’ve been really pleased about is we haven’t ever worked together as well as we have now and I think probably that was just the result of everybody wanting to work on their own schedule and we’ve made an effort to coordinate our effort and seems to be paying off somewhat at least.
DB: You’re three very influential groups and it just goes to show that when people work together for one goal what can be accomplished. So what’s your next step? What’s going to happen next? Do you know?
Mr.B: Well, we have to wait for a decision.
And then we have to re-double our efforts in the Congress and before the State and Justice Departments to seek our goal of an ultimate withdrawal of the subpoenas.
It came about in the Northern Ireland Police Force when the Historical Enquiries Team, which is part of the police force, was put together and assembled in an effort to find out what, during The Troubles, happened to people; no prosecutions or anything like that, but just what happened to the people who disappeared in that ugly war.
And the Historical Enquiries Team ran out of people to do it with so they hired one of these outfits that brings in extra people, a little bit like Manpower, except in this case they brought in all of the former retired RUC men who really had axes to grind so we’ve got some people trying to stir up trouble, take revenge and that’s really the source of the subpoenas and that’s what we’re combating.
DB: And of course, from much of the material that I’ve read it looks like it is a witch hunt to get to Gerry Adams.
Mr.B: Oh, I think that’s certainly informed speculation.
Mrs. McConville, who was in fact murdered after being warned several times not to inform the British anymore on the IRA and its doings has a daughter surviving her, one of many, who is absolutely convinced beyond all reason that Gerry Adams is personally involved in her mother’s murder.
So that’s really what’s going on…and that’s forty years ago.
So that’s what we’ve got– is some people trying to settle some old scores with evidence that really doesn’t exist.
DB: And isn’t it amazing that forty years ago the police service did not pursue this line of investigation? They just let it go. It wasn’t important and now it is.
Mr.B: It was worse than that- they didn’t have any evidence.
The Department of Public Prosecutions, which is kind of like our Attorney General’s office here, I think on many occasions was asked to chin up a prosecution and they always turned it down because they really didn’t have any evidence that would hold water. And they still don’t.
Whatever’s in that archive is manifestly hearsay; not under oath and it wouldn’t be admitted in a court either in this country or in Britain.
DB: Now Mr Burke, what is the implication if in fact the subpoena does get carried though? What does that mean to us Americans?
Mr.B: Well, if it’s turned over then we just have to see what the British decide they want to do with it; whether they want to bring up a prosecution.
What I’m afraid it will do is act as a further unraveling of the 1998 peace accords consisting of: the Belfast Agreement, the Hillsborough Agreement and the one that’s specifically applicable here, the Weston Park Agreement.
So I think what we could look at on this side of the water is possibly unraveling of the agreement that brought about an end to the war and for no particularly good reason.
The United States government needs to pay closer attention to this issue because the British are acting almost instinctively, as they always have, to try to get a leg up on this whole situation.
And it was only because the Americans were in there and standing with the British and looking them straight in the eye that we got what we got. And now I’m afraid it’s at risk and this is just one of the manifestations of it.
DB: Well, it doesn’t seem like the Obama Administration is real keen to pursue Irish issues, but yet other people in the world we’re gonna help 1-2-3 lickety-split, but not the Irish.
Mr.B: Well, that’s certainly how it seems. We all know that the American government has alot on its plate but they need to leave some room for really preserving one of the government’s great victories.
DB: Oh, absolutely. Now Ed Moloney and Anthony McIntyre. Anthony lives in Belfast or Northern Ireland.
Mr.B: He does.
DB: And Ed Moloney lives in here in New York…
Mr.B: He’s (Anthony McIntyre) living in Dundalk in The Republic but he works every day up in Belfast.
DB: What implications are there for him personally should this…
Mr.B: Oh my! There are all kinds of things that can happen.
If enough of this stuff got out, I think alot of people, not just Anthony but alot of others, would have their lives put directly at risk.
DB: My goodness! Now what can we as Americans do?
Mr.B: We can directly write or contact Hillary Clinton at the State Department and Mr. Holder at the Department of Justice and contact their own members of Congress to reinforce those requests.
Your own state has been exemplary in getting its elected representatives and Senators to contact the Congress but it wouldn’t hurt to get more.
I think ultimately this is going to be settled in a political way and not in a legal way. So the best foot we can put forward is to put our own elected representatives on notice that we’re watching them and we need them to do what the government promised to do.
DB: And I would think Hillary Clinton is the key here because Eric Holder doesn’t seem to be moving at all and Obama’s not… he’s sort of mute on this.
Mr.B: Yes. His (Attorney General Holder’s) obligation under the treaty is to serve the subpoenas and to provide the lawyers, if there’s resistance as there has been, in the courts.
And he takes a very shall I say short-sighted view of what his job is: and it’s simply to be the lawyer under a treaty and do what the British have asked him to do.
I think Secretary Clinton has been a better about this but not good enough.
We would like very much to have her get out in front as she once did in 1998.
DB: Well then let’s bombard her with letters!
Mr.B: Yes! I agree completely.
DB: And ask her to do something. This is really important, I think. And we just can’t let the Brits do this to us. If this happens, what are the long-range implications of other things happening like this? Not good!
Mr.B: That’s what everybody is worried about, Diane. If they can do this they can do other things. And as I say, it’s almost an instinct for the British to beat up on the Nationalists in Northern Ireland. And it’s almost as if they can’t help themselves but we need to be there and lend a strong hand to stopping it.
DB: I know the Irish American Unity Conference is a very instrumental group here and, as a matter of fact, you’ve got some events coming up yourselves here in a few months in October I think, don’t you?
Mr.B: We do. The weekend of October 12-13 and 14 is the national convention that will be held in Baltimore, Maryland at a beautiful hotel on the harbour. And we look to have very good participation not only from our own organisations, not only from our own IAUC but also from the other Coalition organisations, the AOH and The Brehon Law Society, and a lot of other people who have been with us before and we want them to be with us again.
It should be a wonderful time.
DB: Oh, I’m sure…I’m sure. Good luck with it. I’d might be there except that weekend I’m running a fund raiser for the radio show so I won’t be there.
Mr.B: Okay. Well, if you can get there that’d be great.
DB: Well look, you’re going to be back with us in September, I hope.
Mr.B: I certainly hope so…the Lord willing.
DB: He’ll let you. He’ll let you come back to Echoes of Erin, Mr. Burke. I want to thank you so much for taking your valuable time. I hope you feel better and I think you’ve been very informative here.
Mr.B: Thank you, Diane, I appreciate the opportunity.
DB: Good! Even come September maybe we can follow-up a little bit with what’s happening here and then with some other things you’re involved in as well. Does that sound like a date?
Mr.B: Pretty close.
DB: Alright, alright. Well look, you take care and just feel well and we’ll talk with you again.
Mr.B: Thank you, Diane.
DB: Ladies and gentlemen: I hope you enjoyed that conversation with Thomas Burke, he is the National President of the Irish American Unity Conference and what he said: we need to bombard Hillary Clinton with letters to support the AOH, the IAUC and The Brehon Law Society and not letting our government give in to this subpoena to the British. It just shouldn’t be…just should not be.
Groups step up BC campaign Irish Echo
NEWS & VIEWS
JUNE 7TH, 2012
Irish-American leaders are expanding opposition campaign to the Boston College subpoenas being pursured by the U.S. Justice Department. After a meeting in New York, leaders of the Ancient Order of Hibernian, Brehon Law Society and Irish American Unity Conference said in a joint statement that appeals will be directed at British consulates, additional members of Congress and to President Obama “to halt British abuse of the Mutual Legal Assistance Treaty.”
The leaders also announced the support of key members of the Senate Foreign Relations Committee, Senator Robert Casey of Peensylvania and Senator Ben Cardin, who is also co-chair of the Committee on the Security and Cooperation in Europe (Helsinki Commission).
Rep. Richard Neal, former chairman of the Friends of Ireland in Congress has also raised questions about the subpoenas.
“The Department of State and the Attorney General, the chief law enforcement officer of this nation have failed to acknowledge the legal flaws and policy questions in this request of the British government. The UK’s actions in dismissing an Irish peace pact requirement of a public inquiry into the Finucane murder calls into question why the U.S. should honor this politically suspect MLAT request,” said Seamus Byole, National President of the AOH.
The National President of the Irish American Unity Conference, Thomas J. Burke Jr., stated: “The Committee on Security and Cooperation in Europe documented as recently as this past March the efforts of the British government to undermine the rule of law and the work of justice in Northern Ireland. If the U.S. turns over the records from the Boston College Irish archives to this most discredited Police Service of Northern Ireland one must ask how committed is the United States to the Irish peace process.”
Stated Robert Dunne, president of the Brehon Law Society in New York City: “We are frankly appalled that the same Department of State that scrambled mightily to rescue a Chinese human rights lawyer will not insist the British should abide by the Weston Park agreements and hold a public inquiry into the murder of Irish civil and human rights attorney Patrick Finucane.”
The leaders have asked the members of congress who have supported their opposition to the subpoenas to demand of the Department of State and the attorney general an explanation as to why the U.S. should be a part of a British effort “to collude yet again with loyalist dissidents in impeding justice and adding more uncertainty to the Irish peace process.”
The Honorable Hillary Clinton
Secretary of State
United States Department of State
Washington, D.C. 20521
Dear Madame Secretary,
As the Ranking Member of the Friends of Ireland Caucus in the U. S. House of Representatives, and someone who has worked for three decades to help bring peace and reconciliation to the island of Ireland, I am writing to express my concern over the British governments efforts to obtain confidential documents and recordings from Boston College’s Oral History Archive on the Troubles in Northern Ireland. It is my sincere belief that if this material is made public, particularly at this time, it has the potential of destabilizing the peace that both you and President Clinton worked so hard to achieve. It could also place the lives of many of the participants at risk.
The Good Friday Agreement, and the implementation of a devolved power sharing government, are some of the most significant American foreign policy accomplishments in recent memory. In fact, Northern Ireland is now viewed as a model for successful conflict resolution around the globe. From the Middle East to Sri Lanka, other societies in dispute now look to the political leaders on that island to learn the lessons of peace making and ending armed confrontation. Ancient adversaries now work side-by-side building a shared future. After a long and difficult peace process, in which the United States contribution was indispensible, Northern Ireland is truly a society in transformation.
While I fully understand the United States has an obligation to honor the terms of our Mutual Legal Assistance Treaty with the British government, it is the belief of many people on both sides of the Atlantic who took risks for peace that the requests for the documents is selective and politically motivated. More importantly, and as noted by the highly respected Brehon Law Society; “statements on tapes that were not sworn and were intended not to be disclosed until after the deaths of the people making the recordings have no legal value. It must be recognized that this is information and not evidence. It is not sworn testimony which could be used in a court of law.”
When President Obama made his historic visit to Ireland last year, he said “how inspired we have been by the progress that has been made in Northern Ireland.” I am certain that millions of Irish Americans would agree with that sentiment. But the release of the Boston College documents would help undermine that very progress and unfasten a fragile peace. As a result, I strongly urge you to encourage the British government to reassess their position and withdraw their request. I thank you for your leadership and all you have done to bring peace and stability to the island of Ireland.
The Honorable Hillary Clinton
Secretary of State
Department of State
Washington, D.C. 20510
Dear Madam Secretary:
I am writing to express my concern about the ongoing efforts on behalf of the United Kingdom to obtain the extremely sensitive documents and recordings pertaining to the Boston College Oral History Archive on the Troubles in Northern Ireland. As the Co-Chairman on the Helsinki Commission and a member of the Senate Foreign Relations Committee, I am deeply concerned about the potential impact the release of this information will have have on the fragile peace that exists in Northern Ireland.
I understand the case continues to be in litigation, and noted with interest that the American Civil Liberties Union (ACLU) filed an amicus brief in support of the Irish-American community that has steadfastly opposed the U.K. government’s actions. As you know, Maryland has a large, historic Irish-American community and I have on multiple occasions met with them to discuss this particular case.
I know that several of my colleagues have also registered their concern about this case with you. I appreciate the fact that raising such a sensitive topic with an ally like the United Kingdom is difficult given our shared commitment to the principles of our Mutual Legal Assistance Treaty. However, I wanted to take this opportunity to encourage you to work with the U.K. authorities to rescind their request.
Thank you in advance for all your efforts to resolve this situation, and all that you do to promote lasting peace in Northern Ireland.
The Honorable Hilary Clinton
Secretary of State
U.S. Department of State
2201 C Street NW
Washington, D.C. 20520
Dear Secretary Clinton:
I write to express my concerns regarding the United Kingdom’s efforts to obtain documents and recordings from Boston College’s Oral History Archive on the Troubles in Northern Ireland. I believe that such an action could seriously endanger the peace process in Northern Ireland and jeopardize academic freedom in the United States and abroad.
While I fully respect the U.S.’s commitment to the U.S.-U.K Mutual Legal Assistance Treaty, under which the U.K. has made this request, I urge you to consider the broad public policy implications of releasing these documents and recordings. In particular, releasing testimonies with sensitive information breaches the confidentiality guarantees that were provided to participants who were told that any information they provided towards the project would not be released until their death. Additionally, this effort could put the future of sensitive research projects at home and abroad at risk by sending a signal to participants that their confidentiality may not be protected.
Furthermore, releasing sensitive materials involved in this project could upset the fragile peace process and reconciliation efforts in Northern Ireland achieved by the Good Friday Accords. After decades of violence, the Accords, established in 1998, have improved security in the region and allowed the people of Belfast to rebuild their lives. However, challenges still remain, and the release of these documents and recordings may disrupt the tremendous progress made in the region.
Thank you for your time and attention to this matter, and I look forward to your response.
Sincerely,
Albio Sires
Member of Congress
Cc: The Honorable Eric Holder, United States Attorney General
Boston College Subpoena News 