Boston College Oral History Project Faces Ongoing Legal Issues

Boston College Oral History Project Faces Ongoing Legal Issues
April Witteveen
Library Journal
March 12, 2015

After years of ongoing legal issues, Boston College’s (BC) Belfast Project is again in the news. The Project, launched in 2001, is an oral history collection consisting of recorded interviews from participants in Northern Ireland’s 30-year civil conflict known as the Troubles.

Funded in large part by Thomas J. Tracy, an Irish American philanthropist with a strong interest in American and Northern Irish politics, the Belfast Project held some 50 interviews conducted through 2006. The project director’s contracts promised confidentiality of the interviewees’ recordings until after their deaths, although these were not reviewed by BC’s counsel. However, since 2011 the U.S. Department of Justice has received numerous subpoenas requesting the interview material from the United Kingdom as they continue to investigate crimes that occurred during the conflict.

In early 2015, Winston Rea, a former loyalist prisoner, “secured a temporary injunction as police were set to board a plane for America” to retrieve his tapes from the Belfast Project. As of February 27, a judge claimed the Police Services of Northern Ireland’s (PSNI) request for information was lawful as regards the subject of a police investigation; the recordings have been secured but have been kept sealed, as Rea has decided to file an appeal.

Dangerous Work

The project’s roots date back to 2000, when journalist Ed Maloney introduced BC librarian Robert O’Neill to Irish historian and former Irish Republican Army (IRA) member Anthony McIntyre in order to propose a project: to collect recorded stories from former IRA paramilitary members, capturing their record of the conflict.

While such an archive would be of great historical and cultural significance, this would be dangerous work. In a story for the Chronicle of Higher Education, Beth McMurtrie wrote:

“Although the fighting was over, informers—or ‘touts,’ as the IRA called them—were not looked upon kindly. You just didn’t go around talking about what you had done in those dark years. Yet the idea was undeniably appealing. To record the stories of the men and women who had put their lives on the line for the cause of independence, some of whom had committed horrific acts of violence in the process, that was something no one else had done.”

McIntyre agreed to act as the primary interviewer for the project, assuming that the material, and the people who took part, would be protected to the fullest legal extent. The participant agreement stated that “each interview would be sealed until the death of the interviewee.” No lawyers were used to vet the agreements. McIntyre began his interviews in Ireland the following year. According to McMurtie, by 2006 he had interviewed 26 former IRA members; in addition, a Belfast researcher gathered interviews from 20 loyalist paramilitary agents to reflect the other side of the conflict.

Legal troubles for the Belfast Project began in 2011. British authorities had requested that the U.S. Department of Justice (DOJ) issue subpoenas for interviews from subjects they believed had connections to various crimes committed during the Troubles. The subpoenas were issued under the Mutual Legal Assistance Treaty (MLAT) signed between the U.S. and the UK in 1994. According to an article in the Stanford Law Review, the MLAT “provides, among other things, that the United States and the United Kingdom will assist one another in ‘serving documents; locating or identifying persons…[and] executing requests for search and seizures.’” The treaty “does not require compliance…in all circumstances,” but the DOJ chose to issue the subpoenas.

By May 2014, 11 tapes had been turned over to the PSNI after it issued a statement claiming it planned to seek the entire contents of the Belfast Project. As a result of these subpoenas Gerry Adams, former leader of Sinn Fein, the IRA’s political branch, was arrested. Two participants in the Belfast Project had implicated Adams in the 1972 murder of Jean McConville, whom the IRA had accused of being an informant. Brendan Hughes, a “legendary IRA volunteer,” had passed away by the time his recordings were subpoenaed; former IRA volunteer Dolours Price however, was still alive, and her tapes remained under embargo. Adams was freed after four days of police questioning.

Robert O’Neill, the BC librarian involved with the project, retired during the 2013–14 academic year; his successor, Christian Dupont, was unable to provide comment. He told Library Journal that due to the unresolved nature of the legal issues surrounding the Belfast Project, all College employees have been told to refrain from making any statements.

Implications for Archives

Christine George, currently the archivist and faculty services librarian at the State University of New York Buffalo’s Charles B. Sears Legal Library, first heard about the Belfast Project when she was in library school; she has since stayed up to date with the evolving legal issues. She published her concerns on the Society of American Archivists (SAA) Issues and Advocacy Roundtable blog. When LJ spoke with George recently, she said: “…the litigation surrounding the Belfast Project serves as a reminder that archivists and institutions cannot provide the protection that certain collections may require. As a profession, archivists need to seriously consider the legal and moral implications of seeking and housing such collections.”

The 2013 response from the now-defunct Government Affairs Working Group of SAA included a discussion of the concept of archival privilege, and how it was unsuccessfully invoked in the case of the Belfast Project: “The belief that there should be an archival privilege of confidentiality rests on the ‘need of history’ for honest information, and thus the need to shield honest answers from potential legal consequences.” This concept, as applied to politically sensitive archival material, has drawn conflicting views. From SAA’s response: “Although some members of the profession clearly believe that such a right should be asserted, others believe that asserting such a right could be interpreted as an unfortunate exercise in absolutism that would be detrimental to the broader public interest.”

James King, a PhD student at the Information School at Pittsburgh University, also studied the Belfast Project and its legal ramifications. In 2014 he published “‘Say nothing’: silenced records and the Boston College subpoenas” in Archives and Records: The Journal of the Archives and Records Association (view the author’s submitted manuscript). In it, he addressed the “the little-recognized preservation hazard of silenced or uncreated records,” and told LJ of his concerns about capturing the voices of the Troubles in particular:

“It seems even more unlikely that future oral history or archival projects related to the conflict will find many participants willing to risk the hazards of contribution. I also fear that this case might affect the many community organizations and storytelling projects that have helped Northern Ireland transition from conflict, as those who experienced the violence of the conflict might now reasonably decline to tell their stories.”

Both King and George addressed the need for archival policies that would allow voices of conflict to be heard. However, with academic or archival privilege questionable at best in cases like this, King stated his hope “…that similar endeavors in the future will learn from the Belfast Project by proceeding only once all legal and ethical implications are understood, addressed, and conveyed in a manner that can truly guarantee the safety of participants.”

At this point it is unclear what contents of the Belfast Project are still held by BC. According to an FAQ on the college’s website, the records are closed, “unavailable to use for any reason.” In May 2014, the New York Times quoted BC as stating that it would return any material to participants who wanted their interviews back. This had been a point of contention between BC and McIntyre and Maloney; the latter two felt that as soon as the confidentiality of the Project was compromised this offer should have been extended to the participants. The article closed noting: “All the material is now locked away in an undisclosed location.”

This article was featured in Library Journal‘s Academic Newswire enewsletter.

Persecuted, unrepresented.. why loyalists feel they are backed into a corner

Persecuted, unrepresented.. why loyalists feel they are backed into a corner
By Deborah McAleese
BelfastTelegraph.co.uk
03 March 2015

Discontent within loyalism spectacularly erupted in December 2012 when Belfast City Council voted to fly the Union flag at the city hall only on a handful of designated days each year.

Loyalist communities saw this as the latest attack on their culture and identity. What followed was months of disruptive, and often violent, protests that caused massive damage to Northern Ireland’s economy and reputation.

The protesters justified their actions as a fightback against what they perceived to be the erosion of their Britishness.

Two decades on from the peace process and loyalists believe the only winners have been republicans.

They feel persecuted, sidelined and unrepresented. They are also now terrified of what could be uncovered through the Boston College interviews with former Red Hand Commando leader Winston Rea and the ‘supergrass’ case involving ex-UVF leader Gary Haggarty.

There are also hundreds of legacy cases that are yet to be investigated.

Former PUP leader Billy Hutchinson said loyalists were being “hunted down like dogs”, while republican ‘on the runs’ were handed letters “to keep them out of jail”.

Feeling cornered, loyalists have responded with veiled threats of violence, warning that these legacy investigations could have “a destabilising impact on society”.

As long as there remains no other way to address Northern Ireland’s toxic past, the PSNI has no option but to investigate unsolved crimes.

Recently, proposals emerged from the Stormont House talks that include a structure for addressing the past, involving a Historical Investigations Unit (HIU).

It is unlikely the unit will be operational before 2017. Until then it is the responsibility of the police to pursue these cases.

Elements of loyalism remain wedded to criminality. Paramilitary gangs are involved in drugs, extortion, money laundering and counterfeit cigarettes. In east Belfast it has been claimed that loyalist paramilitaries have been responsible for driving a number of business owners out of the area.

Alliance MP Naomi Long said a number of local employers had told her they had to move their businesses elsewhere because they felt they could “no longer bring a mixed workforce into the neighbourhood”.

This is costing jobs and investment in the area.

Many feel loyalist leaders should be concentrating their efforts on helping to untangle the grip paramilitaries have on their local communities instead of stirring up discord.

‘We’re being hunted like dogs while Provos get their letters of comfort’

‘We’re being hunted like dogs while Provos get their letters of comfort’
A legal tug-of-war over taped conversations with a former Red Hand Commando leader and an impending UVF ‘supergrass’ trial are stoking anger among hardline loyalists, writes Brian Rowan
Belfast Telegraph
03 March 2015

On October 13, 1994, William ‘Plum’ Smith sat at the loyalist top table as the Combined Loyalist Military Command (CLMC) declared its ceasefire. It was a response to the IRA cessation announced at the end of August that year.

And by December, Billy Hutchinson headed a loyalist delegation that began exploratory talks with Government officials. Smith and David Ervine were also part of that delegation. And these were the first big steps out of conflict.

But, quoted elsewhere in this newspaper today, both Smith and Hutchinson have said that, if loyalists had known then what they know now, then the ceasefire may not have been called. In their internal discussions, they may not have “got it over the line”.

It is a further indication of growing anger, of a bad mood within the loyalist community, as police investigations continue to take the present back into the past. For loyalists, it means the wars are not really over.

One of those investigations is focused on Winston “Winkie” Rea, one of three loyalist leaders I met on the Shankill Road late on October 12, 1994. Back then, I was accompanied by my colleague Ivan Little and this meeting – and a statement we were given – set the scene for the ceasefire announcement that would come the following morning.

“Winston Rea played a massive role in the peace process and was involved with others in bringing about ceasefires and decommissioning,” PUP leader Billy Hutchinson told this newspaper. “The Boston [College tapes] case just shows the system will do anything to get loyalists in the dock.”

That Boston case is an attempt by police to get access to tapes Rea recorded for an oral history project. It has become a headline tug-of-war in the courts.

And those recent events are a long way removed from the euphoria and the excitement of the ceasefire announcements of 1994.

“I sat in those smoke-filled rooms leading up to the ceasefires with all shades of loyalist paramilitaries and we raised our heads above the parapet as we moved towards bringing to an end decades of conflict,” William Smith said. “It was a dangerous time and, as we talked, bodies were still piling up outside the doors.

“Many of us took risks, even amongst our own constituencies to secure that elusive peace that so many had failed to deliver previously.

“It was tough, it was dangerous, but the goal of an end to the violence for the sake of future generations was a target we believed people deserved.

“Now, 20 years on, I look back and reflect on a peace and future that is held hostage to the past.”

The Boston tapes may add little to what we already know about Winston Rea. A Google search will reveal him as the former leader of the UVF-associated Red Hand Commando.

He is the son-in-law of the late Gusty Spence, was very public in the political negotiations leading to the Good Friday Agreement and was pictured at the loyalist news conference when the UVF and Red Hand organisations confirmed arms had been decommissioned.

So Rea is one of those loyalists who reads from the chapters of war into the developing peace. That means he was part of an organisation linked to the killings of that pre-ceasefire and pre-peace period.

But will he have discussed the specifics of that on his Boston tapes? Several sources with knowledge of his contribution to the oral history project are adamant that he has not. But the loyalist mood and anger is not just about the investigation focused on Winston Rea.

There is the dark cloud of the ‘supergrass’, or assisting offender, case involving Gary Haggarty, who, like Rea, once had loyalist stripes and a leadership role. He has been in rooms with those who were the key decision-makers, with those who gave the loyalist orders and directions.

Thousands of pages of evidence have been compiled and Haggarty, who was a Special Branch agent, faces a record 212 charges. That list includes five murders, 31 conspiracies to murder and six attempted murders. And this case reads beyond Haggarty. It is about who he might name and implicate that is of most concern to the loyalist leadership.

“It will have a destabilising impact on society, not just one organisation,” Billy Hutchinson said. “It opens the door for others to do this whether republican, loyalist or other. UK legislation that allows this with people like Haggarty is wrong and should be done away with.”

So where could this case lead? Into a detailed examination of a wide range of incidents and activities spanning some 16 years before and after the ceasefires and political agreements.

An investigation of killings, arms importation, UVF membership, swearing-in ceremonies, feuding, ‘punishment’ attacks and assaults, extortion, terrorist funds and directing terrorism.

And that examination will look much wider than Haggarty. It will look at the loyalist leadership and it will look at the Special Branch.

Haggarty was a close associate of Mark Haddock, another significant UVF figure and Special Branch agent, who was investigated by the Police Ombudsman as part of Operation Ballast. And such investigations always stretch out into wider frames.

William Smith may argue that the present is being rewound into the past. But there is no agreed process to remove such investigations.

The Historical Enquiries Team has been replaced by a new Legacy Investigations Branch. And the recent Stormont House talks produced a paper agreement on a structure for addressing the past.

It will have a Historical Investigations Unit, an Independent Commission for Information Retrieval, an Implementation and Reconciliation Group and archive and acknowledgement elements.

The developing peace process has not got to the point of amnesty, of drawing any lines on pre-1998 investigations, inquiries and inquests. And so the past remains an open wound and also open to investigative scrutiny.

Long after the 1994 ceasefires, loyalists and republicans were still importing weapons, still targeting, still killing and kept their organisational structures intact. But loyalists believe they are being treated differently than republicans.

“From my point of view, we understood that by calling the ceasefires everyone would have been treated equally and we would have moved forward,” Hutchinson said.

But he points to the so-called “comfort letters” given to republican suspects on the run, “letters to keep them out of jail” while loyalists are “hunted down like dogs,” he says.

And this is the mood within the loyalist community, a mindset which has prompted this questioning of how the peace process has developed. It has made loyalists who were central to the events of 1994 think back to that period and their decision-making.

“I also doubt very much that if we had known that the ‘rewinders’ would seek out the peacemakers as scapegoats all these years later, that we could have got it (the ceasefire) over the line,” Smith said.

But today’s reality is that the peace has not moved away from the past.

There is still no process that brings all the sides to the table. And there are still many unanswered questions.

And that means, until there is something better, some different approach or new way, that police will continue to investigate.

Senior loyalists: We couldn’t have sold ’94 ceasefire if we knew what we know now

Senior loyalists: We couldn’t have sold ’94 ceasefire if we knew what we know now
By Brian Rowan
BelfastTelegraph.co.uk
03 March 2015

Senior loyalists have revealed that they would not have been able to deliver a ceasefire in 1994 had they known conflict-related investigations would still be continuing today.

Key figures from that period have been speaking to the Belfast Telegraph as police continue their efforts to get access to Boston College interviews with former Red Hand Commando leader Winston ‘Winkie’ Rea.

And loyalists have also warned that the ‘supergrass’ case involving Gary Haggarty, a one-time UVF leader and Special Branch agent, could have “a destabilising impact on society”. Haggarty faces more than 200 charges and loyalists fear his information will lead to the arrests of the most senior paramilitary leaders.

“For a start, we did the right thing in ’94,” PUP leader Billy Hutchinson said.

“But in hindsight, and on reflection, had we known that republicans were going to be given (OTR) letters to keep them out of jail and loyalists were going to be hunted down like dogs, I certainly would have been opposing it (the ceasefire),” he added.

William ‘Plum’ Smith, a former Red Hand Commando prisoner and close associate of ‘Winkie’ Rea, chaired the 1994 news conference at which the ceasefire of the Combined Loyalist Military Command was announced.

“The pursuit of the Boston tapes made by Winston Rea and the resurrection of the supergrass system, albeit under a different name of assisting offender, causes collateral damage to any meaningful or constructive method of dealing with the past,” Smith said.

And with historical investigations continuing, he argued the present was being rewound into the past. He said: “I also doubt very much that if we had known the ‘rewinders’ would seek out the peacemakers as scapegoats all these years later that we could have got it (the ceasefire) over the line,” Smith said.

The legal battle to prevent police hearing Rea’s tapes is continuing.

Smith recently tweeted: “It’s off to the Supreme Court now to appeal decision in Winston Rea tapes case and then the European Court if necessary.”

It was in this newspaper more than three years ago that Rea revealed he had recorded an interview for the Boston College oral history project.

Now, police want the tapes as part of an investigation examining offences of “the utmost gravity” – an investigation that spans a period of more than 20 years.

That investigation covers murder, membership of a proscribed organisation and directing terrorism. But loyalists believe republicans are being treated differently.

“From my point of view we understood that by calling the ceasefires, everyone would have been treated equally and we would have moved forward,” Mr Hutchinson told this newspaper.

But he points to the controversial on-the-runs scheme in which more than 200 republicans received so-called comfort letters allowing them to return home in the period following the Good Friday Agreement.

But the Rea investigation and the Haggarty case mean a detailed examination of the loyalist leadership both before and after the ceasefire continues.

“Twenty years on (from the ceasefire announcement) I look back and reflect on a peace and future that is held hostage to the past,” Smith said.

Recent proposals in the Stormont House talks include a structure for addressing the past that will involve a Historical Investigations Unit (HIU) and an Independent Commission for Information Retrieval (ICIR).

The three issues

1. Gary Haggarty

He is currently at the heart of a huge supergrass trial which could take down some of the UVF’s most senior and feared figures.

Gary Haggarty – nicknamed Mr Gadget – is the man whose evidence could topple the leadership of the terror group.

The UVF has been blamed for at least 30 killings since the loyalist ceasefire two decades ago.

Haggarty was reportedly the group’s south-east Antrim commander. He agreed to turn supergrass while on remand in 2010, charged with the 1997 murder of John Harbinson in the Mount Vernon estate. Mr Harbinson was chained to railings and beaten to death with iron bars.

Under the Serious and Organised Crime Act 2005, offenders can be offered a deal involving a reduced sentence for their crimes in return for a full confession and an agreement to provide evidence against others.

During police interviews, Haggarty gave 30,000 pages of information to detectives.

One of the men Haggarty has named in his evidence is former Special Branch agent Mark Haddock. In return for giving evidence against his former peers, Haggarty is expected to be sentenced – if convicted – to as little as three years.

2. On the Runs

The so-called on the run letters (OTR) scheme started in 2000 and saw more than 200 of the letters of comfort issued by the Government to IRA suspects linked to almost 300 murders.

They told people they were not wanted at that time but did not rule out future prosecutions if new evidence became available.

Former Prime Minister Tony Blair told the Northern Ireland Affairs Committee of MPs earlier this year that the scheme for fugitive IRA members “was absolutely critical” to the peace process and at certain points “became fundamental to it”.

The plan was drawn up following pressure from Sinn Fein to allow the fugitives, who, had they been in prison before 1998, would have been released under the Good Friday Agreement, to return to Northern Ireland.

An investigation was launched by MPs when the prosecution of John Downey, (inset), was halted after he received one of the on the runs letters in error.

3. Winston Rea and the Boston tapes

LAST week police won the right to listen to taped interviews by loyalist Winston ‘Winkie’ Rea which had been given as part of Boston College’s Belfast Project.

However, the tapes remain secret, for now, to allow for a possible appeal.

Rea is among a group of loyalist and republican former paramilitaries who were interviewed as part of the project.

The accounts were given on the understanding their content would not be made public until after their deaths. During judicial review proceedings last week the court was told an investigation has been launched into serious crimes stretching from the 1970s to the late 1990s.

The alleged offences include murder, directing terrorism, membership of a proscribed organisation and robbery.

An international request for the tapes said police have information Rea was a member of the Red Hand Commando whose interviews would assist investigations into those crimes.

Boston Tapes Lead Researcher Comments On Winston Rea Case

Boston Tapes Lead Researcher Comments On Winston Rea Case
Jason Murdock
Off The Record
27 February, 2015

The PSNI has been granted access to the recordings of former loyalist prisoner Winston Rea, however due to an appeal from Rea’s lawyers to the Supreme Court, the tapes from the Boston College archive will remain secret pending further legal proceedings.

UTV News report that “the tapes will remain in secure storage at the Royal Courts of Justice in Belfast until Rea’s final legal options are exhausted. PSNI detectives had been in court ready to take possession of them in the same bag in which they were brought back from the United States. Rea was among dozens of loyalists and republicans who provided testimonies to Boston College researchers compiling an oral history of the Northern Ireland conflict”

I contacted the former Lead Researcher of the Boston College’s ‘Belfast Project’, Anthony McIntyre, who alongside journalist and Project Director Ed Moloney, set out to compile an oral history of the Troubles in Northern Ireland. The project featured oral testimonies from both loyalists and republicans with the assurance that the recordings would not be released until the subject had passed away. Mr Moloney previously wrote about his time with the project on Off the Record here.

Mr McIntyre told me the judicial decision was “no surprise”.

“Again it shows the extent to which the PSNI is a player in thwarting truth recovery by its manipulation of the legal process to restrict the emergence of truth by hounding those who might come forward with it. I would describe the PSNI stance as one of prosecuting truth rather than procuring truth. Where it does seek to procure truth it does so in a very limited and partisan fashion, concentrating on non-state actors and shielding state actors.”

When asked about what is likely to happen next Mr McIntyre said that “the ball is out of our court”.

“If the cops decide to charge Winkie Rea or even arrest him to balance up the political stunt they pulled with Adams, it will add to what is already a diminution in confidence in policing and justice within loyalism.

I think the role of Relatives For Justice in seeking to attach itself to the PSNI attempts to secure the Rea interviews will enhance the feeling within loyalism that the legacy issue is very much a political football used for recrimination rather than reconciliation.

These are all destabilising particles being sprayed over the political atmosphere which serve only to pollute rather than purify.

How they settle or what they form into is beyond my predictive powers. There is nothing to suggest they will reach a point of critical mass but they help maintain the simmer for no societal advantage that I can see. But the penumbra that emits from them more resembles crisis building measures than Confidence Building Measures.”

Speaking at the hearing on Friday, Lord Justice Coghlin affirmed that the tapes will remain secret until Mr Rea’s legal options run out, saying “there will be an order that the materials are not disclosed to the PSNI, and be kept where they are at the minute in a secure place in this building.”

What is the Boston College Belfast Project?

The project, launched in 2001, set out to record the oral history of the Troubles in Northern Ireland. It featured testimonies from both loyalist and republican paramilitaries about their roles during this dark time in Northern Ireland’s history. The initial deal was that these testimonies were to be kept secret until those involved had passed away. After the death of former IRA commander Brendan Hughes the content of his recordings came to light via books and documentaries. They implicated Gerry Adams in events including the death of ‘the disappeared’ Jean McConville. The PSNI engaged in a long court battle to gain access to the recordings and this eventually led to the arrest of Mr Adams just before the 2014 local and European elections. The Sinn Féin President was released without charge.