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 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 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.

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?

Thursday, September 4, 2014

A Parody of a Satire of a Farce

Ivor Bell was back in court this week, where his lawyer asked the judge to throw out the increasingly weak and stale charges against him. Here's how the Belfast Telegraph explains the judge's response:

"But after being told prosecutors want another eight weeks to consult with police, District Judge Fiona Bagnall indicated that the defence application should wait until full papers are served."

Ivor Bell was arrested in March. Now, in September, prosecutors in Northern Ireland can't make a decision about whether or not to pursue his prosecution, because they need some time to consult with the police on the case.



If six months of consultation hasn't been enough, another two isn't going to help. Give it up, folks.

Tuesday, September 2, 2014

The Urgent Search for Justice in a 1972 Murder, Cont.


Ivor Bell was arrested in March. It's now September, and his prosecution has not gone forward. When, if ever, will he brought back into court? Six months, no action, dead silence.

Gerry Adams was arrested at the end of April. It's now September, and no decision has been announced regarding the possibility he'll be charged in Jean McConville's 1972 kidnapping and murder.

At about the same time, Helen McKendry said publicly that she knew who had kidnapped her mother, and said she would go to the police to name names. It is now September, and we have no public indication that the PSNI has acted upon, or even received, the information that McKendry said she was about to bring to them.

Someone at the PSNI leaked the news, back in May, that the police would be returning to the archives at Boston College for new subpoenas of the entire Belfast Project. It's now September, and there are no publicly available signs that those subpoenas were ever served.

The investigation into the murder of Jean McConville has stalled or evaporated. It's time for the PSNI and the PPS to either take action or provide some explanation. What has been the point of all this?

Do it or give it up, publicly and explicitly. It's time.

Thursday, July 17, 2014

Astoundingly Obtuse U.S. Policy Vision

Several news sources covered the July 15 confirmation hearing of St. Louis lawyer Kevin O'Malley, who was recently appointed by President Barack Obama to be the new U.S. ambassador to Ireland. But none fully caught the implications of his unfortunate answer to a question from Senator Tim Kaine, a Virginia Democrat, regarding the ongoing PSNI effort to seek subpoenas of confidential Belfast Project interviews archived at Boston College.

Kaine asked if the PSNI was "re-litigating" the Good Friday Agreement. O'Malley's answer can be seen on video here (fast forward to 1:20:00). Here's what O'Malley said about further subpoenas:

"The Boston College study, which was a totally private, academic interest, here, the release of any more of the data in that I don't believe will affect the peace process. I think that the accords are strong, I think there's been now sixteen years of experience with them. So that the truth, or whatever is found in the Boston College study, will not cause anyone to repudiate the accords or go backwards."

O'Malley went on to say that the arrest of Gerry Adams shows the need for the adoption of the Haass proposals, but the willful blindness of the first part of his answer negates any sense or value that the second part might have offered. The Boston College archives contain more than a hundred interviews with dozens of people who participated in loyalist and republican paramilitary organizations. Those interviews will necessarily contain detailed descriptions of serious violent action on both sides of the Troubles. And the State Department, represented here in the person of the soon-to-be-ambassador to Ireland, takes the position that the wholesale dumping of all of that sensitive material into the politics of Northern Ireland will have no affect on the peace process, because the peace is a virtually ancient and wholly secure sixteen years old. And then the second part of his answer acknowledges that no political framework has been established in Northern Ireland for managing questions about the past.

Compare the current view of this person nominated for a senior position in the State Department to the recent -- and apparently repudiated -- view once held by his soon-to-be-boss. John Kerry was certain in 2012 that a set of initial and relatively limited Boston College subpoenas were a threat to the peace process; now, apparently, not so much. Magic!

Ambassador-nominees are prepared for their confirmation hearings with a review of policy and a discussion of talking points. If Kevin O'Malley is telling the Senate Foreign Relations Committee that the full release of all Belfast Project materials will have no effect on the peace process in Northern Ireland, he's telling us the policy position of the U.S. government.

They are not paying attention.

Friday, July 11, 2014

All That Is Solid Melts Into Air

The Police Service of Northern Ireland

In October 2012, news stories announced that the Police Service of Northern Ireland would be pursuing subpoenas of tapes and notes from interviews with former IRA member Dolours Price. The PSNI had already gone after Dolours Price interviews archived at Boston College, but this new effort was to be directed at the newspaper and TV journalists who had interviewed Price about the BC subpoenas. In the crosshairs: CBS News and the Sunday Telegraph.

More than a year and a half later, there is no evidence that those subpoenas ever arrived. When Sinn Fein leader Gerry Adams emerged from his four-day interrogation at the PSNI's Antrim station, he said that police had confronted him with material from the Boston College interviews; he made no mention of CBS or Telegraph materials. And my own tedious search of Pacer, the federal court case management website, turns up no evidence of subpoenas served on CBS News headquarters in New York. 

To be sure, we can't see very far into the underlying events, and it's not clear what kind of contest may have taken place over this threat of subpoenas directed against journalists. I've been asking journalists and public affairs staff at CBS News and the Telegraph if they received subpoenas, or discussed the possibility of subpoenas with the PSNI, but those questions have gone entirely unanswered. Liz Young, the public affairs director at the PSNI, offered this careful non-answer to my questions: "Given that investigations are ongoing we are not in the position to either deny or confirm that a subpoena was sought and no inference should be taken from this." So the conclusion has to balance the likely with the wholly unknown: It appears that the PSNI threatened journalists with subpoenas, but then didn't follow through, and it's not possible at this point to know why the threatened subpoenas apparently didn't arrive.

Now: Spot the pattern. In May of this year, a new round of news stories announced that the PSNI would be seeking new subpoenas to secure every Belfast Project interview archived at Boston College. Again, no one is answering questions, but there's no sign that those subpoenas have arrived.

Meanwhile, the high-profile arrest of Gerry Adams resulted in nothing more than the four-day-long collapse of the PSNI's souffle. Three years after the Grand Inquisition began, Adams is a free man, and would not seem to have much reason to worry. The other big event in the PSNI's supposed murder investigation was the March arrest of former IRA leader Ivor Bell, long purported to have been chief of staff to Adams in the 1970s IRA in Belfast. Bell was charged with aiding and abetting McConville's murder, not with committing it; as yet, the PSNI hasn't charged a single person with actually kidnapping McConville or actually killing her. And Bell is also a free man, released on bail as the Public Prosecution Service tries to decide whether or not to bother taking the charges to trial. They do not seem to be in any particular hurry.

So the PSNI's "investigation" into the 1972 murder of Jean McConville -- an investigation opened 39 years after the event -- has made more noise than progress: some arrests that led to the release of those arrested; an arrest, with weak and likely to be abandoned charges, of someone who isn't alleged to have killed McConville; and a storm of threats and promises that have mostly seemed to evaporate. 

The available evidence continues to support the argument that I've now been making for more than three years: The PSNI is putting on a show, not a murder investigation.

But then spot the other pattern: Many news stories reported the PSNI's claim that it would subpoena CBS News and the Telegraph; none reported that the subpoenas didn't arrive. Many news stories reported that the PSNI would be pursuing the whole Belfast Project archive at Boston College; no news stories have reported that those new subpoenas haven't been served. Many news stories reported the dramatic arrests of Adams and Bell; few journalists appear to have noticed that the air has leaked out of those arrests.

In Indonesia, puppeteers perform Wayang Kulit, a theater of shadows in which images are projected on a screen by performers who stand behind it. The PSNI is the Dalang, the puppeteer, in the shadow play of the Jean McConville "investigation." And the news media continues to treat the play as real life.

Monday, June 23, 2014

Urgent Murder Investigation (cont.)

On May 22, BBC News reported that detectives in the Police Service of Northern Ireland had decided to pursue new and very broad subpoenas of the Belfast Project archives at Boston College. The BBC reported that news in the present tense, writing that the PSNI "is seeking" all of that archival material.

Today is June 23, and more than a month has passed. Neither the Department of Justice nor Boston College will answer questions from me, anymore, and the PSNI never did in the first place. It's possible that the PSNI is actively pursuing subpoenas, and it's possible that the DOJ is actively preparing those subpoenas. But I searched Pacer, today -- that's the case management system for the federal courts, where case documentation can be accessed and downloaded -- and I can find no sign that new subpoenas have been prepared or served.

Time will tell, but I wondered last month if the PSNI was wagging its dick at critics, in a fit of pique, with a piece of public theater that was designed to produce fear and worry rather than real investigative gains. How often do you see police departments announcing in the newspaper who they're going to raid next week?

In any event, the other shoe does not appear to have dropped, or at least not yet. Let us hope that some politicians and criminal justice bureaucrats have come to their senses.