Appeals court hears case of secret IRA tapes

Appeals court hears case of secret IRA tapes
By DENISE LAVOIE, AP Legal Affairs Writer
Associated Press

BOSTON (AP) — Former Irish Republican Army members whose interviews were recorded for a Boston College oral history project face grave physical danger if the recordings are turned over to British authorities and used in prosecutions, a lawyer for a former IRA member who conducted the interviews argued Wednesday.

The arguments came during a hearing before the 1st U.S. Circuit Court of Appeals, which is being asked to decide if the secret recordings should be given to police in Northern Ireland.

The recordings were made between 2001 and 2006 as part of an oral history project that participants say was supposed to be kept secret until their deaths. The project is intended to be a resource for journalists, scholars and historians studying the decades-long conflict in Northern Ireland.

But Northern Ireland police probing the IRA’s 1972 killing of a Belfast woman want access to the interviews for their investigation.

U.S. District Judge William Young ruled that Boston College must turn over interviews with convicted car bomber Dolours Price. The college initially fought subpoenas issued by U.S. prosecutors for the recordings, but did not appeal Young’s ruling on the Price recordings.

Anthony McIntyre, a former IRA member who conducted the interviews, and Ed Moloney, an Irish journalist who directed the project, filed a lawsuit challenging U.S. authorities’ decision to subpoena the records.

In court Wednesday, the men’s lawyer, Eamonn Dornan, said McIntyre and the other IRA members who participated in the project face “the real risk of physical harm” if the recordings are turned over. He said McIntyre has already been branded as an informant by some factions in Northern Ireland and could face an attack if the interviews become public.

Dornan also argued that if the recordings are turned over, it will ruin the Northern Ireland oral history project and have a chilling effect on other academic research projects.

“There’s no question it will be destroyed if any material is released from that archive,” he said.

Assistant U.S. Attorney Barbara Healy-Smith argued that Young dismissed the lawsuit filed by McIntyre and Moloney, finding that their interests were adequately represented by Boston College.

The justices expressed skepticism that the college has the same interests as participants in the project. Justice Michael Boudin said he found that argument “a little odd,” noting that the college has decided not to appeal Young’s order to turn over the Price interviews.

Healy-Smith said U.S. authorities are bound by a legal assistance treaty with the United Kingdom, which requires the two to aid each other’s criminal investigations.

The court is expected to issue its ruling within three months.

BBC Radio Evening Extra: Andy Martin reporting from Boston

BBC Radio
Evening Extra
Wednesday 4 April 2012

Audio available for 7 days

Seamus McKee (SMc) goes to BBC Reporter Andy Martin (AM) who is reporting live from Boston covering the appeal hearing on the matter of the PSNI subpoenaing records from Boston College’s Oral History known as The Belfast Project. Ed Moloney (Ed) is interviewed both on tape and live.

5:14 PM

Seamus McKee (SMc): Let’s go to Boston. The appeal to block the hand-over of secretly recorded interviews with former IRA members is just finished. The PSNI’s attempting to get an American university to hand-over transcripts of the interviews conducted as part of The Belfast Oral History Project. Andy Martin’s outside that court room in Boston. What happened in court, Andy?

Andy Martin (AM): Well I have to say, Seamus, that the Attorney General’s representative who is trying to obtain the Dolours Price (interview) on behalf of the PSNI got a hard time from three federal court judges. Ed Moloney has just emerged from the court, he was the director of this project; he was the person behind it, the writer and journalist obviously, who dealt with a lot of security issues in Northern Ireland over the years. He’s making a statement to the press at the moment.

I can tell you that Anthony McIntyre, Dr. Anthony McIntyre, who was the lead researcher in terms of those Republicans who were interviewed as part of this project, his wife emerged from the court in tears. She said that she was delighted. She thought the argument had gone exceptionally well.

And I have to say that was reflected in what happened during the proceedings today.

The attorney on behalf of the researchers put forward his case; he was questioned once or twice by the three judges. And then the Attorney General’s representative stood up. She made her case and she was questioned at length by the judges; some of whom didn’t seem to be shy about showing that they didn’t appear to agree with what she was saying. The basis of the case of the researchers is very much that they feel that their lives will be at risk if the tape recorded with Dolours Price is handed over to the British authorities and to the PSNI.

They say they will be branded thereafter as informers as having handed over information relating to the IRA and that their lives and their families’ lives are in severe danger.

SMc: Andy, I believe that you have Ed Moloney with you.

AM: He’s just doing a press conference at the moment. Although, if possible, I would like to play you a clip of what he told me yesterday. Interestingly, throughout this case it has seemed almost inconceivable that this interview could lead to any prosecution. The Dolours Price interview is important because she was a close associate of Gerry Adams, the Sinn Fein president, she was a friend of his. And she spoke apparently to the Boston College about Gerry Adams’ role, that she alleged in the IRA, something that Gerry Adams has refuted strenuously. She said she has taken part, apparently she said to a newspaper, that she had taken part in the disappeared ; that was the abduction, murder and secret burial of nine people by the IRA and she said that Gerry Adams had been her Commanding Officer. That is why the PSNI are so keen to get her recorded interview.

Now I asked Ed Moloney yesterday where this case was going, what the possible outcomes would be and I put it to him that it was virtually inconceivable that there would be any political will to prosecute Gerry Adams and this is what he had to say:

Ed Moloney (EM): (on tape from yesterday) Well, one of the outcomes will be that, one way or another, I think it’s very likely that Gerry Adams will end up in a court, somewhere. Whether this (will) be a criminal court or a civil court….I don’t know. I suspect it would be the latter rather than the former. I don’t think that criminal charges be sustained on the basis of what is know in the public arena about this case. But the civil case is very certainly a possibility.

The family of Jean McConville have already announced, they announced way back in February of 2010, that they would try to sue Gerry Adams in a civil case.

If the police get hold of this material they are morally obliged, as they were in the Omagh case, to hand over this material to a family in that situation so that they could use it in a court case. And PSNI people will have to give evidence in court about it.

The standard of proof in a civil case is much lower than in a criminal case and I think it will be very tempting for people who have no time for Gerry Adams to go down that road.

SMc: That was Ed Moloney speaking yesterday. Thanks, Andy and we hope to hear from live from Ed Moloney a little later.


SMc: And we’ll have more sports very shortly meantime, we’re back in Boston where the appeal to block the hand-over of secretly recorded interviews with former IRA members has just finished. The journalist Ed Moloney is outside the courthouse. Good Evening!

EM: Good Evening Seamus. How are you?

SMc: I’m well. How do you think this went?

Ed: It was a very interesting day. Our attorney, Eamonn Dornan, who’s from Castlewellan incidentally, put in a magnificent performance; asked only one or two questions by the judges. When it came to the US Attorney’s turn to give her presentation to the court she was peppered with questions, sometimes quite skeptical questions, by the judges throughout the entirety of her presentation. In some ways it was quite astonishing to see this happen.

It has raised our hopes but we’re also trying to be very cautious about this because events inside a court room don’t necessarily indicate what their final verdict is going to be.

Put it this way: we came out of that court room, most of us, with smiles on our faces.

SMc: What argument was the Attorney General making?

EM: Basically that it was justified that we, that is myself and researcher Anthony McIntyre, had been turned down by the lower court here in Boston, in our attempt to represent ourselves separately from Boston College, who, if I can remind your listeners, have actually effectively withdrawn from this case and decided not to appeal the substantive judgment against them which was to hand-over the interviews.

We intervened at that point.

And her basic case was just a repetition of what the US Attorney’s office has been saying all along which is that the lower court judge said this therefore it’s okay.

But judging by the questions that were coming from the bench, I don’t think the judges were entirely convinced by that.

SMc: What questions did they have?

EM: They were asking questions like…one of the arguments that’s been put forward by the US Attorney’s office is that Boston College adequately represented our interests. The one question that actually brought a ripple of laughter in the court room came from one judge, one of the appeal judges, who said: Well, in that case, if Boston College adequately represented the interests of Mr. Moloney and Mr McIntyre, why aren’t they in the court room here today in this appeal?

And the government attorney really didn’t have much of an answer for that.

SMc: Ed Moloney, in Boston. Thank you very much

6:33 PM

Federal appeals court hears arguments in case of BC oral history project on ‘Troubles’ in Northern Ireland

Federal appeals court hears arguments in case of BC oral history project on ‘Troubles’ in Northern Ireland
By Martine Powers
Boston Globe
APRIL 04, 2012

Attorneys representing the US government and two researchers debated in federal appeals court today whether the potential danger of releasing confidential interviews with former members of the Provisional Irish Republican Army should trump the need to comply with an international treaty on criminal investigations.

The taped interviews are part of the Belfast Project, a Boston College oral history project to document the period of conflict known as The Troubles in Northern Ireland.

Researchers Anthony McIntyre and Ed Moloney guaranteed interview subjects that the recordings would remain secret until each interviewee had died, but in July, federal prosecutors asked BC to turn over the records to aid in an investigation by the British government into the death of Jean McConville, a Belfast mother of 10 who disappeared in 1972 and whose body was recovered in 2003.

In December, US District Judge William G. Young ordered Boston College to turn over the interviews to the government.

At issue in court today was whether the order for the tapes’ release should stand, and also whether the two researchers have legal standing to argue their case separately from Boston College.

Eamonn Dornan, an Ireland attorney representing the two researchers, contended that his clients and their families would be in great personal danger if the tapes were released to the British government.

Dornan also argued that his clients had the right to defend their research from subpoena in court — a right that has previously been denied to them in lower court.

“Boston College has institutional concerns, but the stakes for my clients are unimaginably higher,” Dornan said.

The future of academic research projects like this one, he said, was also at risk.

“Why should a foreign government have more freedom to access confidential, sensitive information here in the United States more than a US citizen?” Dornan said.

Barbara Healy Smith, the attorney representing the US government, argued that the researchers are not guaranteed the right to keep their research private — just as journalists are not exempt from naming a confidential source if subpoenaed.

Smith’s arguments were frequently interrupted by the three judges, who asked why the need to comply with an international treaty on criminal investigations trumps the US government’s responsibility to protect the safety of the researchers and their families.

After the hearing, McIntyre’s wife, American-born Carrie Twomey, said that she lives in fear that a member of the paramilitary group will take vengeance against herself or her family.

“It’s been a complete nightmare, one that we don’t ever seem to be able to wake up from,” Twomey said.

IRA tapes row back in US court

IRA tapes row back in US court
Published Wednesday, 04 April 2012

A federal appeals court in America will hear arguments on Wednesday over whether the PSNI can seize interviews given by ex-IRA members to Boston College.

The interviews with former Loyalist and Republican paramilitaries were conducted as part of the college’s oral history project which began in 2001.

They were recorded on condition that they would not be published until those involved were dead.

The PSNI want the transcripts of an interview given by former IRA prisoner Dolours Price in which she is understood to have discussed the 1972 disappearance and killing of Jean McConville. She gave the interview to Republican writer Anthony McIntyre.

Author and researcher Ed Moloney, whose discussions with the late Brendan Hughes and David Ervine formed his book Voices from the Grave, said the interviews were only carried out on the basis that it was legally safe, and the subjects had a “pledge of confidentiality [that] is utterly non-negotiable”.

Speaking to UTV in January, he said: “We’re reassuring them that if there is any attempt to groom any of us into any sort of criminal process by the PSNI, or whoever is behind this, then they can go and knock on other doors because they’re going to get no satisfaction and no joy from us.

“Our cooperation with the authorities on this will be non-existent and zero,” he added.

Mr Moloney said the action taken by the PSNI has “destroyed all possibility now of any truth-telling process”.

“There is no way that anyone with sane mind is going to take part in any sort of process of truth recovery about the past while the PSNI are behaving like this.”

Explosive Troubles interviews set to surface?

Explosive Troubles interviews set to surface?
By Andy Martin
BBC News

In the bowels of the Burns library at Boston College, some of the most interesting secrets of the peace process, and the violence that preceded it, are held in secure storage.

Among the documents are the details of what happened during the decommissioning process.

The British and Irish governments agreed that Boston College, with its enduring interest in Northern Ireland, would be a suitable and safe long-term repository for the controversial papers.

Also held there are a series of candid, confessional interviews with former loyalist and republican paramilitaries, in which they chronicle their involvement in the Troubles, and name names.

The ‘Belfast Project’, was designed to become an oral history of the Troubles, directed by the writer and journalist Ed Moloney, with the interviews carried out by two researchers.

Loyalists were recorded by Wilson McArthur, republicans by the former IRA prisoner Dr Anthony McIntyre, who has since become a writer and academic.

The deal was this: The former terrorists would tell their stories in secret, on the understanding that the recordings and transcripts would only be made public after their deaths.

Their testimonies, according to Boston College, would serve as a historic tool from which the mistakes of the past could be better understood.

Two of those interviewed, David Ervine of the Progressive Unionist Party, and the former IRA Commander Brendan Hughes have since died.

Their stories formed the backbone of a book by the project director, Ed Moloney, and of a television documentary.

In those Hughes made some frank admissions.

He said that he had organised ‘Bloody Friday’, the day on which the IRA detonated over 19 car bombs in Belfast in the space of an hour.

Nine people were killed, 130 were injured. Images of police officers shovelling the mutilated bodies of the victims into bags are some of the most enduring of the Troubles.

Hughes also spoke of his once close friend, the Sinn Fein leader Gerry Adams.

Hughes named him as overall commander of the IRA’s Belfast brigade.

He also claimed that Mr Adams had controlled his own squad within the IRA, known by the organisation as “the unknowns”.

This, according to Hughes, was the group responsible for the ‘Disappeared’, those who were kidnapped, murdered and secretly buried by the IRA.

Mr Adams has strenuously denied the claims, and has pointed out that he and Brendan Hughes came to differ on the route Sinn Fein was taking.

In the latter years of his life Hughes had become an ardent critic of his former friend.

However, another former IRA member later gave an interview to a newspaper journalist, in which she admitted that she had also taken part in the ‘Belfast Project’.

Dolours Price had been one of the IRA gang that blew up the Old Bailey in 1973.

In that interview, she allegedly claimed to have been the person who drove one of the Disappeared to her death in 1972.

Jean McConville was a west Belfast-based mother of 10, who had been accused by the IRA of passing information to the British.

Her remains were found buried on a beach in the Irish Republic, 30 years after she went missing.

The Police Service of Northern Ireland says that it has re-opened the inquiry into Mrs McConville’s murder, and on that basis is seeking the transcripts of the interview Dolours Price apparently gave to Anthony McIntyre and Boston College.

Initial court decisions in the United States have accepted the PSNI’s interest as legitimate, and the tapes of the Price interview and seven others deemed pertinent to an investigation into the disappeared are now in the hands of the US federal court.

On Wednesday, Dr McIntyre and Ed Moloney will make their final arguments to three appeal judges in a bid to have those interviews withheld from the police.

They say that it breaches the agreement struck with the interviewees, that it is a violation of their right to protect their sources, and that any hand-over of the material will place them in danger of attack by republicans.

Boston College is also appealing the decision to hand over the tapes, but separately.

The college says that it has no grounds to protect the anonymity of Dolours Price, given that she effectively ‘outed’ herself in the newspaper interview.

In June, Boston College will however try to stop the handover of seven other IRA interviews, querying their value to any investigation into the disappeared.

All of this has led to a bitter dispute between the researchers on the project, and the college, both of whom accuse the other of bad faith.

Boston College says that it agreed to protect the interviewees as far as the law would allow, and that Dolours Price exhausted their ability to do so by her admissions.

Ed Moloney and Anthony McIntyre feel that Boston College folded without a fight, and that they have been let down by their former employers.

For his part Mr Adams insists he has nothing to fear from any disclosure, and denies all of the accusations levelled at him.

Researcher faults BC over Belfast project

Researcher faults BC over Belfast project
By Mary Carmichael
Boston Globe
April 04, 2012

Facing a court appearance Wednesday that could be his last hope for resisting a British subpoena of secret interviews with Irish paramilitaries, the researcher at the center of the Boston College Belfast Project drama blamed the school for the mess because it broke a contractual obligation to convene an oversight committee for his work.

The researcher, Ed Moloney, said such a panel could have helped him try to shield the confidential interviews from the British government, which is seeking the material as part of its investigation of a 40-year-old murder case. Moloney and his Irish research partner, Anthony McIntyre, fear violent reprisals if the interviews are turned over to British police.

The university confirmed Tuesday that the promised oversight committee never met. But it said Moloney, in turn, is at fault because BC assumed, per his employment contract, that he would warn his interview subjects that their confidentiality could be compromised in court.

Academics, college administrators, and civil libertarians worldwide are watching the case because of its implications for researchers trying to pursue sensitive projects without government interference.

“This is the most important case there has ever been on research confidentiality,’’ said John Lowman, a Canadian specialist on academic protocols.

The subpoena has provoked such acrimony that reconciling the parties may require its own peace accord.

The sticking point is whether school administrators should risk fines or jail to protect oral history interview subjects, as journalists sometimes do to shield their sources.

BC librarian Robert O’Neill appeared to take a stand on that issue in 2000, writing to Moloney that the school could not guarantee “that we would be in a position to refuse to turn over documents on a court order without being held in contempt.’’

But McIntyre said O’Neill told him the next month that BC would not accept interview materials “unless they were absolutely certain there would be no legal repercussions for the interviewees.’’

Moloney maintains that BC should have done more to make its legal limitations clear and that he would have treated sources differently if it had done so.

Some BC professorsbelieve the accusation has merit. Last month, 55 of them petitioned BC’s president to formally investigate the way it handled the project, a series of interviews with 26 Irish paramilitary fighters.

“It seems to have had very little oversight, and we want to know why,’’ said Marilynn Johnson, a history professor who wrote the petition.

The school’s dean of arts and sciences is expected to tell the professors this week that the university’s legal counsel has examined the project within the last month and concluded it did not need the approval of an institutional review board.

If the project were initiated today, though, BC might act differently, a BC spokesman said Tuesday.

“The Belfast project has likely changed how oral history projects will be conducted moving forward,’’ said spokesman Jack Dunn, stressing that he was referring not just to BC but to schools in general. In particular, he added, colleges “will be reluctant to record oral histories in nations’’ with treaties requiring them to legally assist other countries.

That could have a chilling effect on scholarship, said Harvey Silverglate, a prominent civil liberties lawyer: “What is astonishing to me is that BC chose not to defend its scholar from the beginning. What is an institution for?’’

The controversy began last summer when the British government demanded to examine the interviews, which were meant to remain confidential until after the subjects’ deaths.

BC initially agreed to turn over two interviews: one with a subject who had died and another with a subject who had revealed some of the information to an Irish newspaper.

The university is now fighting an order to release parts of seven other interviews a judge has deemed relevant to the 1972 abduction, killing, and secret burial of Jean McConville, a Belfast mother of 10.

But BC is also fighting Moloney, who has been unrelenting in his criticism.

The university and Moloney parted paths shortly after the subpoena last year, when BC’s lawyer sent Moloney an e-mail advising him that “my keeping you informed about developments in the case is with your agreement that you will not go to the media about the information.’’

An incensed Moloney responded by contacting reporters.

Since then, two major issues have arisen. The first centers on Moloney’s employment contract, which calls for a committee of three specific individuals “to assure that the strictest standards of historical documentation are to be followed.’’

Though the committee never officially met, Dunn said its members consulted each other informally.

Some outside observers said no advisory board could have prevented the contretemps because there is no legal way to ensure the confidentiality of most academic research.

“The idea that an institutional review board would have prevented this is ludicrous,’’ said Donald Ritchie, the US Senate historian. “If anything, a board would have just said, ‘Don’t interview anybody,’ and thrown the scholarship out the window.’’

The second point of contention is who bore ultimate responsibility for warning the interview subjects their confidentiality might not stand in court.

John Neuenschwander, a leading specialist on oral history and law, said both parties could ultimately be at fault. One thing is clear, he added: “Somebody missed a step here.’’

Wife of ex-IRA member key force in BC tapes case

‘This is my family,’ woman says in IRA tapes fight
Former IRA member’s wife adds key voice to chorus seeking to block release of interview tapes
Washington Post
AP Legal Affairs Writer
Tuesday, April 3, 4:25 PM

BOSTON — An attempt by British investigators to get recorded interviews with former members of the Irish Republican Army has turned into a complicated court battle. And for Carrie Twomey, the legal fight is personal.

She’s the wife of Anthony McIntyre, a former gunman for the IRA who conducted the interviews for an oral history project at Boston College. Twomey has played a key role in trying to sway U.S. politicians that turning over the recordings could endanger her family.

“This isn’t just some dusty old papers in a library,” Twomey says. “This is people’s lives. This is my family.”

Twomey has managed to get backing from some powerful people. Seven U.S. politicians, including Sens. John Kerry of Massachusetts and Charles Schumer of New York, have written letters to Secretary of State Hillary Rodham Clinton and U.S. Attorney General Eric Holder urging them to persuade British authorities to withdraw their request for the recordings.

McIntyre and Irish journalist Ed Moloney, who directed the project, are asking a federal appeals court to block the handover. Arguments are scheduled Wednesday before the 1st U.S. Circuit Court of Appeals in Boston.

The history project, which began in 2001 and was completed in 2006, is intended as a resource for journalists, scholars and historians after the death of the participants. But Northern Ireland police probing the IRA’s 1972 killing of a Belfast woman want access to the interviews for their investigation.

Moloney says the recordings are explosive enough to damage Northern Ireland’s unity government, in which Sinn Fein represents the Irish Catholic minority. Its stable coalition with the British Protestant majority is the central achievement of the 1998 U.S.-brokered peace accord.

Moloney has said that the interviewees include many IRA colleagues of Sinn Fein leader Gerry Adams and that public release of the testimony could lead to a victims’ lawsuit against Adams, the conflict’s leading guerrilla-turned-peacemaker.

Twomey worries her husband and other former IRA members could be attacked or killed if the recordings are turned over and then used in prosecutions. Some in Ireland have already branded her husband as a “tout,” an informer, because of his role in the Boston College project, she says.

“My husband isn’t an informer, nor are the people who participated in this project — it’s a history project — but police using it as evidence, that changes it dramatically and makes it very dangerous,” says Twomey, 41.

“Traditionally, the penalty for informing is death.”

Twomey grew up in southern California. She met her husband about 12 years ago after reading critical commentary he had published on the way the peace process was being managed and wrote him a letter. They’ve been married for almost 10 years and have two children, an 11-year-old girl and a 6-year-old boy.

McIntyre spent 17 years in prison for killing a Protestant militant in a 1976 drive-by shooting.

The couple initially lived in West Belfast but moved to the south five years ago when McIntyre found a job in construction in Drogheda. McIntyre, who left the IRA when the 1998 Good Friday agreement was signed, said their neighbor’s house in Drogheda was smeared with pig excrement in 2010, after portions of the memoir of former IRA member Brendan Hughes — one of the people McIntyre interviewed — were published in a British newspaper.

The vandals probably meant to send him a threatening message but got the wrong address, McIntyre says.

“Carrie wasn’t involved in the project, nor were our children,” McIntyre says. “Her fear and my fear, too, would be the morphing of research into evidence substantially changes the ballgame and would open up the possibility of an attack.”

Twomey’s husband is not allowed to travel to the United States because of his IRA conviction. So for the past three months, she has shuttled between the United States and Ireland, hoping to pressure the U.S. government to drop the bid to turn the recordings over to Northern Ireland police investigating the IRA’s killing of Jean McConville, a mother of 10 who had been branded as a British Army spy by the IRA.

Kerry and other U.S. politicians say they are concerned that release of the recordings could undermine peace in Northern Ireland.

“It would be a tragedy if this process were to upset the delicate balance that has kept the peace and allowed for so much progress in the past fourteen years,” Kerry wrote in his Jan. 23 letter.

Prosecutors declined to talk about the case before Wednesday’s hearing.

In an interview in January, Assistant U.S. Attorney John McNeil said American authorities must provide IRA testimony about McConville’s killing to British authorities as part of treaty commitments to aid each other’s criminal investigations.

“The UK is investigating serious crimes: murder, kidnapping, McNeil said. “The court has already found that it’s a bona fide investigation and that there’s no other source for this material.”

McIntyre and Moloney say Boston College promised the interview subjects strict confidentiality until their deaths, while Boston College officials say they made it clear they would protect the confidentiality only to the extent allowed under U.S. law.

Boston College initially tried to quash subpoenas from U.S. prosecutors seeking the recordings but later decided not to appeal a judge’s order to turn over the interviews of convicted car bomber Delours Price. The same judge dismissed a separate lawsuit by Moloney and McIntyre.

Spokesman Jack Dunn said Boston College decided not to appeal because Price had given a widely distributed newspaper interview in which she implicated herself and Adams in McConville’s abduction and murder. Adams has denied that.

Hot Pursuit

Hot Pursuit
Chris Bray

I accuse you of murder! And I will not rest until I bring you to justice! But, anyway, you’re free to leave. No big deal.


On Wednesday, federal prosecutors will walk into an appellate court in Boston and tell a panel of judges that they are seeking evidence in an exceptionally serious crime, the murder of a widowed mother of ten who was taken from her home in Belfast and shot in the back of the head by members of the Provisional IRA. Because they are aiding police officials in the United Kingdom with such an important investigation, they will sound a note of urgency: The matter before the courts must be brought to a conclusion, because murderers must be brought to justice.

They will be full of shit.

There was a murder, and it was awful. A widowed mother was killed, and ten children were left with no parents. But is there a murder investigation underway? Is the Police Service of Northern Ireland working to bring killers to justice?

I’ve said before that you should start thinking about this claim from the moment in 1972 when McConville was taken from her home to be killed. What then? Nothing much. The police have acknowledged that they didn’t try to solve her murder until the 1990s, and even then they didn’t try especially hard, and then finally they admitted that they probably weren’t going to make a case in such an old murder that would survive in a courtroom. Now it’s 2012, and there’s somehow a serious criminal investigation underway.

But this time, let’s start the story somewhere else: February 21, 2010. That’s the date a newspaper in Northern Ireland printed a story alleging that former IRA member Dolours Price — as the paper soberly put it, a “TERRORIST IN A MINI-SKIRT” — had admitted that she drove McConville to her death. Not only that, added the Sunday Life, but she was known to have told the story to researchers at “Boston University,” which is a solid fifty percent correct. (The story isn’t online at the newspaper’s website, but you can see page scans here.)

And so the Police Service of Northern Ireland, alerted to the confession of an accomplice to murder, came roaring to life and began their desperate quest to win justice in the case of Jean McConville. Game on — justice was awake and on the hunt. The first set of interviews Boston College will potentially give up to the government when the legal appeals are over are the interviews conducted with Dolours Price. Her newspaper confession is bringing the day of legal reckoning ever closer. The newly tireless detectives have almost got their target.

There are just a few problems with that picture, and start with the fact that the Sunday Life story ran more than a year before anyone got around to asking for subpoenas of the Boston College material. Think about this: A newspaper said on February 21, 2010, that a particular person had driven a murder victim to her death, and that there was more information available in a university archive. The first subpoenas arrived at the university archive in May, 2011. You can almost taste the urgency.

Better yet: In August, 2010 — several months after the Sunday Life story named her as an accomplice in Jean McConville’s murder — Dolours Price was in a courtroom in Northern Ireland, facing criminal charges. Here’s the story on the BBC website. Having confessed to her role in the McConville murder in a published interview, causing the police in Northern Ireland to lock onto her with their laser focus and their passion for justice, Price found herself in the hands of the criminal justice system in the very place where she was known for her role in an infamous political killing. They had her, in the flesh, the IRA terrorist who named Gerry Adams as her commander in a murder she had directly facilitated.

So go read the BBC story. What happened when the woman who drove Jean McConville to her death appeared in a courtroom in Northern Ireland? This: “Convicted Old Bailey bomber Dolours Price has been acquitted of a charge of shoplifting at Newry Magistrates Court.” The end. Terrorist in a mini-skirt!

Months after the Sunday Life story identified Price’s role in McConville’s death, nobody in the criminal justice system in Northern Ireland cared or tried to do anything about it. She went and stood in a courtroom, and no one mentioned the whole “murder of a widowed mother of ten at Gerry Adams’ command” thing. They yawned at her shoplifting charge and sent her home. Because they were so aggressively pursuing it, you see.

In its amicus brief in the legal appeal, the ACLU of Massachusetts charged that the DOJ was facilitating a political investigation, a course that could lead the United States government into ever-more-horrible involvement in appalling political repression overseas. When a foreign government asks for help gathering evidence against political organizations like the IRA, the U.S. government should think carefully about what they’re being asked to do, and the courts should take a close look at the decisions the Justice Department makes.

Here, again, is the government’s most recent brief in the Belfast Project appeal. Look at pg. 57, and let’s go ahead and add emphasis to make this easy:

Finally, nowhere in ACLUM’s argument is there a recognition that a request by a foreign sovereign under a treaty regarding a sensitive and confidential criminal matter is any different than a civil request by a private party in a mundane business matter. ACLUM’s argument, if taken to its logical conclusion, would subject even the most sensitive and urgent law enforcement requests to litigation and delay by persons with a deeply felt, but tangential interest in such a criminal investigation. Under ACLUM’s reading of §3512, criminal defendants in foreign countries, and others who disagree with the foreign policies of the United States, could tie sensitive and urgent international criminal investigations in legal knots

There is no “sensitive and urgent” criminal investigation. The police in Northern Ireland have had forty years to investigate Jean McConville’s murder, and they have not. They had several months between the publication of a story saying that Dolours Price had driven McConville to her death and the moment when she stood in a courtroom and was available for an easy arrest. They had a year to get around to asking for subpoenas of the Boston College interviews.

Someone needs to apply some skepticism to the government’s framing of these subpoenas. Let’s hope the First Circuit manages the task.

The Case for Research

The Case for Research
Boston College’s Defense of the Belfast Project: A Renewed Call for a Researcher’s Privilege to Protect Academia
Frank Murray

Boston College Law Student Frank Murray argues for a Constitutionally rooted researchers privilege in his law review note on the Belfast Project Case. This is a work in progress.

Abstract: Protecting the free exchange of ideas in academia, much like in journalism, has long been considered an American value and anecessary condition for a free and healthy democracy. The importance of academic autonomy, including the processes by which scholars collect, store and exchange information, is correspondingly of great importance to anyone happily living in a free society. Recent efforts by Boston College to fight the Federal government, acting on behalf of the United Kingdom to secure confidential and highly sensitive audio tapes collected and archived as part of an academic study, sheds new light on an ailment in American law. The tremendous legal challenge that Boston College has recently endured in its unsuccessful bid to protect academic sources is not only offensive to our social conscience, but on a more technical level stands in staunch contrast to cutting edge developments in international human rights law. Ironically, the subpoena request from the United Kingdom asks the United States to perform an act that would be of highly questionable legality under European law to which the United Kingdom is bound — Article 10 of the European Convention on Human Rights. If a researcher’s privilege is to be recognized in the United States, it will require the Supreme Court to recalculate, much like European courts have, the great societal value of scholarly research.

Northern Ireland Police Threaten Academic Freedom

Index on Censorship
02 Apr 2012

As a crucial legal battle comes to a head, Anthony McIntyre explores the contempt for academic research and protection of confidential sources behind the courtroom drama

This Wednesday in a Boston courthouse a crucial legal battle will be played out. It is a consequence of the Police Service of Northern Ireland’s (PSNI) contempt for academic research and the protection of confidential sources. While the “troubles” in the North of Ireland may be over for most people, the PSNI is one state agency determined to poke at the hornets’ nest that is the region’s politically violent past. In doing so it displays wanton indifference to the caution urged by amongst others Sir Kenneth Bloomfield, a former head of the Northern Ireland Civil Service and current head of the Independent Commission for the Location of Victims’ Remains, who warned that investigating the past “would blow apart the degree of consensus we have achieved.”

At the heart of the upcoming courtroom drama is an oral history project commissioned by Boston College between 2001 and 2006. Its aim was to enhance awareness of the long running violent political conflict in Ireland. It sought narratives from republican and loyalist activists who could offer unrivalled insight. It promised that all the 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.

The extent to which the PSNI is successful in its attempt to seize academic research will prove ruinous to public understanding of the Northern Irish conflict. It will drain the pool of knowledge that society may draw upon in order to keep itself better informed. The judicial outcome in a Boston courtroom will determine the ability of non-state actors, principally, academics, journalists and historians to collate information crucial to a more rounded public understanding. In the words of a prominent civil liberties lawyer in the US the move “could forever chill groundbreaking and important research.”

As it turned out Boston College, despite being equipped with a law school, was not on firm legal ground in issuing such promises of confidentiality, although nothing it drew up in its donor contract suggested that. Worse still, when it came to the crunch, the college — in an act of institutional deference to authority — was found to be afflicted by a fortitude deficit. In order not to offend the US Justice Department, it moved to abandon its own project, along with the researchers it commissioned and the research participants to whom it had promised the “ultimate power” of discretion over the use of their donations.

In May last year the PSNI applied through the Mutual Legal Assistance Treaty to US authorities to subpoena part of the archive ostensibly as part of an investigation into the 1972 killing and disappearing of Belfast woman, Jean McConville. A killing that the Northern Irish police force in all its guises failed to investigate in almost four decades. Historian Chris Bray, writing in the Irish Times, stated that “quite literally, not so much as a local patrolman ever bothered to type up a pro-forma report on McConville’s disappearance; the filing cabinet was nearly empty.” As a result the suspicion is being aired in many places that the real motivation behind the subpoenas is one meant to embarrass or prosecute Sinn Fein president Gerry Adams who, according to the Irish Times, has been accused by some of the Boston College research participants “of giving the order to kill McConville, a charge Adams categorically denies.”

In this precarious business it has not gone unnoticed that the Police Service of Northern Ireland, under its old name the RUC, was heavily involved in a dirty war often waged in the shadows. Its Special Branch was involved in a range of activities including killings. The Northern Irish police has a long history of torture, abuse and collusion with loyalist death squads. Like the British state it served, it was a key player in the conflict. Very few police members have been brought to book. It is unlikely that they ever will. There is a professed willingness on the part of the PSNI to pursue all leads … except those leading back to the British state.

This flags up one of the murky issues at play in the case. It is the problem of law enforcement agencies being used to prise open a past when much of the problems of the past were caused by law enforcement agencies. Because no law enforcement solution to the conflict was considered possible, a political one was devised that in many senses by-passed law enforcement or relegated in significance its contribution to a solution. The jails previously packed by law enforcement measures were emptied of conflict prisoners as the North marched into the future and away from its past. Now we have law enforcement trying advance its own agenda under the camouflage of “rule of law”, feigning a concern for victims so that it may selectively and tendentiously mine the past.

The PSNI action in seeking access to the Boston College oral history archive, so that it might plunder it for material useful to prosecutions, has serious consequences for the production of knowledge. It is now likely that a diminution in information will flow to journalists or academics for fear that the State might insist on access to what is collated for purposes of criminal investigation. The action throws a chill of censorship over the societal acquisition of vital knowledge. By seeking to colonise academic research for its own narrow objectives, law enforcement is forcing academic study off the field of play leaving our comprehension of the past in the hands of law enforcement which has at all times sought to airbrush its own invidious role out of the historical record. Hardly a satisfactory outcome.

This assault on academic freedom will have a deleterious impact on public understanding and will stymie public debate. As Harvey Silverglate and Daniel R. Schwartz argued in Forbes Magazine “academics play an important role in society for the enlightenment of current and future generations; they are not mere detectives bedecked in tweed and working for governments…”

Anthony McIntyre was one of the Boston College researchers who along with colleague Ed Moloney is currently fighting to have the subpoenas quashed. McIntyre is a former Republican prisoner