Grave matters

Grave matters
by Niall Stanage
22 July 2012
Sunday Business Post

The killing of Jean McConville has echoed down the decades with as much resonance as any death suffered during Ireland’s Troubles.

In December, it will be 40 years since the widow and mother of ten was taken from her home in West Belfast’s Divis Flats, interrogated, brought across the border and shot dead.

Those who sent her to her fate were members of the IRA who believed that she was an informer for the British army. Her body was eventually found in 2003 at a beach near Carlingford, Co Louth. McConville’s family have in the past denied she was an informer.

McConville’s death created little stir at the time, largely because it occurred against a very different backdrop than the present day. She died in 1972, the single bloodiest year in the Northern conflict, when almost 500 people were killed. No one has ever been convicted of McConville’s murder and, for a long time, it seemed as if no one ever would be.

But that may be beginning to change. Her case is now attracting attention on both sides of the Atlantic, reaching the pages of the New York Times and the airwaves of America’s National Public Radio.

The search for the truth about what happened to McConville is raising complicated questions. It now involves a British government attempt to override promises of confidentiality made as part of a sensitive academic project.

This has led to debates about the reach of government, the extent of the public’s ‘right to know’ and the capacity of researchers, academics and reporters to protect their sources.

That’s not all. As is so often the case in the North’s hall of mirrors, the question of whether there is really an ongoing good-faith effort to solve her killing – or whether there are other, shadier motivations at play – is hard to answer.

Troubles, tapes and threats

The spotlight that has been shone onto the case has exposed numerous divisions, enmities and straightforward differences of opinion. But some facts are clear.

During 2000 and 2001, journalist and author Ed Moloney, then the Northern editor of the now-defunct Sunday Tribune, began discussions with Boston College about conducting an oral history project pertaining to the Troubles.

Boston College – commonly known as ‘BC’ in the United States – had an obvious interest in such an idea, being proud of its reputation as the pre-eminent US university in the field of Irish studies.

The outlines of the proposal were simple – or so it appeared at the time. Under the aegis of BC, Moloney would hire researchers to interview former combatants, both republican and loyalist, about their experiences. These people would be induced to talk, in part by the promise that their testimonies would not be released until they died, unless they expressly permitted otherwise.

The project got fully under way in 2001. According to BC spokesman Jack Dunn, the materials collected and now held under lock and key in the college’s Burns Library, amount to a series of interviews with “26 former IRA paramilitaries and approximately 20 to 24 recordings of interviews with former UVF [Ulster Volunteer Force] members”.

The Belfast Project, as it was known, was completed in 2006, to the apparent satisfaction of everyone involved. Four years passed. Then the roof fell in.

In 2010, two Belfast-based newspapers carried stories about Dolours Price, a former IRA member who had been jailed with her sister Marian and the now-prominent Sinn Féin representative Gerry Kelly for the 1973 bombings of London’s Old Bailey.

Price, the stories stated, had confessed her involvement in McConville’s murder, and also alleged that the Sinn Féin president Gerry Adams was her “officer commanding” at the time. A similar allegation against Adams, it emerged, had been made by Brendan Hughes, a former IRA commander who died in 2008.

Adams, who has always denied being an IRA member, has repeatedly and emphatically denied having anything to do with McConville’s death.

The newspaper interviews with Price are shrouded in some controversy because Price, who has acknowledged that she suffers from post-traumatic stress disorder, was said to be in ill health at the time. The journalists involved stand over their reporting.

Price, crucially, also acknowledged that she had told a similar story about McConville to the BC researchers. More than a year after the newspaper stories appeared, the British government, acting under the terms of a treaty with the US, sought a subpoena to prise the materials from Price’s BC interviews out of the college’s library and into their own possession.

The British also sought materials gleaned from interviews with Hughes. Last August, this was followed by a further set of subpoenas seeking, from the entire Belfast Project archive, “any and all interviews containing information about the abduction and death of Mrs Jean McConville”.

Cue legal mayhem.

BC’s governing trustees gave up the Hughes materials, because he had died. They challenged the subpoena pertaining to Price and lost. The college has an appeal pending about the other, broader set of subpoenas, but it is not appealing the order that it should give up the Price materials.

“The reality is Dolours Price had given an interview with the Irish media in which she had implicated both herself and Gerry Adams in the abduction and murder of Jean McConville,” Dunn, the BC spokesman, told The Sunday Business Post. “It made the notion of appealing to the court to protect her confidentiality less than compelling.”

But the prospect of giving up any material is anathema to Moloney and the researcher whom he employed to conduct the IRA interviews: the writer and political analyst Anthony McIntyre, himself a former IRA prisoner.

The two men, bitterly disappointed at BC’s actions, are taking their own legal measures to try to keep the tapes under wraps.

Moloney and McIntyre view the trust between themselves and their interviewees as sacrosanct. To give up the materials would amount to a betrayal of their ethics as journalists and academics, they say.

The duo suffered a considerable setback earlier this month when an appeal they had lodged was turned down by a US court. According to McIntyre, they will now seek what is known as an en banc hearing, in which all of the judges on the US’s First Circuit, rather than just the three who rendered this month’s verdict, consider a case.

There is no guarantee that the en banc hearing will be granted, however. If it is refused, McIntyre and Moloney have the possibility of appealing the case all the way to the US Supreme Court. They are simultaneously pressing their case through a judicial review in the North.

Amid all the legal wrangling, there are more basic concerns. If the Price tapes – or other interviews – are given up, people named in those tapes would be exposed to legal jeopardy. That, after all, is the whole point of the exercise from the British government’s perspective.

Such an outcome would be seen in certain districts of the North as Moloney and McIntyre having handed the British authorities a gift. The finer points of the argument as to whether the two men had been hung out to dry by BC would probably not be of paramount importance to aggrieved republicans.

Moloney now spends much of his time in New York, but McIntyre, who left west Belfast for Drogheda, is less distant from anger. A neighbour’s house in the Co Louth town was attacked with excrement in 2010, a bizarre occurrence that he says gardaí ascribed to a case of “mistaken identity”.

Around the same period, media reports alleged that republicans in Belfast were threatening that McIntyre would face a similar demise to that suffered by Eamon Collins, an IRA informer-turned-author who was killed in brutal fashion in Newry in 1999. Although Sinn Féin has in the past denied that McIntyre faces any threat, he told The Sunday Business Post that he and his American-born wife Carrie Twomey are “extremely worried” about the implications, if the US courts continue to rule against them.

“If this stuff gets turned over, the situation will get very dangerous for us,” he says.

Professor Richard English, a historian who has written extensively about the IRA, agreed. English is concerned about the possible implications of adverse court rulings on future oral history projects – and also about the safety of McIntyre and Moloney.

“There is always a risk in the North that some outlier might seek to punish someone they consider to have transgressed a code of secrecy,” English says. “I think the mainstream groups from the Troubles will not sanction violence in this instance. But there are more marginal figures who might perhaps want to settle some scores.”

A knotty enmity

To say the BC case is knotty hardly does it justice. From every perspective, complication is piled upon complication. To take just one example, both Moloney and McIntyre have, on occasion, vigorously criticised Sinn Féin’s leadership.

Now, however, in the process of defending the confidentiality of the Belfast Project interviews, the two men profess considerable concern about the implications for the “pro-peace” elements of the republican movement – and the peace process itself – if the American courts rule against them.

The personal enmity between Moloney and Gerry Adams is common knowledge among the North’s political observers. McIntyre for several years ran a website, The Blanket, which served as a forum for debate among republicans, many of them dissatisfied with the direction of the peace process.

Still, Moloney stated in one affidavit relating to the BC matter: “Dissident opponents of the pro-peace party within the IRA . . . will find only hope and comfort if the oral history tapes are handed over to the PSNI, especially if criminal charges follow.”

And what of the motives of the British government in seeking the release of the tapes? The whole British effort to get the Belfast Project materials could, on the one hand, be a sincere effort to bring McConville’s killers to justice. The specifics of the British stance are hard to divine because the full request to the American government to issue the subpoenas remains sealed. But it seems safe to presume that the authorities would couch their request in terms of the desire to see the law enforced.

Since the Good Friday Agreement, however, the powers-that-be in the North have been generally circumspect about pursuing prosecutions for acts relating to the Troubles carried out prior to 1998. Such prosecutions are not impossible or unprecedented, but they are rare.

Even such a staunch Adams critic as McIntyre wonders whether the true purpose of the BC subpoenas could be to publicly embarrass the Sinn Féin leader – “to fuck Big Gerry over,” as McIntyre pithily puts it – or at least to seek a bargaining chip with Sinn Féin.

The British, he posits, could be “trying to bounce Sinn Féin into making a serious contribution to addressing the past. The Tories do not want troops in the dock [for their actions on Bloody Sunday or elsewhere] and there might be an idea of saying to Sinn Féin, ‘Well, if that happens, then this will happen’.”

The legality of confidentiality

The key legal issue in the BC case is under what circumstances academic researchers – or reporters – can uphold promises of confidentiality to sources.

Given the United States’ expansive press freedoms under the First Amendment – freedoms that makes libel cases much easier for the media to defend than in Ireland or Britain – a common misconception has taken root. It is the idea that journalists – or, in the BC case, academics – have a near-absolute right to honour promises of confidentiality.

This is simply untrue, as the most recent verdict rejecting Moloney and McIntyre’s arguments makes clear. The US Supreme Court long ago set a powerful precedent in these matters.

The case, known as Branzburg v Hayes (argued and decided in 1972, the same year as Jean McConville’s death) brought together a handful of instances in which reporters were being pressured to give up sources who may have been involved in, or at least witness to, illegal activity.

The reporters argued, in essence, that the mere fact that they were journalists meant that they could decline to testify before a grand jury, for fear of incriminating their sources. They lost, albeit by the closest possible margin of 5-4.

“We cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it,” Justice Byron White ruled, for the majority.

Another judge offered a concurring opinion but with a caveat: “If a newsman believes that the grand jury investigation is not being conducted in good faith, he is not without remedy,” Justice Lewis Powell stated, going on to say that a request for disclosure could be quashed if a reporter had “reason to believe that his testimony implicates confidential source relationship without a legitimate need of law enforcement”.

In the BC case, Moloney and McIntyre contend that the British government is not acting in ‘good faith’. The courts have not proven receptive to that argument so far.

The duo’s legal team would also prefer if the courts paid greater notice to a later case, albeit one which did not ascend to the lofty heights of the Supreme Court.

In 1998’s Cusumano v Microsoft, the US Court of Appeals held that the giant software corporation could not obtain what it wanted: the notes, tapes and transcripts acquired by researchers who were writing a book about the “browser wars” between Microsoft’s Internet Explorer and a rival, Netscape Navigator.

Microsoft said it wanted the materials in order to help defend itself in a civil case regarding alleged abuse of its dominant market position. The judges at an earlier stage in that process found that Microsoft’s imperative to have the information “though real, was not great”.

But, even in the Microsoft case, the court was crystal-clear that no absolute right of confidentiality existed. Instead it ruled that, on a case by case basis, “courts must apply a balancing test” weighing the imperative for disclosure against the desire for confidentiality.

The judge who delivered the ruling on Moloney and McIntyre’s case offered a stark verdict. “The choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers,” Chief Judge Sandra Lynch held.

Even the slightly more favourable opinion offered in the Moloney and McIntyre suit by Circuit Judge Juan Torruella did not provide much real grounds for optimism for the duo. Torruella basically said that the other members of the court had gone too far in suggesting that “the First Amendment does not provide some degree of protection”. But he still endorsed the idea that the court needed to conduct a balancing act – and that Moloney and McIntyre were on the losing side of that argument.

He added that, where serious crimes were concerned, the Supreme Court had already determined that even if the First Amendment offered limited protection to reporters or researchers, it was “insufficient to overcome the government’s paramount concerns in the present context”.

The college and the controversy

These debates may sound dry or arcane to some, but they go to the heart of a more messy and human story: the way in which Moloney and McIntyre are now at loggerheads with BC.

The extent to which relations have broken down is evident in interviews given to The Sunday Business Post.

Shorn of the most vituperative elements, the division is one in which Moloney and McIntyre feel BC has failed to fight hard enough against the subpoenas, while representatives of BC feel that the two Irishmen are trying to deflect attention from their own responsibility for the legal farrago.

Both sides are now expending considerable effort in arguing over the negotiations that marked the Belfast Project’s earliest days.

Under one interpretation – the one favoured by Jack Dunn and, presumably, others at BC – the university warned Moloney at an early stage that no absolute guarantee of confidentiality could be given to anyone. They suggest by implication that it was his fault if those qualifications were not passed on to those who agreed to be interviewed.

Under the other interpretation – that emanating from Moloney and McIntyre – BC totally agreed with the guarantee of confidentiality but, now that the heat is on, is trying to get out of it.

Both sides can marshal evidence to support their case.

BC now places a lot of stress on the contract that was signed on January 31, 2001, codifying the agreement between Moloney and BC. It states that each person interviewed is “to be given a contract guaranteeing to the extent American law allows the conditions of the interview”.

The reference to the primacy of American law, according to Dunn, means that “clearly – clearly! – [Moloney] was told in advance that there were limits to confidentiality based on American law”.

He adds: “To say that assurances of confidentiality were given by Boston College is completely specious. There is absolutely no truth in that statement whatsoever. ”

But is it? While it is apparently accurate that no one from BC made direct promises to any interviewees, court documents – in particular affidavits from senior figures at the university – seem to suggest that they were, at the least, acquiescent in those promises being made.

For example, in an affidavit dated June 2, 2011, Thomas E Hachey, the director of Boston College’s Centre for Irish Programs, said that, at the start of the project, he was unsure how many people would be willing to participate.

But, he added under oath, “the opportunity to gather testimony for posterity that would be kept strictly confidential during the interviewee’s lifetime and retained in a collection that would be housed in Boston, rather than Belfast or Dublin, prompted more involvement by paramilitary veterans than we might otherwise have expected”.

He went on to outline his belief that Moloney had required interviewers to convey to participants “the absolute promise that their accounts would be kept confidential until the demise of the individual providing the testimony . . . I believe that few, if any, of the interviewees would have agreed to participate without such assurance”.

The affidavit contains no suggestion that Hachey thought Moloney was being reckless or cavalier in pushing such a pledge.

McIntyre, for his part, is adamant that “the very first stumbling block” when he was considering becoming involved in the project was the question of how confidentiality could be assured. “Without that, it was a non-starter,” he recalls.

The dispute has left relations between the men and the college seemingly beyond repair.

“Boston College has behaved totally unscrupulously through all of this,” says McIntyre.

Dunn counters: “When it became a problem, instead of accepting responsibility, Mr Moloney and Mr McIntyre have literally gone on a full-scale publicity campaign to deflect responsibility from themselves. The old adage of ‘beware he who doth protest too much’ . . . ? I think that is becoming abundantly clear.”

Beyond the heated words, unaligned historians fear that the whole BC issue will prove a deterrent to cooperation with academic inquiries in the future.

“One of the crucial aspects of research into violent conflict is trust between researchers and interviewees,” says Richard English. “If people to be interviewed fear that what they say will become public, despite reassurances from the researcher, then their honesty and openness in research situations will become narrowed down.”

What happens next is not certain. At the time of going to press, it was unclear whether Moloney and McIntyre’s request for an en banc hearing would be fulfilled. BC expects a decision on its attempt to resist the broadest subpoenas – those relating to requests for all material relating to the McConville killing – in the autumn.

Dunn says of that case: “We think this appeal is crucial. The notion that, because we didn’t defend the indefensible regarding Dolours Price, we somehow aren’t committed to this, is an insult.”

He is also scathing of Moloney and McIntyre’s separate legal efforts, saying of this month’s verdict that “we knew it was a case that could not be won” and that it “didn’t help our cause at all”.

While all the legal arguments turn, the family of McConville still wait for justice.

Whether they will receive a measure of it, whether their mother’s killing will go unsolved or whether the whole dark episode will become a pawn in a bigger game remains to be seen.

Attempts by this paper to contact the most publicly prominent member of the family, her daughter Helen McKendry, were unsuccessful.

McIntyre says he feels sympathy for McConville’s relatives. But he adds that those emotions do not erase his other responsibilities.

“I have every sympathy with the McConville family,” he says. “But it is not my job to provide evidence to other people and in doing so breach a promise of confidentiality.”