Is Ruling Regarding Confidentiality of Belfast Project Interviews Setting a Frightening Precedent?

Note: This article was written in January, 2012.

Is Ruling Regarding Confidentiality of Belfast Project Interviews Setting a Frightening Precedent?
By Rebecca E. Neely
www.lawcrossing.com
Legal Daily News Feature
JANUARY 27 2012

The First Amendment to the U.S. Constitution states:
‘’Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.’’

Have these rights, in fact, been violated, in light of a judge’s decision in recent days to grant the federal government access to interviews, given in coordination with the Belfast Project – an oral history project taking place in coordination with Boston College on sectarian killings and the turbulent time in Northern Ireland – when interview subjects were promised confidentiality? In addition to a violation of rights, could the judge’s ruling put the lives of said subjects, many of whom are former IRA members, in danger, and cause unrest in Northern Ireland?

Interestingly, the case played out at Boston College, as a means of providing an up close and personal learning experience for law students. As part of an agreement U.S. District Court Judge William G. Young – who ruled in the case – has with the school, he occasionally brings the courtroom to the classroom.

Young tossed out the case, finding that the two journalists in the suit did not have legal standing to file the suit. Though Young’s ruling proved to be a victory for U.S. prosecutors, it may be short lived; a federal appeals court will probably have the final say about whether police in Northern Ireland can have access to the interviews.

Here’s the background: the British government wanted the interviews, and said it had a right to them, according to a treaty with the United States, which permits information to be shared that would help with a criminal investigation. Said investigation pertains to the killing of Jean McConville, a mother of ten who disappeared in 1972 and whose body was recovered in 2003.

Former IRA member and Belfast Project interview subject Dolours Price said Gerry Adams, the leader of Sinn Fein, ordered the abduction and murder of McConville. Sinn Fein at one time served as the political arm of the IRA.

Judge Young previously ruled the interview materials to be released. However, journalists Anthony McIntyre and Ed Moloney, who’ve coordinated and managed the Belfast Project, were able to stop the materials from being given to the British government after seeking a review by the U.S. Court of Appeals for the First Circuit.

In addition, the journalists filed another federal complaint against the U.S. government, saying releasing the information would violate their First Amendment rights as it related to conducting the academic work, and it could potentially lead to further political unrest in Northern Ireland. As well, they believe McIntyres could be in danger, as he lives in that part of Ireland, and because he’s been threatened before.

Spokesman for Boston College, Jack Dunn, said lawyers are considering whether they will appeal Young’s latest ruling. He explained that Boston College does not agree with releasing the academic work; however, the school also said it had made it clear long ago that any confidentiality promised by the journalists was limited by what U.S. law allowed.

And to put a face on the ruling: Carrie Twomey, American wife of Anthony McIntyre, a former IRA member who worked on obtaining the interviews, was quoted as having told The Associated Press, in regards to the information being released: “He’s putting my family’s life in danger. Boston College are cowards.”

Boston College’s stance seems ‘wishy washy’ at best. It appears the ruling, if left unchallenged, and un-appealed, could set a frightening precedent. That peoples’ lives could be in danger, as well, that First Amendment rights may have been violated, demands swift action.

Belfast Project Case Shows the Need for First Amendment Consistency

Belfast Project Case Shows the Need for First Amendment Consistency
Harvey Silverglate, Contributor
Injustice Department
Forbes

The great First Amendment advocate Nat Hentoff wrote a terrific book in 1992 entitled Free Speech for Me—But Not for Thee. It pointed out the short-sightedness of those who advocate for their own rights but fail to see that unless rights are uniformly applied across the board, they aren’t worth much. I thought about Hentoff’s felicitous title when contemplating the still lumbering litigation in Boston federal court concerning the right—or not—of two scholars to keep their controversial but historically invaluable trove of interview tapes from the hands of prosecutorial authorities.

On July 23 “Injustice Department” discussed the plight of Ed Moloney and Anthony McIntyre, the two scholars employed by Boston College to produce the Belfast Project, an oral history of the Irish “Troubles.”

The piece lamented BC’s decision to hand the project’s transcripts over to U.S. District Judge William Young for in chambers review, thus denying the scholars an opportunity to commit an act of civil disobedience to protect their sources (and themselves). BC’s actions amounted to a dereliction of its duty to defend the scholars’ promises of confidentiality, for even if the institution was unprepared to risk the penalties for disobedience to a court order, the individual scholars likely felt differently. At the very least, the scholars should have been allowed the opportunity to risk violating the court order to hand over the transcripts so as to protect what they viewed as sacred moral values and essential professional obligations. They were not given this option. (BC’s failure in this regard seems particularly puzzling and egregious, given that it is both a liberal arts and a Jesuit institution. Both intellectual strands have long histories of fidelity to matters of conscience.)

Left inadequately explored, however, was the history and nature of the “scholar’s privilege”—akin to the better-known “reporter’s privilege”—unsuccessfully invoked by Moloney and McIntyre, which the local press seems to have completely misunderstood and, indeed, trivialized.

The press, and most everyone else, failed to recognize that the Belfast Project case sets a dangerous precedent for reporters and scholars alike, because the scholar’s privilege is inextricably linked to the reporter’s privilege: as goes one, so goes the other. The only real difference, after all, between journalists and scholar-historians is that the former write the first draft of history, while the latter write the second. That distinction is not significant enough to justify a difference in the legal treatment of these two professional groups.

The obvious similarity between reporters and scholars is what makes, for example, The Boston Globe’s unsupportive editorial coverage of the Belfast Project case so peculiar. With source confidentiality beleaguered in both academia and journalism, and with the Globe’s parent paper, The New York Timeseffusively praising the principled stands its own reporters occasionally take to protect their confidential sources, one would expect the Globe to be a bastion of support for the BC scholars.

Yet in a recent unsigned editorial, which was followed the next day by an equally ill-advised Op-Ed piece by Juliette Kayyem, the Globe took to criticizing Boston College for not “institutionalizing appropriate oversight of its research,” arguing that the scholars “should not have promised full confidentiality to former Irish Republican Army members who were subjects in an oral-history project.” Apparently the Globe editorial staff did not realize that the BC scholars they so readily criticized were relying on the same privilege that Globe and Times reporters frequently invoke and occasionally go to jail to defend. (Indeed, the only friend-of-the-court brief filed in the BC case in support of the claim of a scholar’s privilege came from the ACLU of Massachusetts. Not a single newspaper, media outlet, press association, or academic institution was to be seen or heard by the court.)

The reporter’s privilege has a controversial recent history. In 1972, eight justices of the United States Supreme Court split down the middle on the question of whether New York Times reporter Earl Caldwell could assert the First Amendment as the basis for a reporter’s privilege to refuse to turn over notes and recordings of highly sensitive interviews he conducted in his journalistic examination of the sometimes violent Black Panther movement. The high court’s impending 4-4 voting tie in the case, Branzburg v. Hayes,was broken by a somewhat oracular concurring opinion from Justice Lewis Powell, who, while refusing to grant an absolute and unequivocal reporter’s privilege, said that a judge nonetheless should balance the legitimate interests of law enforcement against those of the newsman “on a case by case basis.”

Since it was essential to the resolution of the privilege question by a 5-4 vote, Justice Powell’s concurring opinion has long been seen as establishing the controlling test for a federal court trying to decide whether to enforce a subpoena served on a journalist: “if a newsman believes that the … investigation is not being conducted in good faith,” or “if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement,” he or she can ask the court to quash the subpoena for his or her materials.

In the Belfast Project/Boston College case, no such hearing was conducted at which the scholars would have been afforded adequate opportunity to question either the good faith needs or the legitimacy of the Northern Irish investigation. The court, which very early in the litigation was already in possession of the contested interview materials (having been provided them by the BC legal team for private in-chambers review by the district court judge), had no incentive whatsoever to grant the scholars any opportunity to engage in such a searching inquiry. The scholars, in other words, had lost whatever leverage and option they would have had were the materials solely in their hands, rather than the judge’s. (BC is contesting a second subpoena for still other tapes. Arguments have not yet been scheduled by the Court of Appeals.)

The lack of such an inquiry is particularly alarming in this case, because the interests of the BC scholars go well beyond the typical case of a scholar who sees a professional need to resist a subpoena in order to protect the reputation or privacy rights of those who sit for interviews. The Belfast Project scholars could have made a compelling case on the witness stand -— as they attempted to do in affidavits they futilely filed with the courts in the initial case where not even BC contested the subpoena -— that turning over the interview tapes to the Northern Irish police might pose a threat to the lives of both the scholars and those who sat for interviews. There is, after all, a long history of the more fanatical combatants in the Troubles resorting to assassination of those seen as “informants.” (In fact, the authorities seeking the Belfast Project’s documents reportedly are investigating the long-ago murder of a suspected informant.) The dire situation Moloney and McIntyre now face is analogous to that previously faced by the Times’ Earl Caldwell -— or any reporter seeking to shed light on the hidden underbelly of society -— and makes obvious the necessity of protecting source confidentiality in cases presenting exigent circumstances such as those found here.

And while neither a reporter’s nor a scholar’s privilege is very clearly defined or established in the law, there is considerable legal support for both reporters and scholars in a factually appropriate case. In particular, First Amendment protection of newsmen and scholars has enjoyed some considerable support in the federal courts in Massachusetts since the Supreme Court decided Branzburg in 1972. In 1998, for example, Microsoft Corporation found itself defending against civil anti-trust allegations brought by the Department of Justice in connection with the company’s tactics in winning the “browser wars.” The company tried to subpoena the files of two Massachusetts-basedscholars -— one from Harvard Business School and one from MIT’s Sloane School of Business -— who had studied and were writing about the issue. The battle over the enforceability of Microsoft’s subpoenas thus was fought out in the federal courts in Boston. Citing the “important First Amendment values at stake,” the Court of Appeals for the First Circuit -— the very court that years later would give short shrift to the BC scholars in a case involving much higher stakes -— declined to enforce Microsoft’s attempted subpoena of the MIT and Harvard scholars.

“Academicians engaged in pre-publication research should be accorded protection commensurate to that which the law provides for journalists,” ruled the unanimous three-judge appellate panel in the case of the MIT and Harvard scholars. “After all, scholars too are information gatherers and disseminators. If their research materials were freely subject to subpoena, their sources likely would refuse to confide in them.”

It makes sense that the BC scholars have had a harder time seeking to protect their sources in a criminal investigation than the Harvard and MIT scholars faced trying to keep their research out of Microsoft’s hands. The state’s interests in the criminal arena are always seen as stronger than the interests of private civil litigants. But the Caldwell opinion of the Supreme Court, which set the standard for resisting a subpoena, was itself a criminal case. And with life-and-death issues at stake in the BC case, it is quite possible that the scholars, given half a chance, might have made a persuasive case that their interests in maintaining confidentiality, and indeed society’s interests in eventually learning the contents of the interviews once the interviewees died (presumably of natural causes), outweighed the insufficiently examined interests and motives of the Northern Irish police authorities.

In hindsight, it is now obvious that BC did not have the fortitude to function as a dependable repository for the tapes, and that the scholars should have retained them so that they would have the option of exercising their own moral and professional judgments in the event of a subpoena. Boston College, by blithely turning over the tapes and transcripts to Judge Young, and the news media and other academic institutions, by not ratcheting up public and professional pressure in support of enforcing a scholar’s privilege, severely hampered the ability of the scholars (and any BC officials and lawyers so inclined) to insist that the court conduct the necessary factual hearing.

In the face of poor judgment and dereliction of duty by BC, and a failure of moral and professional obligation on the part of the mainstream press that rarely hesitates to wrap itself in the mantle of the First Amendment, as well as other colleges and universities that have sat idly by, Moloney and McIntrye have been left with few legal options. Last month the two scholars filed a last-ditch petition for a rehearing before the full court membership after a panel of the Court of Appeals for the First Circuit upheld Judge William Young’s decision to turn over the first set of materials to the Northern Irish authorities, but the chance for reversal is slight. Nor is there much reason to believe that the second case, in which Judge Young ordered an even larger number of tapes to be turned over to the authorities, will fare any better in the Court of Appeals (nor, alas, in the editorial columns of the news media). The BC scholars are now alone to face whatever consequences come from the impending revelation of their confidential sources -— a virtual certainty in the absence of intervention by the Supreme Court, which would be the judicial equivalent of a “Hail Mary pass” made famous by a BC football hero of years past. Injustice Department wishes the scholars well.

(The research and editorial assistance of Zachary Bloom and Juliana DeVries is gratefully acknowledged.)

TRANSCRIPT: RTE Prime Time looks at the controversy over the Boston College interviews

Prime Time looks at the controversy over the Boston College interviews
RTÉ One
Thursday 12 July 2012

Program available for viewing for 20 days (Aug 2)

KEY – Show is in three parts: presentation, pre-recorded interview, followed by live discussion in studio.

Host Keelin Shanley ( *KS *)

PRESENTATION:
Reporter Edel McAllister (*Edel*)
Historian Anthony McIntyre (*AM*)
Irish News Editor Noel Doran (*ND*)
Michael McConville, son of Jean McConville (*MM*)
IRA Commander Brendan Hughes (*BH*)
History Professor Eunan O’Halpin (*EO)*

INTERVIEW:
Host Keelin Shanley ( *KS *)
Journalist Ed Moloney (*EM*)

DISCUSSION
Host Keelin Shanley (*KS*)
Baroness Nuala O’Loan (*NOL*), former NI Police Ombudsman (live in studio)
University of Liverpool, Politics Professor Jon Tonge(*JT*) (live in Belfast)

INTRODUCTION

Keelin Shanley (KS): Three years after the Good Friday Agreement researchers working with Boston College began to build up Oral Histories from those involved in the violence in Northern Ireland.

When a so-called “donor” agreed to take part in these interviews they were assured that the tapes would be kept secret until after their death.

But last year the PSNI decided to look for access to the tapes. Subpoenas were issued. And a US court has now ruled in their favour.

In doing so they’ve opened a Pandora’s box raising questions about why the researchers gave such cast iron guarantees in the first place, about the rights of victims to secure justice and also about the safety of those who participated.

Edel McAllister has this report.

PRESENTATION

Edel McAllister (Edel): In 2001, researchers began collecting some of the most compelling stories of the Northern Ireland “Troubles” for the Boston College Oral History Project. Dozens of former Republican and Loyalist paramilitaries told their stories on the understanding they’d be kept secret until they died.

The documentary, Voices From the Grave, was based on the testimony of former IRA Commander Brendan Hughes which was released after he died in 2008.

(Clip from the documentary begins)

Anthony McIntyre (AM): Do you have a problem with committing all this to secret tape to be used only after you’ve died?

Brendan Hughes (BH): I don’t have a problem with that. If I did have a problem with that I wouldn’t be sitting here talking into your microphone. And I think alot of the stuff that I’m saying here I’m saying it in trust because I have a trust in you. And I have never, ever, ever admitted being a member in the IRA. Never. I’ve just done it here.

(Clip ends)

Edel: The person who recorded the stories on the Republican side was former IRA prisoner Anthony McIntyre, now an historian.

The aim of what became known as The Belfast Project in Boston College was to get a better idea of what motivated those involved in The Troubles.

AM: It was meant to achieve a much greater understanding of the dynamics behind conflict from the point of view of those who participated in conflict.

Why people who would behave normally in everyday life would feel themselves compelled to behave abnormally as a result of what they perceived to be an abnormal situation.

Edel: Former Republican prisoner Dolours Price was one of those who gave her testimony to the Boston College project. However, when she went public about one of the most high profile cases of The Troubles, that of Jean McConville, it sparked renewed interest in the controversy.

Noel Doran (ND): We ran the statement from Dolours Price which received considerable attention. And that happened to set in motion a series of events which led to the family of Jean McConville reading other coverage in other outlets and coming to believe that a statement from Dolours Price had been lodged with Boston College and making a complaint to the PSNI because they believed that that contained information about the abduction of their mother. And that, in turn, led to where we are today.

Edel: Jean McConville lived in Divis Flats in Belfast. The widow’s disappearance in 1972 devastated the lives of her ten children. For decades they knew nothing of what happened to her.

Michael McConville (MM): When the IRA came to our house and took our mother – they didn’t only take our mother away from us and kill her and bury her for all them years; well, had her buried.

Our whole family was dispersed all over homes in Northern Ireland some-where. My sisters and brothers….

I lost all my sisters and brothers with this too because we were brought up not even knowing each other.

Edel: Following a request from the McConville family the PSNI applied to the US courts to access the interviews.

The court eventually ruled in their favour saying a police enquiry held precedent over academic guarantees of confidentiality. An appeal last week by Project Director Ed Moloney and Researcher Anthony McIntyre failed.

ND: If the material is handed over to the PSNI, which hasn’t happened yet but looks as though it’s going to. And if that might that might form the basis for a prosecution well that would be a very dramatic development indeed. Not everyone in Belfast believes that’s likely to happen.

I suppose it’s conceivable that they open an evidential trail which may lead in a certain direction but given that forty years have passed over most of those circumstances and given that there’ve been so many changes and twists and turns along the way it’s a little hard to believe a prosecution will automatically follow.

However, in the very unusual circumstances that sometimes exists in this part of the world you couldn’t rule anything out.

Edel: Whatever happens to these tapes those involved in collecting the stories say the college shouldn’t have given guarantees of confidentiality that could not be honoured.

AM: I’m seriously concerned for the interviewees. They were given full guarantee of absolute confidentiality by Boston College via myself. And they are now in a position where they will be accused by people in the IRA or formerly in the IRA who have the power to harm them for having breached the IRA code.

Edel: Boston College say the original contract setting up the project stated that confidentiality was limited to the extent of US law.

(Visual begins of Boston College logo as letterhead quoting Boston College)

“…CONFIDENTIALITY LIMITED TO THE EXTENT OF US LAW.
WASN’T CLARIFIED IN DONOR AGREEMENTS
SHARED REGRET AND SHARED RESPONSIBILITY…”

However, this wasn’t clarified in subsequent Donor Agreements for participants and the college that says there’s “shared regret” and “shared responsibility” for this.

(Visual ends)

Eunan O’Halpin (EO): Sometimes some of these issues aren’t moot but what is moot is the question of whether somebody who holds that material, who collected it for academic purposes can’t simply say: No, I mustn’t give this up because I made a promise.

And they may have made a promise and they may have believed that promise but the law of the land and the rights of victims…there are people out there who wish to know, even if there’s not going to be a prosecution, who would like to know much more about why their grandfather or their sister or whoever was killed. And families of victims have rights as do academic researchers and as do people who gave testimonies in confidence.

Edel: The aim of this project was to record accounts of events which would give future generations a better understanding of the peace process. But this case shows how difficult this can be while those events are still fresh in the minds of victims and their families.

INTERVIEW

KS: That report from Edel McAllister. A little earlier on this evening on Skype I spoke to Ed Moloney, the journalist and Director of The Belfast Project. I asked him first whether following the court’s ruling against him the tapes would be handed over.

Ed Moloney (EM): Well, there is no chance that the tapes are going to be handed over straightaway. At the very least there is a technicality called a mandate which means that the tapes cannot be moved for at least six weeks. And we also have other legal options to explore which will delay that even longer.

In the first instance, we are applying for a re-hearing of this entire case in front of the full bench of the Appeal Court in the Boston First Circuit area. And then after that we have other legal options here in the United States.

And once those are exhausted, and hopefully they won’t be – that we’ll win here – but if we have to explore further options those will be in the Belfast courts. And so the fight will begin anew in Belfast.

What that means is that this battle is going to last for a very long time yet and the prospect of these tapes being handed over, which I think some people thought was imminent, it’s not going to happen for a very, very long time and if we have our way, it never will happen.

KS: Ed, should these tapes be handed over, how real do you estimate the security threat to yourself or to Anthony McIntyre or other people involved in this project to be?

EM: It’s very worrying indeed. Because Anthony McIntyre, as a former member of that organisation with which of course he broke any sort of associations a long, long time ago, still has this unwritten rule of silence that no one is supposed to break who was a member of the IRA except at fear of the ultimate punishment. And the same applies to the people who took part in this project.

It’s no exaggeration to say that this move by the PSNI could really cause very serious injury and maybe even loss of life.

KS: Ed, clearly you have acted in good faith here.

But in retrospect, shouldn’t you have clarified this a little further? I mean, do you have a case to answer here for giving guarantees to the interviewees that you were in no position to keep?

EM: We made an arrangement with Boston College which was based upon a guarantee from them that none of these interviews would ever be in any sort of legal danger at all and would not and could not be handed over to the police in Northern Ireland. And that’s the basis upon which we proceeded.

I can understand people saying: Well, Ed Moloney and Anthony McIntyre have a reason to say this because they’re the ones with the high profile at the moment.

But you have to remember that it wasn’t just ourselves who were involved in this project.

The Ulster Volunteer Force took part in this project.

They started a couple of years after the IRA interviews started. And their representatives had face-to-face meetings with Boston College in Belfast which I didn’t attend because I was over here in America.

But they attended and at those meetings they asked for an assurance that there was no chance that these interviews would end up in the hands of the PSNI and they got that assurance from Boston College and they therefore participated on that basis.

Now, I don’t think the UVF is the type of organisation that would have such a cavalier attitude towards the interests of its members that it wouldn’t participate in a project like this without being absolutely sure of security.

KS: Ed, if I can clarify: as we understand it there was a contract between yourself and Boston College that carried the caveat that confidentiality was limited to the extent provided by the law. But that this caveat…

EM: No, that…

KS: You’re are saying that was not there…was it not?

EM: It doesn’t mention the word confidentiality. It talks about the extent of America law allows in relation to conditions of its deposit at Boston College.

We of course, following that we then we submitted various forms of words for the contract to Boston College.

And the reply that we got from Boston College from the Librarian was that he would work on the wording and that he would run it past the lawyers at Boston College and also his boss, Tom Hachey.

And the contract that we got back from Boston College specifically said that the right of release of these interviews rested solely and exclusively in the hands of the people who’d given the interviews until such time as their deaths after which it was then Boston College’s property to do with as they wish.

So from our point of view, having gone through that process, the Donor Agreement that we had got from Boston College appeared to us, seemed to us to say that it was fully in-line with what American law allows.

And on that basis (consistent with American law) and on that basis we went forward. Otherwise we would not have done so.

KS: Ed, a final question just on the wider issue I suppose.

We heard from Michael McConville, one of Jean McConville’s children today. And he said he doesn’t really care about the ins and outs of it, he just wants to know what happened to his mother.

Do you feel that he has a point…that he is entitled to know what’s in those tapes?

EM: You are speaking to someone who has, more that any other journalist in Ireland, done more to find out what happened to Jean McConville.

And clearly yes, they do have the right to know what happened to their mother.

But not from us; not from our tapes. There are other sources.

There was, for example, an interview with a Belfast newspaper which was reproduced in a Sunday paper in Belfast as well.

Where has that tape recording gone to?

Why has the PSNI not followed up on that tape recording? Why have they not pursued and harassed the journalists in Belfast who were responsible for that interview?

Why have they come instead three thousand miles across The Atlantic?

I understand and I sympathise entirely with Michael McConville and the McConville Family but I think they should be asking the PSNI some of those hard questions as well.

KS: Okay, Ed Moloney, thank you very much indeed.

LIVE DISCUSSION IN STUDIO

KS: And that was Ed Moloney speaking to me a little earlier on.

I’m joined now by Nuala O’Loan, former Northern Ireland Police Ombudsman and from Belfast by Professor Jon. Tonge

Nuala O’Loan, if I can come to you first. What is your basic view on this, should these tapes be handed over or should they not?

Nuala O’Loan (NOL): Well, I’m not an American lawyer. But under British law the situation would be that material which journalists gather, or which academics gather, can never be the subject of a complete assurance that it will not be disclosed to police who are investigating crime.

There are special procedures sometimes to get journalistic material, but at the end of the day, it is subject to the requirements of an investigation, if there is material which may assist an investigation.

It’s actually an offence in Northern Ireland if you have information which may assist an investigation not to hand that over to the police. So I’m very clear that legally there’s an obligation.

I’m equally clear that morally, there’s an obligation, because this is information about the murder of a mother of ten children who was abducted in front of her children. The IRA denied until 1999 that they had taken her, all sorts of messages were sent to her children, that her mother had run away with a soldier, they were told that she’d abandoned them. So I think that morally there’s an obligation to let the children know as much as there is.

But I think, as importantly, we’re building a new society in Northern Ireland. A society based on the rule of law. And international law says, we don’t have amnesties for gross violations of human rights. And abducting a mother and murdering her is a gross violation of human rights. So where material is gathered and where it is available it should be there for the investigator.

KS: I suppose, Nuala, somebody might say, you are building a new society in Northern Ireland, but isn’t part of that dealing with the truth of the past and there have to be facilities under which people could be free, to open up about the past, to find out what happened and why it happened?

NOL: I have no difficulty with that as an idea, and we had the Eames Bradley commission which looked at various ways in which that might be delivered by society but the reality is that if the state is going to have these processes, then the state must introduce the processes. You can’t have individual journalists thinking that they can give assurances to people and take themselves outside the law. I mean, that just is not possible. Nor can you have individual academics thinking they can give assurances and take themselves out of the law. Everybody who lives in the state is subject to the law.

KS: Ok, well, let me bring in now Professor Jon Tonge here. What’s your view on that? Should these have been released – should these be released?

Jon Tonge (JT): I’m not sure they should have been released, I am not sure they will be released. I think Ed Moloney has already outlined how he is going to fight it on. I think it’s dangerous. I think as academics and journalists we spend an awful lot of time gaining the confidence of people – who may be morally dubious, let’s make no bones about that – but those of who have researched on paramilitary actors in Northern Ireland have had to gain the confidence of those actors to interview them. And it’s no different for Ed Moloney and Anthony McIntyre. The guarantees that they gave were not worthless. They were given in very, very good faith.

The Police Service of Northern Ireland has a Historical Enquiries Team. I don’t blame the Police Service of Northern Ireland. If you’ve got an Historical Enquires Team, that team’s going to make historical enquires. But the fact is, where will this take us?

I think it will be damaging for the peace process more broadly, because what happens, if down the track, the PSNI begin to arrest senior republicans on the basis of these tapes? Where will that take us politically?

Now you can say well that is a morally reprehensible position and I understand the criticism that would come from that. But the fact is the whole peace process has been about moral compromises. We have had to put the past behind us. I don’t want to engage in clichés about leaving the past behind, but that is the reality that we are dealing with.

I think therein lies the danger. What happens when very senior republicans are brought before the PSNI? To repeat, I don’t blame the Police Service of Northern Ireland, they’ve acted even-handedly; only last week they said they would look at prosecuting, potentially, British soldiers involved in Bloody Sunday.

But I think the broader picture is where do we go from here. At some point we have to stop policing the past and move towards the future. And this is more indication that we are simply going to be policing the past in Northern Ireland.

KS: Fair enough. But I suppose the response to that is, well, what about the rights of the McConville family to know what happened to their mother?

JT: I’m conscious of that, and it’s not for academics like myself sitting in ivory towers to be dismissive of that. And I think there are huge sensitivities here. They have a right to seek truth and seek justice.

But actually, they may have achieved at least the truth on what happened from what McIntyre and Moloney were about. There’s perhaps more chance of that than the Police Service of Northern Ireland investigation.

Because, without pre-empting these inquiries, are there going to be prosecutions, at the end, based simply upon the oral testimonies of people who may have had a particular political view? Some of the people who were interviewed have been quite critical of the Republican leadership, for example.

I’m not convinced that a PSNI investigation will necessarily lead to the McConvilles getting the truth and justice that they do deserve.

NOL: But, Keelin, the question is not, you know, can they wait another 30 years or until someone dies before they find out what was said about their mother’s death. It is suggested that Dolours Price has said in this tape that she drove Mrs McConville to her death. That is my understanding of what is suggested. Now. If that’s information is out there, then the police have every right and every duty.

I don’t think here, in Dublin, if somebody was murdered 40 years ago and suddenly, you’ve got, say, new DNA evidence, or new, other, forensic evidence, you would say, well, we’re not going to do that because that’s 40 years ago and we have to leave the past in the past. You would say, no, if we have reasonable grounds to suspect someone of a murder, we will proceed with that.

Now. It is eminently possible that no one will ever be brought to trial for the murder of Jean McConville. I accept that, for a variety of reasons, which we probably haven’t got time to discuss. But. The key thing is, that if you have a state which is based on the law, and you have material which is available which may assist an investigation, there are special processes – you can’t just – I mean, the police couldn’t just walk in and get it, they have to make these applications, they have to go, in this case, to America.

But no journalist and no academic should ever think that they are in a position in which they can give total assurances. And, you know, I speak as the chair of a governing authority of a university. You can never give total assurances as an academic. Nor can you as a journalist.

KS: Ok. Nuala, can I ask you, I mean, from a different angle, listening to Ed Moloney there, he seems to be very certain that there are real risks to Anthony McIntyre and possibly to other people involved in this project, if these tapes are revealed. Is that something that needs to be taken into account before the contents of the tapes are disclosed?

NOL: [talks over KS] You risk assess every operation with which you have to deal. But you actually do what the law requires you to do, and you risk assess, and then you try and provide controls to deal with the risks.

Uhm… there are risks for all of us who live in this world, and who deal with matters which relate to the past activities of paramilitaries. But you can’t allow that to be the reason for covering up.

KS: Ok. Another point that’s put forward is there were plans to extend this project, to speak to members of the police force, the gardai. Possibly that will be scuppered now. I mean, is that not a loss?

NOL: Well, the question is. Are they going to be admitting, ah, crimes, that they’ve committed, are they going to be admitting breaches of the law, really serious breaches of the law, shoot to kill stuff or something like this, if they are then that material cannot be the subject of assurances.

There’s an awful lot of storytelling going on at the moment. And there are a lot of mechanisms for storytelling. And storytelling is good. And people giving their accounts of what they did and how they did it – there’s a lot of books coming out, constantly, about the Troubles. So I think there are many processes through which we may learn something of the Troubles.

One of the problems about, you know, secret information given secretly to journalists or to academics is that it can never be tested, it can never be challenged, it doesn’t go through court process… all that needs to happen, for it to satisfy the law.

KS: Ok. And very briefly, back to you, Professor Tonge. Do you think this has serious ramifications for future academic projects in the north if these tapes are released?

JT: It’s got huge ramifications.

I was about to embark on a project interviewing dissident republicans to find out more about what motivates them to join dissident groups. But people simply dry up. They simply won’t talk. So we’ll actually learn less, about why that’s taking place.

And I think if you think about the wider politics. Let’s suppose we do get to prosecutions and convictions. These people will be released anyway, within two years, under the terms of the Good Friday Agreement. So the question is, is it worth it?

I know, I’m very, very conscious when I say that as an academic, who has not suffered in the way that victims and their families have suffered. I think we have to be cognizant of that all the time. Nonetheless, I’m still not convinced that this is necessarily the right route to go.

KS: OK —

NOL: [interrupts] I don’t think anybody can say it is right for the McConville children not to know what happened to their mother.

KS: OK, well, listen, Nuala O’Loan, Jon Tonge, thank you both very much indeed.

Segement ends.

Stand Up For Real Journalism

Stand Up For Real Journalism
Nick Garbutt
The News Letter
Thursday 12 July 2012

IF you ever wanted conclusive proof of the malaise of journalism it is this.

Today the best paid and most prestigious position on a tabloid newspaper is the showbiz editor.

Tabloids don’t bother with the business of news – they gave up on this a long time ago. This was inevitable, given that technological innovation means that “news” is out there long before a newspaper hits the shelves.

Instead they busied themselves with creating a parallel universe peopled with “celebrities” they themselves created and then they rummaged through their dustbins and hacked their phones to bring them down.

Yet because most of these people are simply famous for being famous there is no possible public interest in publishing details of their drug habits, their sleeping partners or, for revealing, surprise, surprise, famous people are not necessarily nice.

Just check out the Daily Mail any day of the week and you will find endless stories about wardrobe malfunctions, curious facial hair, or paparazzi pictures of actresses going out to the shop without wearing make-up, and consequently don’t look as good as the airbrushed images on the posters.

Real journalists do still exist. One of them is Ed Moloney, who was Northern editor of the Sunday Tribune when I joined that paper back in 1989.

He was ferocious, relentless, a wonderful writer and one of the very best to have come out of Vincent Browne’s extraordinary stable of talent in what was for several years a great newspaper.

He was, and presumably still is, a volatile man and God help the sub-editor who rewrote or cut his copy.

I’ve no idea about his personal politics. I never asked him, and I don’t think it is relevant. The purpose of real journalism is to hold public figures and public bodies to account and to give people an insight into what is really going on. If a story can be justified, publish and be damned.

That process can make a lot of powerful people feel uncomfortable because what emerges is not necessarily what they want to be known. So it has always been with the best reporters.

Many years ago he set out to find out the uncomfortable truth behind many incidents that have shaped our lives in Northern Ireland.

It is, after all, important to know who did what and when and not to allow anyone to airbrush their roles in the conflict, as if they were aspiring actresses posing for a photo-shoot. This, after all, was a bloody, bitter war. The normal rules of engagement for oral history projects, and I know this because I am working on one myself, is to agree at the outset with ex-combatants that they will only talk about incidents for which they have been convicted. It’s the best way to get material published.

But Moloney took a different route by undertaking through the Boston College project to keep matters confidential until the person he interviewed had died. Anybody’s testimony is self-serving, but at least this approach gets further to the truth. And so loyalists and republicans alike who defied the best interrogation techniques the authorities could muster, presumably used this armistice.

Now, because of what has been published in two separate articles in daily newspapers here, the PSNI are close to obtaining one of those transcripts, that of the convicted bomber Dolours Price.

The stories carried in the Irish News and the Sunday Life appear to suggest that she was involved in the appalling kidnap and murder of Jean McConville in December 1972 and that her involvement was on the orders of Gerry Adams.

Ms Price is an alcoholic who has severe mental health problems. Regardless of whatever she may have said to Moloney, they will presumably have to get direct testimony from her in order to secure any kind of conviction.

I’ve no insight into her mental state and I am not a lawyer, but common sense suggests this is unlikely.

So the most obvious repercussion of the PSNI’s success is not to secure justice for Jean’s family, or to lead to a conviction, but instead to make it less and less likely that any future generation will understand who did what and when and for victims to find closure.

I find this sad, and despair for journalists, whatever their persuasion. Ultimately the truth matters, and the most logical consequence of all this is that what really happened will be lost forever and in Northern Irish terms a picture of Christine Bleakley snogging Frank Lampard in a Las Vegas swimming pool is legitimate whereas attempts to get at who did what during the Troubles are not.