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.)