Wednesday, February 18, 2015

Wandering Interviews: A Story Mostly Left Untold



Be Very Afraid

(Updated below with PSNI, State Department, and court responses.)

Stuff happened.

Over the weekend, police detectives returning to Belfast with tapes of newly subpoenaed paramilitary interviews from Boston College found themselves unable to comply with a court order. The Court of Appeal in Northern Ireland, considering a legal challenge from former loyalist paramilitary leader Winston Rea, had ordered the Police Service of Northern Ireland to take the interview material it had just obtained from federal law enforcement authorities in Boston and deliver it all directly to the U.S. Consulate in Belfast.

While the court considered Rea's appeal, then, the interviews -- supposedly his, though that has yet to be proved -- would remain in the hands of U.S. officials in an American diplomatic post, out of the easy reach of authorities in Northern Ireland. Since the substance of Rea's legal argument has to do with the very legality and appropriateness of the international process by which the PSNI obtained material from an American university, placing the subpoenaed material in a kind of makeshift United States made at least some amount of sense: The material would reach Northern Ireland, but would be taken out of the practical and immediate jurisdiction of its government, held in a foreign diplomatic facility.

Several news stories in different publications then say this, in almost identical terms, about the thing that happened next: "However, those conditions were varied late last night due to difficulties in arranging to have the sealed container lodged with American representatives."

So instead, the subpoenaed Boston College oral history material stayed with authorities in and of Northern Ireland, stored with and guarded by the courts themselves: "Instead, an amended order was made for the tapes to be taken to the Royal Courts of Justice in Belfast and placed in secure storage there."

No one has explained those "difficulties" in turning over the interview material to the American consulate, though there's the hint of an explanation in that reference to a "sealed container": There must have been security problems, as officials at the consulate worried about taking custody of a box without being able to look inside it.

The first striking thing, here, is a problem that comes up over and over again in news coverage of the Boston College subpoenas, as vague descriptions from government officials just show up, undigested, in print. What were the difficulties? Where did they happen? A pair of PSNI detectives stood outside the consulate in the cold while a stern-faced consul peeled back the curtains and wordlessly shook his worried head, or what? Who communicated, and what did they communicate? When? Where? How?

The vagueness of detail paints fog across some strange and implausible events. Again, something happened, and we don't know what it was, but there's surely something more interesting to it than this carefully vague depiction of unnamed difficulties occurring in some undiscovered space and time.

First, a consulate never sleeps; it exists in significant part for the purpose of responding to emergencies. A duty officer is always available -- the website for the U.S. Consulate in Belfast tells you how to contact consulate officials in an after-hours emergency. So if the police in Belfast couldn't make arrangements with the American consulate in Belfast -- "late last night," as the stories make a point of saying -- the one thing that couldn't have been the cause is that they just knocked on the front door and nobody answered because it was, like, real late and stuff. Someone communicated something: Police talked to diplomats. Who said what, in what setting?

Second, about that dangerous "sealed container": It was either sealed by the PSNI or by federal law enforcement authorities in Boston (and probably the latter), who as a matter of policy seal evidence for transport. See, for example, "Packaging and Shipping Evidence," pg. 3, in this FBI manual. The container was sealed by law enforcement authorities in Boston, then carried onto an airplane by police detectives. Then it arrived in Belfast, where officials at the American consulate freaked out over the sealed container?

"Look, pal, I don't know what this 'FBI' thing is, but if they sealed this package, I don't want nothin' to do with it." For security reasons, U.S. government officials refused to take possession of a container sealed by U.S. government officials and held continuously in the personal custody of police detectives from the U.K., America's closest ally? Why? They thought maybe Carmen Ortiz was trying to blow them up with a bomb? Is there a Continuity Department of Justice that hasn't laid down its arms, or something?

A more likely scenario, it seems to me, is that the State Department doesn't want to get the PSNI's shit on its hands, and opted out of a scheme they found distasteful and reckless. The subpoenaed material left the U.S., and the U.S. government can't have been sorry to get rid of it; then the police showed up on the American government's doorstep again, looking forlorn and holding the same package the very same U.S. government had just gotten rid of. Yeah, we'll pass, thanks.

Or something else. But whatever that something is, there are at least as many potential political explanations for the consulate's refusal as there are practical explanations about late nights and sealed containers -- and that's if the consulate really refused, which has just been assumed in all of the reporting to date. Did the State Department just refuse to get involved in the Belfast Project subpoenas?

I've been asking both the State Department and the PSNI for a more detailed description of the "difficulties" that prevented the U.S. Consulate in Belfast from taking possession of the material the court ordered the PSNI to deliver to its custody. Neither have answered my questions yet, and neither seem likely to. I've also filed a FOIA request for consulate records. In the meantime, there are journalists in Belfast who do this all day and for a living. Perhaps one of them can penetrate the fog of "difficulties in arranging to have the sealed container lodged with American representatives."

What were the difficulties? Who, what, when, where, and why?

Maybe the story just turns out to be late night bumbling, missed signals and tired refusals over practical concerns. But someone has to tell that story, first, and I'm constantly amazed at these paragraphs of alleged news that don't bother to explain the things they supposedly exist to explain.

It's still true: The things we don't know are more important than the things we do.

UPDATE, Feb. 19: The PSNI press office sends this response to my questions: "This is not a matter for us – it was a direction of the court which was subsequently altered for reasons we are not aware of."

This is not what newspapers in Ireland and the U.K. reported. They reported, vaguely, that the PSNI was turned away by the consulate during late night discussions, forcing the police to tell the courts that they couldn't deposit the material at the consulate, and so forcing the courts to change their order because of the information they got from the police. Now the police say they have no idea why the court changed its order about the destination of the interview materials.

There is a story here, and something that someone isn't telling. 

SECOND UPDATE, Feb. 19: Complete response from the press office of the U. S. State Department: "We cannot comment further on this pending legal matter. We refer you to the Department of Justice for further information."

THIRD UPDATE, Feb. 23: Complete response from the press office for Northern Ireland courts: "The Northern Ireland Courts & Tribunals Service normally refers queries about judicial decisions to the Office of the Lord Chief Justice.  They have advised that the reasoning behind the judicial decision was not discussed in open court and there is therefore nothing on the court record to say why the venue was changed from the US Consulate to the Royal Courts of Justice."

Government by secrecy and sneaking, with no accountability or transparency at all. 

Tuesday, February 10, 2015

Damning a Peacemaker


The otherwordly quality of the PSNI's new "investigation" into Winston "Winkie" Rea is captured neatly this week in a sentence from this RTE story: "An international request for the tapes said police have information that Rea was a member of the Red Hand Commando whose interviews would assist investigations into those crimes."

Good Lord! The police have information that Winston "Winkie" Rea was a member of the Red Hand Commando!



Keep this to yourself, but I also have information that Winston Rea was a member of the Red Hand Commando -- it's on Wikipedia, which goes so far as to say he was its leader. Someone rush this new information to the PSNI right away, so they can investigate it.

Similar information on the origins and leadership of this obscure organization can be found in no more than many dozens of books and articles published in the last twenty years.

When books and news stories specifically describe Winston Rea, they reveal a warrior who turned firmly against political violence -- a peacemaker in a serious and lasting way, and the son-in-law of another warrior who came to renounce war. "Winkie is an example of those who fought the war and those who started and continued to build the peace," a unionist political leader told the Belfast Telegraph this week. 

Pursuing Rea as a criminal, the PSNI appears to have used his presence in peace talks against him. One of the accusations laid out against Rea in recent court proceedings is that he "met with former British Prime Minister John Major in 1996" -- in between the declaration of a loyalist ceasefire and the conclusion of the Good Friday Agreement -- proving that he was a member of a paramilitary organization because he had the standing to negotiate on behalf on one. He met with government officials to end a war, your honor, so we know he's a thug.  

Rea was also a regular presence in the Castle Buildings in April of 1998, and this article from 2000 described him as "a member of the PUP's Good Friday Agreement negotiating team." So maybe that can be held against him too, and eventually charged as another crime.
 

Having made peace, Rea has worked to keep it. "There have been significant attempts by former paramilitaries, including Winston Rea and Jackie McDonald, to deglamorize conflicts to young people as a means of reducing their vulnerability to involvement," reads one account.

This is the person the PSNI is now supposedly pursuing as a criminal, decades later. It may be a course permitted under the law -- but it's monstrously stupid policy, and a political course that spits in the face of an entire generation of serious people who found a way to stop killing each other. It really is a picture from Northern Ireland you thought you'd never see.

Saturday, February 7, 2015

Be Vewy Quiet

We're Hunting Wabbits!

On Friday, a barrister representing the Police Service of Northern Ireland shat all over...the Police Service of Northern Ireland. In open court. But no one seems to have noticed.

Police officials have publicly denied that their request for a new subpoena of archived Belfast Project interviews constitutes a "fishing expedition." But Winston Rea, whose interviews are the target of that subpoena, has asked the courts in the U.K. to prohibit the PSNI from taking possession of the subpoenaed material -- so police officials and prosecutors have been forced to appear in a Belfast courtroom to explain the nature and purpose of the subpoena they have asked American authorities to serve on Boston College. Here's how the BBC reports the comments from the PSNI's barrister:
"There are obvious reasonable grounds for suspecting offences have been committed," he said.

"Whether or not the applicant is the individual who has committed those, it's quite clear the police have active lines of inquiry in respect of murder, attempted murder and robbery."

He said the PSNI is seeking to advance inquiries into serious crime spanning three decades up to the late 1990s.

"Regardless of who committed these offences there are victims, there are those bereaved, and some of them have written to the court expressing an interest in the issue," he added.
So the PSNI is pursuing Winston Rea's interviews not because of a generalized fishing expedition, ladies and gentlemen, but rather because of a laser-focused inquiry into some precisely and narrowly defined crimes that took place over the course of thirty years -- the longest murder ever? a slow-motion bank robbery? an attack on a glacier? -- and that Winston Rea didn't actually commit.

Whether or not the applicant is the individual who has committed those. Regardless of who committed these offences.

The police have now said in a public setting that they sought a subpoena of Winston Rea's interviews in order to investigate murders and robberies not committed by Winston Rea. This is serious?


Monday, February 2, 2015

PSNI: Back to the Dead End


One strange fact underlying the new Belfast Project subpoena originated by the Police Service of Northern Ireland (PSNI) and served on Boston College by American prosecutors: The PSNI investigative unit that requested the first Boston College subpoenas in 2011 no longer exists, and destroyed itself politically with its sloppy and reckless approach to the past. So now a new police unit seems to be traveling down a road that was a literal dead end for its ruined predecessor, although there are also some questions about which part of the PSNI is managing the new subpoena.

The Historical Enquiries Team (HET), established in 2005, was staffed by contractors – many reportedly drawn from their prior service in the Royal Ulster Constabulary, the Protestant-dominated police agency replaced by the PSNI. It was the HET that asked for subpoenas of Belfast Project materials in 2011, supposedly as an effort to solve the case of Jean McConville's still-unsolved 1972 kidnapping and murder.

In 2013, a damning report from Her Majesty's Inspectorate of Constabulary found the HET to be unmoored and adrift, operating in an "absence of coherent and prescriptive policies." 

But the police unit tasked with investigating the violent past in Northern Ireland did have some policies, and those weren't better news: "We found that the HET, as a matter of policy, treats deaths where there was state involvement differently from those cases where there is no state involvement."

Its credibility shattered, the HET suddenly discovered last summer that there wasn't enough money in the PSNI's budget anymore to pay for its existence. The team was closed, many of the contractors were let go, and subsequent negotiations in Northern Ireland's government led to a very general agreement that would, among other things, eventually create a new "Historical Inquiries Unit." No one appears to be in a hurry to open that new investigative body, and news reports this week suggest that the PSNI is hoping to get it started in, oh, I don't know, how about a couple years from now

In the interim, a smaller Legacy Investigations Branch will do the work of the shuttered HET and the proposed HIU. This totally isn't a rearranging of deck chairs on the Titanic: The HET and the LIB and the HIU are the same, but totally different. Clear?

So while no one actually knows what the PSNI should really do about killings committed during the Troubles, and the service drifts between different bowls of alphabet soup with no clear plan or intent, someone at the PSNI has decided to throw a new international subpoena (or subpoenas; we don't know) at the past.

By the way, one of the other elements of that same agreement in Northern Ireland that's supposed to lead to a new unit for the investigation of historical crimes: A proposal to create an oral history archive so people can speak honestly about the past. They don't seem to have consciously intended to engage in open farce, but the fact that no one burst into nervous giggling as they offered this alleged proposal suggests the seriousness of the agreement. I mean, what the hell – an oral history archive on the Troubles? What could possibly go wrong? Maybe they could interview Richard O'Rawe.   

In any event, this is what the PSNI's press office has been saying in response to news media inquiries regarding new Belfast Project subpoenas: "Detectives in Serious Crime Branch have initiated steps to obtain all the material from Boston College as part of the Belfast Project. This is in line with the PSNI's statutory duty to investigate fully all matters of serious crime, including murder."
 

So while the LIB winds down the HET and spins up the HIU, the SCB is also apparently doing its own separate investigations into Troubles-era violent crimes. You can feel the thought and planning at work.

An alternative approach would be to slow down and reach a secure and detailed policy agreement about the investigation of the past, but whatever. Judging by the effects of the 2011 subpoenas, there's not much of an outcome to worry about anyway. Although we may end up with some new police acronyms after a few more failed branches of an obviously confused agency.

Thursday, January 29, 2015

Parsing a Sealed Black Box


Something went wrong for the police, and it's not clear where it happened.

Last May, the Police Service of Northern Ireland announced that they were going back to Boston College for the whole Belfast Project collection, having already obtained eleven interview segments from a series of subpoenas issued in 2011. In a line that they have repeated over and over again ever since, the police released a statement: "Detectives in Serious Crime Branch have initiated steps to obtain all the material from Boston College as part of the Belfast Project. This is in line with the PSNI's statutory duty to investigate fully all matters of serious crime, including murder."

Until last week, there was no public evidence that they had ever actually done the thing they said they intended to do. But in a Belfast court last Friday, the PSNI confirmed that it has asked to have American authorities issue a new subpoena for Belfast Project material. (They can't directly make that request to the Americans themselves, which is a long story.)

A person familiar with that hearing told me today that officials explained to the court what they had asked for, and (in vague terms) why: They asked for a subpoena of Belfast Project interviews with former Red Hand Commando leader Winston "Winkie" Rea, and they did so in response to specific information about a particular matter.

So compare the threat to the delivery: 1.) We're going to get the whole collection, every interview conducted with every interviewee, versus 2.) a narrow request that only targets a specific interviewee.

Another thing made public in the Belfast court wrangling: The request for a new subpoena was sent to American authorities in a letter dated Sept. 11, 2014.

So between May and September, the new police fishing expedition into the Boston College archives was narrowed from everything to a much narrower set of documents. But no paper trail or public statements explain that change at all. The publicly announced and repeatedly affirmed police intention to seek the whole Belfast Project collection seems to have been blocked, delayed, or sharply narrowed, somewhere. But where? And why?

The PSNI approaches Boston

It could have happened in Northern Ireland, as other parties in government intervened against the police. It could have happened in the United States, after American officials got a request to subpoena the whole archive but refused to do it. It could have happened in an American court, though I doubt it got that far. But somewhere, somehow, someone said no to the police, and we don't know who. The politics of that refusal, whenever the story emerges, will be important.

But this is only the first of many questions about the latest Belfast Project subpoena. Again, until last week's court hearing in Belfast, there was no publicly available evidence that new subpoenas had been served at Boston College – and yet, subpoenaed material was ready for delivery. Pretty clearly, a whole legal process was conducted in secret. Among the events not made public: The appointment of a commissioner to promulgate the subpoenas, a required step under the US-UK Mutual Legal Assistance Treaty. The issuance of a subpoena, or of subpoenas. A potential court review of the scope of the subpoena and the subpoenaed material. And the delivery of the subpoenaed material to the U.S. Attorney's Office.

A story this week in The Heights, the independent, student-run Boston College newspaper, said this remarkable thing: "The U.S. Attorney’s Office has asked that the matter remain confidential throughout the duration of the proceedings, according to University spokesman Jack Dunn."

Note what the story doesn't say: Why did Boston College agree to that request? And what else has the university agreed to keep confidential merely because federal prosecutors asked them to?

Several other questions follow. Boston College agreed last year to return interviews to interviewees, and began to do so. Is the university still returning interviews, or have they stopped? Are there still interviewees who are asking to have their interviews returned, and what position does Boston College take on further returns?

Richard O'Rawe got his interviews back; Winston Rea didn't. Why?

Finally, Ivor Bell – reputedly a former IRA member, and alleged by the PSNI to have aided and abetted in the murder of Jean McConville – is being prosecuted in Northern Ireland. But his prosecution is going slowly and poorly, because the Belfast Project tapes alleged to contain his interviews can't be connected to him. Boston College lost its collection contracts for at least some Belfast Project interviewees, and never received an identification key to the coded tapes in its possession.

So if the PSNI can't connect Ivor Bell's supposed Belfast Project interviews to Ivor Bell, does anyone actually know that the tapes now waiting for the PSNI at the U.S. Attorney's Office in Boston can be proven to contain interviews with Winston Rea? Does Boston College have a signed collection contract with Rea? And what role, if any, does the missing interviewee identity key have in narrowing the PSNI's latest fishing expedition?

It's clear that significant developments have taken place with regard to the Belfast Project materials archived by Boston College. It seems that Boston College and the U.S. Attorney's Office in Boston have developed a cooperative relationship rather than an adversarial one, as BC works to keep the DOJ's secret subpoenas hidden. It's apparent that a federal court in Boston has been engaged in secret procedural efforts, in a significant matter hidden from public view. And it's inescapable that we have a long, long way to go in any effort to understand what has been happening since last May.

Tuesday, January 27, 2015

New Belfast Project Subpoena(s)


Authorities in Northern Ireland have asked the U.S. government to subpoena new materials from the Belfast Project collection at Boston College, and at least one new subpoena has been served and executed. Late last week, a court in Belfast issued a preliminary injunction forbidding the Police Service of Northern Ireland and the Public Prosecution Service from traveling to the U.S. to collect the newly subpoenaed material from the U.S. Attorney's Office in Boston. 

You can see (added later: a draft of*) the complete court order here. We learn at least one new item of significant interest from it: Officials in the U.K. made a new MLAT request to the U.S. government on Sept. 11, 2014. Here's the part of the court draft order that reveals this new information:



The details of that Sept. 11 request are not available, and a spokesman told me last week that the U.S. Department of Justice "is not confirming or commenting on this." But the British court document gives us the first clear public evidence that the PSNI has gone back to Boston for more material from the Boston College archives.  

Beyond that, the interesting news is that the first public notice of a new subpoena arrived only after the subpoenaed material was in the hands of American authorities. The last time the PSNI went fishing in Boston in 2011, news of the subpoenas was widely reported, and Belfast Project researchers Ed Moloney and Anthony McIntyre waged a long and ultimately unsuccessful court fight in an effort to prevent the DOJ from obtaining the subpoenaed material. In the light of significant public attention, Boston College also waged a more limited legal effort to narrow the scope of the subpoenas, and convinced a federal appeals court to whittle back the amount of sensitive research material that was delivered to authorities. 

With this new subpoena (or subpoenas) the legal and political action has all happened in the dark, right up to the final moments. There's no publicly available paper trail to show us what happened, but it appears that Boston College and the DOJ worked together to keep news of the new subpoena from becoming public. The secrecy extended to the campus: I asked BC faculty last week if the university had informed faculty of the new subpoenas, and the few professors who responded said they had not been told. 

The injunction in Belfast was issued at the request of Winston "Winkie" Rea, the former commander of a Loyalist paramilitary organization. Several newspapers in Ireland and the UK have reported that the PSNI has returned to the Boston College archives, though the scope of the new fishing expedition remains unclear. I'm told by a person with knowledge of the latest developments that this story in the Guardian, claiming that "dozens of IRA and loyalist paramilitary veterans are facing arrest," is exaggerated, and the authorities do not appear to have obtained the full collection. 

Boston College, as usual, didn't respond to several requests for comment on the latest developments. 

(*Clarification, added later: A person familiar with the hearing in Belfast tells me that this was a draft of a court order prepared for the judge's signature, but he didn't sign it. Instead, the judge issued a verbal order from the bench that reflected the contents of this draft order. I have confirmed that the information in the draft order about the Sept. 11, 2014 letter to U.S. officials is correct.)

Tuesday, September 16, 2014

Say Anything: The DOJ Comes Clean on Retribution

For government lawyers, truth can be a contingent, situational, and highly malleable idea. And today we have new evidence of that fact. 

Three years ago, when Boston College filed a motion in a federal court to quash subpoenas of Belfast Project interviews, Assistant U.S. Attorney John T. McNeil flatly rejected the idea that the release of those interviews from a protected academic archive might endanger people involved in the project. You can read McNeil's July 1, 2011 brief here. But here's the relevant passage, from pg. 2:
While the Respondents make other equitable and factual claims, including the claims that the researchers will face retribution and that the disclosure of the materials will threaten the political stability in Northern Ireland, those claims falter in the face of close scrutiny. The researchers themselves, and the subject of the interviews, widely publicized their involvement in this oral history project long before the subpoenas in this case were issued. Moreover, the Respondents’ decision to publicize the issuance of the subpoenas – which had been kept under seal by the United States – belies any claim of such risk. If there were a substantial risk of retribution, the Respondents’ efforts to publicize the subpoenas would compound the purported problem, rather than mitigate it.
So the release of Belfast Project interviews would be no big deal: no risk to the political stability of Northern Ireland, no risk of retribution for people involved in the project. No good reason not to pry open the archive, your honor. No danger at all. They made this claim often and loudly; see also this example.

This week, Assistant U.S. Attorney John T. McNeil filed two documents with the same court -- a brief, and a supporting declaration -- to argue against a federal judge's proposal to publicly release documents filed under seal in the matter of the Belfast Project subpoenas. Why? Because, ladies and gentlemen, the release of material related to the Belfast Project endangers witnesses and might subject people to retribution.

Same prosecutor, same case. The material should be released, because warnings about retribution are silly; the material must not be released, because it's dangerous and people will get hurt.

Here's a link to the brief; the relevant language is on pg. 2, where McNeil writes that British officials "continue to seek that the materials remain impounded to ensure that evidence (both testimonial and documentary) is not destroyed or altered, and to ensure that witnesses and investigators are not subject to harassment, reprisals or tampering."

And here's a link to the supporting declaration, where McNeil writes that "the release of such information could unfairly impugn the reputation of those witnesses and suspects, or subject them to retribution."

Suddenly, three years later, the Department of Justice says the release of documentary material related to the Belfast Project threatens to subject people to retribution.  

So what does that say about the decision to pry the interviews out of the archive in the first place?