Saturday, August 22, 2015

Message from a Dogged Investigator

I sent an email message to Detective Inspector Neil McGuinness of the PSNI, asking him for comment on his recent letter to Ed Moloney (that he didn't send to Ed Moloney, because he doesn't know how to find him). I got this remarkable message in response:

Mr Bray,

The investigation into the abduction and murder of Jean McConville is on-going. Can you confirm that Mr Maloney has received my request that he contact me in the matter I referred to in the letter you have received? To date I have not received any reply from Mr Maloney.


Neil McGuinness
Detective Inspector

So there it is: In August of 2015, the PSNI's detectives are waiting for witnesses to get in touch with them about a 1972 murder. And they haven't quite figured out yet how to spell the names of the people they consider witnesses.

The swift and steady hand of justice, ladies and gentlemen.

Thursday, August 20, 2015

Charge First, Then Begin to Investigate

Below is an absolutely astounding letter from a Police Service of Northern Ireland detective to the Irish journalist and former Belfast Project director Ed Moloney. The letter is cut off at the top. This is the way it was sent to me, scanned it into digital form this way by the person who has the letter -- not Ed Moloney, who the crack detectives of the PSNI can't find.

This letter is amazing in many, many ways, but start with the date: August 7, 2015.

In the summer of 2015, the PSNI is beginning to ask people to cooperate as witnesses in matters relating to the 1972 murder of Jean McConville. That's well over a year after prosecutors in Northern Ireland filed aiding and abetting charges over McConville's murder against Ivor Bell, who is allegedly a former senior figure in the Provisional IRA. And it's well over a year since the PSNI arrested Gerry Adams and questioned him regarding McConville's murder.

This is how law enforcement officials in Northern Ireland are pursuing justice in the murder of Jean McConville: They filed charges last year, and they're trying to find some witnesses this year. I'm embarrassed for them.

Here's the letter:

Friday, July 31, 2015

Kick the Can, Continued

A representative of the Public Prosecution Service of Northern Ireland, speaking to the press earlier this month about the possible case against Gerry Adams over the murder of Jean McConville, with emphasis added: “It is anticipated that the processes involved in taking this decision will be concluded before the end of July.”

Most PSNI and PPS statements on the Jean McConville matter are eventually proven to be false.

Tuesday, July 21, 2015

Turd Passing

Endless. Shameless.

Ivor Bell, arrested and charged in March of 2014 for allegedly aiding and abetting in the 1972 murder of the Belfast widow Jean McConville, has bounced off the surface of the justice system ever since. After a long series of inconclusive court appearances in which prosecutors asked for more time to think about the charges, a Belfast judge finally gave the Public Prosecution Service of Northern Ireland an ultimatum this year: Make a decision or give it up. So we had many versions of this news story in early June of this year, after the PPS told the court they had definitely for sure decided to proceed:

"Ivor Bell to be prosecuted over Jean McConville murder."

That decision, the Irish Times wrote, "has ended mounting uncertainty over the case."

It surely hasn't. After the June 4 "decision," Bell was ordered to return to court on July 16 so the judge and the lawyers on both sides could figure out a date to begin a preliminary inquiry in the case. Today is July 21. You wouldn't know it from the newspapers in Ireland or the UK, but Bell did return to court on July 16 -- where no date was set for a preliminary inquiry. Instead, the PPS asked for another delay in the case.

The prosecutor assigned to prosecute Bell, they explained, is on maternity leave. And the other prosecutor assigned to the case in her absence hasn't had time to read the case files, yet.

For about the fifty thousandth time, I'll say that you can really feel the urgency, here. The criminal justice system in Northern Ireland will not rest until Jean McConville's killers are brought to justi- okay, wait, another prosecutor just went to the bathroom. Try again in October, your honor? Or we could, I don't know, pencil something in for 2020? That year is looking pretty solid for us.

In theory, the case is back in court in two weeks. Now taking bets on how many times the PPS can say they aren't ready before a judge is willing to mercifully put their case out of its misery. The dog continues to eat our homework, your honor.

I asked the PPS press office for comment, and will update if they respond. But they may need some extra time to think about it, for sure.

Sunday, June 28, 2015

The PSNI's Urgent Murder Investigation, Continued

Here's an an actual news headline from early July, 2013: "Boston College tapes: PSNI detectives get secret Dolours Price transcripts."

Two years ago, as part of their urgent investigation into the 1972 kidnapping and murder of the Belfast widow Jean McConville, police in Northern Ireland took possession of a set of taped interviews subpoenaed from the archives at Boston College.

Then, in March of last year, Belfast resident Ivor Bell was charged with aiding and abetting in McConville's disappearance. Those charges, not yet scheduled for trial or brought to court for a preliminary hearing, are now fifteen months old – staler than the wedding cake on Miss Havisham's banquet table.

One of the many problems with the possibility that Bell will be successfully prosecuted is a reality of the Boston College tapes that I reported on a long time ago: Boston College doesn't have an identity key, or many of the collection contracts, that would be needed to connect interviewees with their anonymously labeled interviews.

In theory, at least, one of the ways to successfully prosecute Bell would be to connect the tapes to the interviewees. One of the clearest ways to do that – again, in theory – would be to ask the interviewers to identify the interviewees. For tapes with former members of the Provisional IRA, the organization that took McConville from her home and killed her, the interviews were conducted by the former Provisional IRA prisoner and history PhD Anthony McIntyre. That would be the person you would want to question, if you were the police and you hoped to successfully prosecute former members of Irish republican paramilitary organizations.

So the police have now done just that. Anthony McIntyre lives in the Republic of Ireland, out of the direct reach of the Police Service of Northern Ireland, so a pair of Garda detectives appeared at his front door today and attempted to question him on behalf of their colleagues in the north. McIntyre's account is that he politely declined to offer them any answers, and they went away quickly and with equal politeness. And why not? It's not like anything much is at stake, at this point.

Two years after the PSNI took possession of the Boston College tapes, the police have made a desultory attempt to gesture at validating them. In 2015, they tried to ask some questions about the tapes they got in 2013. So they could solve the 1972 murder that they began to investigate in 2011. For the sake of kindness, let us assume that they just take plenty of naps.

We're having an annual development in the McConville murder, now. By 2032, give or take a decade, we could easily have a denouement of some kind.

Monday, April 6, 2015

Politics by Other Means

Here's a transcript of Sunday's 60 Minutes report on Gerry Adams and the murder of Jean McConville. The tell is at the start of the second paragraph, right below the picture: "Recently, old wounds split open when a history project by Boston College uncovered accusations of murder against the man who could be Ireland's next prime minster."

That's the point: The fear that Gerry Adams will be Ireland's next prime minister. It has been nearly a year since Adams was released from police custody, without charges, after being questioned over his role in McConville's death. Today he faces a stale investigation built on a foundation of hearsay from dead people, with a sprinkling of anonymous interviews on tape. Perhaps he'll still be stunt-charged for a while, ahead of the next elections in Ireland, before the charges are allowed to wither up and blow away in court but linger in public memory. In the end, Adams is as likely to go to prison over the murder of Jean McConville as I am.

And so we're left only with the actual point of the whole assault on the archives: 1.) A history project by Boston College 2.) ties a murder to the man who could Ireland's next prime minister.

Four years after the first subpoenas were served in Boston, we have no trial -- but lots of media coverage. As predicted, this is Irish politics, conducted by a police agency in the United Kingdom and the U.S. Department of Justice. This is not why societies have police.

Thursday, April 2, 2015

Shameful Prosecutorial Malfeasance In Belfast

The Public Prosecution Service of Northern Ireland has broken its own rules, and embarrassed itself in the process.

Ivor Bell was charged with IRA membership, and aiding and abetting in the 1972 murder of Jean McConville, over a year ago. He has returned to court several times since then, and in every instance, the Public Prosecution Service has asked for more time to think about the matter.

Two weeks ago, Bell returned to court – so that prosecutors could ask for two more weeks to think about the case.

This week, with that two week delay having passed, Bell returned to court again – so that prosecutors could yet again ask for another month to think about the case. Not that they promised a decision in another month, natch.

The news reports on this week's hearing say this: "A prosecutor said a meeting with senior counsel was due to take place on April 13 to discuss a 'very lengthy' recommendation from the Public Prosecution Service (PPS) on whether to proceed with the legal action."

More than a year after the PPS brought charges against Bell, they are preparing to have a discussion about "whether to proceed with the legal action."

The PPS has posted its own "Code for Prosecutors" online. This is what it says on pg. 9: "Where there are substantial concerns as to the credibility of essential evidence, criminal proceedings may not be proper as the evidential test may not be capable of being met."

In the case of the supposed evidence against Bell, a set of audio tapes from Boston College involving an anonymous interview subject, the PPS told a Belfast court that it would begin looking for a voice expert who could help them prove that the tapes contain interviews with Bell himself. To be specific, they told the court this important fact seven months after they brought the charges against Bell.

So they threw some shit at a wall, and are hoping – thirteen months later – that they can find a way to make it stick.

The decision to bring charges against Ivor Bell on unreliable evidence was unethical, irresponsible, and unprofessional. At some point, the PPS has to be forced to stop kicking that can down the road. They filed charges without knowing they could prove them. It's time to face that shameful failure.

Thursday, March 19, 2015

Happy Birthday to the Charges Against Ivor Bell

On March 18, 2014, the 78 year-old Ivor Bell was charged with having been a member of the Provisional IRA, and with aiding and abetting in the 1972 kidnapping and murder of Jean McConville. Today, March 19, 2015 -- a year and a day later, and 43 years after the crime -- Bell briefly returned to court in Belfast so prosecutors could ask for more time to think about his case.

No hurry, though.

Bell remains the only person charged with a crime as a result of the Belfast Project subpoenas served on Boston College. No one has been charged with actually kidnapping or killing McConville, the stated purpose of the subpoenas, and no suspects have been publicly named by the Police Service of Northern Ireland, though news reports have named Gerry Adams as the PIRA commander who allegedly ordered the killing.

A political effort continues to masquerade as a police investigation.

Thursday, March 12, 2015

Highly Private Front-Page News

Below is a letter from an office of the U.S. Department of Justice, denying a FOIA request for copies of the MLAT commissioner's subpoenas served on Boston College last year for Belfast Project interviews with Winston Rea.

While the DOJ refuses to release these subpoenas, the underlying federal court case involving the appointment of an MLAT commissioner -- and the response of Boston College to the subpoenas -- remains hidden from public view. I searched Pacer today for the case (again), and it still doesn't appear.

Absurdly, while the DOJ and the federal courts treat the Winston Rea subpoena (or subpoenas) as a closely held secret, those subpoenas are regularly the topic of news stories in Ireland and the UK, and the subject of a much-discussed legal challenge in British courts. The subpoenas are not a secret -- but the federal government continues to pretend that they are. Note that the secrecy of MLAT commissioner's subpoenas is far from guaranteed, and we now have copies of the subpoenas served on Boston College in 2011. Here's an easy example.

It's long past time for the DOJ, and the courts, to make public the thing that we already know about.

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.)