After more than a year of bumbling indecision, the Public Prosecution Service of Northern Ireland has taken a bold stand: They are beginning to prepare to think about discussing a way to begin. Franz Kafka, call your office.

Fourteen months ago, using questionable evidence obtained from the archives at Boston College with the assistance of the U.S. Department of Justice, prosecutors in Northern Ireland filed charges against Ivor Bell, who is now 77 years old. Bell is reputed to have been chief of staff to Gerry Adams during the period when the latter was allegedly the Belfast commander of the Provisional IRA, and he was charged in the 1972 kidnapping and murder of the Belfast widow Jean McConville. But he wasn’t charged with that kidnapping and murder; rather, he was charged with having aided and abetted in that crime.

Today, forty-three years after McConville was killed, no one has been charged with killing her, or even publicly identified as a suspect; Ivor Bell is accused of aiding a crime committed by ghosts. News stories have alleged that Adams ordered her killing, but even those claims lack the most basic facts: Who took her out of her home? Who drove her to the beach where her body was found? Who killed her? In the police version of events, which must necessarily underlie an allegation of aiding and abetting, what was the name of the person who pulled the trigger? In short, if Ivor Bell aided and abetted, whom did he aid and abet? Did Bell assist a self-firing gun?

After Bell was first charged last March, the PPS began a long delaying action that saw them returning to court every few weeks to ask for one continuance after another. Finally, this May, a judge in Belfast gave the prosecutors an ultimatum: Make a decision in June, or have the case thrown out of court. So they did. On Thursday morning, the PPS marched back into court to announce that they had decided to proceed with the prosecution of Ivor Bell. They return to court in six weeks.

They are not, however, returning to court in six weeks to begin to prove their case. Here’s how the Irish Times describes the next court date in its story on the most recent developments:

Mr Bell was released on continuing bail and ordered to come back to court in six weeks when a date will be set for a preliminary inquiry to establish whether the case will proceed to trial in the Crown Court. While the PPS lawyer said six weeks was needed before prosecutors would be in a position to set a date due to extensive preparatory work required, Bell’s solicitor Peter Corrigan questioned the timeframe.

If “extensive preparatory work” is required, what they have been doing for the last fourteen months? Never mind that: They will now begin to prepare. In another month and a half, we’ll know if prosecutors in Belfast are able to set a date for an initial hearing that might then, at some future point, lead to an actual trial. Perhaps at the hypothetical future trial someone in Northern Ireland’s system of law enforcement will be able to whisper the name of Jean McConville’s actual supposed murderer. But perhaps not.

The murder of Jean McConville has become a can to be kicked endlessly down a road. The U.S. Attorney’s Office in Boston must be very proud to have helped with this important effort.

The post Belfast Project: Chris Bray On The The Ivor Bell Case appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.

A political crisis in Northern Ireland should be a diplomatic crisis between the United States and the United Kingdom. And it should open a crisis of faith between American academics and the federal government.

In the last week, the British press has brought to light a series of secret promises offered to IRA members as part of the political settlement that established peace in Northern Ireland. The government of the UK sent at least 187 “on the runs,” republican militants wanted by the police, “letters of assurance” promising that they would not be prosecuted and could safely abandon their fugitive existence. As-yet-untold additional numbers of IRA members were graced with the Royal Prerogative of Mercy—official pardons—that immunize them from prosecution for crimes committed before the Belfast Agreement.

The secret letters were part of the political settlement that convinced the IRA to disarm. They came to light last week when former IRA member John Downey, accused of planting the bomb in a 1982 attack that killed four British soldiers, walked free from the courtroom where he was to stand trial for murder. Downey was among the IRA members who received letters of assurance; in light of the government’s promises, a judge ruled, he could not be prosecuted.

The full scope of the British government’s secret pardons and formal assurances of safety from prosecution has not yet been brought to light. We don’t know the names of every IRA member granted protection from the criminal justice system. But if the British government was trying, in the early 1990s, to end the violence in Northern Ireland, who would they offer to protect: peaceful outliers and minor actors, or the leaders and most serious militants in the organization with which it wished to produce a lasting peace? In any event, two things are clear: a substantial number of IRA members were secretly immunized from prosecution, and we don’t yet know all of their names.

Meanwhile, for the last three years, the US Department of Justice waged an aggressive (and ultimately successful) legal campaign to break into a sealed oral history collection in the Boston College archives of confidential interviews with former IRA members. The federal subpoenas served in the case sought interview material that would speak to the 1972 murder of Jean McConville, a Belfast woman killed by the IRA as a suspected informer for the British army. Dolours Price, a former IRA member who died last year, said shortly before her death that she was among those who kidnapped McConville and took her to her death. The order for the killing, she claimed, came from Gerry Adams, acting in his alleged capacity as an IRA commander. In short, the DOJ has been pursuing evidence to make a case against a leading Irish politician.

The DOJ was pursuing the IRA interviews because the British government asked it to, under the terms of the Mutual Legal Assistance Treaty (MLAT) between the US and the UK. But that treaty explicitly says that MLAT requests are only to be made when the requesting government is “investigating conduct with a view to a criminal prosecution of the conduct, or referral of the conduct to criminal investigation or prosecution authorities, pursuant to its specific administrative or regulatory authority to undertake such investigation.”

“Assistance shall not be available,” the US-UK MLAT goes on, “for matters in which the administrative authority anticipates that no prosecution or referral, as applicable, will take place.”

Shall not be available. If a case can’t be prosecuted, it can’t properly be the subject of an MLAT request from one government to another government. The treaty is for governments to get help with criminal cases that can lead to criminal charges, and nothing else.

So we have two questions that demand answers: Did the British government submit an MLAT request to the US government in pursuit of suspects who cannot be brought to trial for crimes, because they were among the IRA members secretly granted protection from prosecution twenty years ago?

And did our own Justice Department do its due diligence before it trespassed into confidential historical research, shamefully turning an American university into an evidence-gathering unit for law enforcement? Did they evaluate the British request, or did they just start typing up the paperwork for subpoenas?

The political crisis in Northern Ireland is rapidly getting worse, and the British press is wide awake to the presence of scandal. We will learn more, quickly. The emerging outline is of a government that promised not to prosecute IRA members, but has spent the last several years cynically pretending it would do just that.

I’ve been saying for three years that the inquiry into the McConville killing is a political campaign dressed up as a murder investigation. The evidence for that view just keeps getting stronger.

The post Belfast Project: Chris Bray Says “I Told You So!” appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.

The Supreme Court has turned aside a legal appeal from Belfast Project researchers Ed Moloney and Anthony McIntyre, and IRA interviews will likely soon be transferred from the archives at Boston College to the Police Service of Northern Ireland. (A more limited appeal from BC, still pending, relates to only some of the subpoenaed interviews.)

The Irish press has been busy covering this development, and the stories tell you everything you need to know about the federal subpoenas of confidential academic research materials. They all center on Gerry Adams, the Sinn Fein politician alleged to have ordered Jean McConville’s murder in 1972.

“Like his hero, Fidel Castro, Adams plans to go on and on,” reads an April 27 editorial in the Herald, a Dublin newspaper. “Until now many of us have given him the benefit of the doubt on both counts.”

But not anymore, the newspaper concludes:

“Meanwhile, Sinn Fein goes from strength to strength. As long as a growing number of voters conveniently forget about the hell that Jean McConville suffered, few among the Sinn Fein ranks will challenge their leader for life.”

This is the point of the effort to breach the Boston College archives, openly discussed in the Irish press as the object of the investigation: to stop Sinn Fein from going “from strength to strength,” preventing voters from conveniently forgetting the actions of the IRA,and convincing party members to challenge their leader.

This is not law enforcement.

Similarly, many of the Irish news stories about the pending release of the tapes say that the move could lead to the “downfall” of Gerry Adams. Here are some words and phrases you will not find in any of those stories:

• “prosecution”
• “murder charges”
• “arrest”

Because none of that is the point. The Herald does refer to the possibility that Adams will face “a case,” but everyone involved knows what case that is. The McConville family is likely to sue the Sinn Fein leader in civil court. This, too, has already been reported.

“We owe it to McConville to reveal IRA interviews and tackle Adams,” the Herald headline reads.

Gerry Adams is to be tackled, challenged, sued, unmasked before an audience of voters, and weakened before the members of his political party. He is not going to be convicted in a court of law on murder charges, and no one—no one, period—believes that he will be.

The U.S. Attorney’s Office in Boston is using federal subpoenas to intervene in Irish politics, not to assist in a British murder investigation. I have been saying this for two years. Now the Irish press is saying it too.

Will anyone bother to notice this act of political malfeasance? Or do we simply accept that federal prosecutors should loan their authority to foreign political causes?

The post Belfast Project: Boston Prosecutors as Irish Politicians appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.

Dolours Price is an open door, but two different governments are still hammering at the unobstructed doorway with a battering ram. “Open up!” they scream. The door just stands there, open. They go at it with the battering ram some more, grunting and sweating. They will not give up until the open door is opened. And somehow they aren’t kidding.

Acting on a request from the Police Service of Northern Ireland (PSNI), relayed under the terms of a mutual legal assistance treaty by the government of the UK, the US Attorney’s Office in Boston is working to obtain a set of recorded interviews between academic researchers and former IRA members. Each interview, commissioned and held by Boston College, was supposed to be treated as confidential until the death of the interviewee.

The PSNI is pursuing information regarding the 1972 kidnapping and murder of Jean McConville, a Belfast widow killed as a suspected British Army informer. Chasing that narrative in deadly earnest, federal lawyers have insisted throughout a long court battle that they are assisting in a murder investigation. Secrets will be uncovered. Killers will be marched into court. Justice will no longer be denied.

Journalists covering the case have adopted this very same line, interviewing one of McConville’s daughters on the solemn premise that the family is searching for the truth about what happened to their mother.

But they already know what happened to their mother, and so do the police. You can join in the secret club: the answers are available from Amazon.com, and can be delivered to your front door with next-day delivery. The secret of Jean McConville’s death is, at this point, the least secret secret in the history of secrets.

Yet the absurdity continues.

The first sign that the PSNI was up to something strange and ridiculous came with the first two sets of subpoenas, which sought materials from interviews with two former IRA members, Brendan Hughes and Dolours Price. But Hughes was dead, and his interviews were no longer embargoed. They had been used in a book and a film. The PSNI and the US Attorney’s Office needed a subpoena the same way you need a court order to go to the public library and check out a copy of To Kill a Mockingbird.

Or they could have just watched the Brendan Hughes interviews on YouTube, but never mind: there was super secret international sleuthing to be done, and Google is really complicated.

While Boston College promptly handed over copies of the no-longer-confidential Brendan Hughes interviews, a pair of court challenges have so far prevented the U.S. government from obtaining the tapes of the Dolours Price interviews, as well as several others related to a second set of subpoenas. But the battle in court drives on, and appears to be nearing its end in the United States. (A separate legal challenge is underway in Belfast.) Soon, it appears, prosecutors in Boston will get their hands on Price’s tapes, and we’ll at long last know what happened to Jean McConville. Which we already know, because of the published books and the feature-length documentary that you can stream over the Internet.

Finally, though, the last week has brought the full absurdity of the alleged murder investigation fully into the light. In a series of newspaper and television interviews, Price has said—absolutely plainly, in unembarrassed and detailed statements—that she participated in the kidnapping and murder of Jean McConville, and did so under orders from Gerry Adams. Admitting that she joined a conspiracy to commit kidnapping and murder in two jurisdictions—the IRA took McConville from her home in Belfast, drove her south across the border, and killed her on a beach in the Republic of Ireland—Price faced immediate and devastating legal consequences: she finished her tea and went to bed. The police in the South have not arrested her; the police in the North do not appear to have sought her arrest and extradition. She said she did it, loudly and in public, and nothing happened.

But we must have Dolours Price’s secret interview tapes, so we can get to the bottom of Jean McConville’s murder and bring her killers to justice.

Next they’ll subpoena a candy wrapper so they can find out the ingredients.

The post The Dolours Price Tapes: The Least Secret Secret in the History of Secrets appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.

“The game is rigged. But you cannot lose if you do not play.”

—Marie Daniels

Judges are careful people, and it’s always an interesting moment when they say things they don’t need to say. At a district court hearing on Tuesday, Judge William Young ruled that researchers Ed Moloney and Anthony McIntyre do not have legal standing to sue Attorney General Eric Holder and a federal prosecutor in Boston who has sought to enforce subpoenas for confidential archival materials on paramilitary organizations that were active in Northern Ireland during the Troubles.

That closed the matter: no lawsuit could be sustained. The end. Pending resolution of an appeal, the DOJ will ultimately receive all or part of the interviews that eight former IRA members granted to the Belfast Project at Boston College, despite assurances that the interviews would be kept secret as long as they were alive. They will pass those interviews along to police in the UK for political theater against enemies of the British state, in the matter of a forty year-old murder that no one had ever bothered to seriously investigate before. (BC immediately surrendered a ninth set of interviews to the government last year, as the interviewee’s death had mooted the promise of confidentiality.)

But then the judge kept talking. After issuing his ruling, Young added his assurances that he would have sided with the Department of Justice on the merits, had the case ever reached that point. Holder, he concluded, had properly performed the balancing test required of him by a legal assistance treaty between the US and the UK; the subpoenas the DOJ sought on behalf of the British government were appropriate and reasonable.

Place this unneeded revelation against Young’s statements, during the hearing, about the project Moloney and McIntyre undertook to interview people who fought in a long, low-grade civil war: “I’ve read thousands of pages of the transcripts. This was a bona fide academic exercise of considerable intellectual merit.”

Young also conceded the threat the subpoenas present to oral history, the importance and value of which he readily acknowledged.

Here, in a ten-minute discussion, are the challenges academic researchers face in court when they study topics and organizations that anger the state. The judge says that the specific research is legitimate and valuable, that academic research is generally important and deserving of protection, that individual researchers have no standing to contest subpoenas of archived material that their institutions fail to defend, and that a third of a protected and politically explosive archival collection must be surrendered to a government that ignored the crime at hand for several decades.

Put that a little more simply: in court, controversial research is not protected from government intrusion. When the government claims to be seriously investigating major crimes, however implausibly, researchers will not win. The judge is not on your side, and under those circumstances cannot ever be expected to be.

Nor do academic researchers have protection in the wisdom of the executive branch agencies that pursue these subpoenas in the first place. As I’ve argued many, many, many times, the Boston College subpoenas serve a nakedly political inquisition into enemies of the British state. It is not a murder investigation in any usual sense, despite the unrelentingly obtuse efforts of federal prosecutors to understand it on those terms. A government lawyer is a bureaucrat, a blunt object in a suit, and would subpoena a milkshake if someone told him to. (And then stand in the hallway outside the courtroom and make solemn statements to the credulous press about the centrality of Defendant Milkshake to the gravest evils of our time.) As with most things in our historical moment, you cannot trust government institutions to be smart or careful or reasonable. They are broken. They exist to serve their own interests.

But there is a solution. It’s ugly, costly, and painful, but a solution nevertheless.

In 1993, Rik Scarce was a Ph.D. candidate at Washington State University, where he researched radical environmentalist and animal rights groups. After an attack on a university animal research lab, Scarce was subpoenaed to appear before a federal grand jury and testify about his personal discussions with members of the Animal Liberation Front. He refused to offer that testimony, prompting a federal judge to jail him for contempt. The judge gave up 159 days later, and ordered Scarce’s release. He never talked.

I didn’t know about Rik Scarce until recently, when Anthony McIntyre brought to my attention a 2001 article by John Lowman and Ted Palys, “The Ethics and Law of Confidentiality in Criminal Justice Research: A Comparison of Canada and the United States.” Lowman and Palys identify several instances in which academic researchers and institutions have simply refused to cooperate with police and prosecutorial trespass on research.

Among the most striking incidents was the FBI’s efforts to obtain research material from the Kinsey Institute at Indiana University. The institute signaled that they would not comply with a subpoena, forcing the FBI to consider what steps they would take to enforce it. The refusal to cooperate ended the threat. As Lowman and Palys wrote, “The FBI withdrew when members of the Institute made it clear that, regardless of the legal consequences, they would not release confidential research information.”

Lowman and Palys describe the “general response of researchers to threats to confidentiality from the third parties, be they agents of the state or private litigants,” with three words: “resistance, resistance, resistance.” (If they update the article, they’ll have to add a fourth word for Boston College, breaking the pattern.) Their article is important reading, suggesting ways to design and conduct research in the first place and to defend it in court when a subpoena arrives. If you’ve followed the BC subpoenas closely, and care about the problems that those subpoenas suggest, it will be well worth your time to read it.

But the final lesson I took away from Lowman and Palys is the same lesson I got from the federal court hearing this week: at some point it simply becomes necessary to refuse, and to pay for the refusal. Ted Folkman, a Boston lawyer who has followed the BC subpoenas with close attention, recently took up this very question:

[T]he subpoena recipient is Boston College itself, not an individual. There are certainly cases where an individual’s professional ethics require the individual to refuse to comply with a subpoena even if the subpoena is enforceable. Thus reporters are prepared to go to jail to protect confidential sources. But does it make sense to ask an organization such as a major college to do likewise? I think not, because institutions have responsibilities to many people, not just to a single constituency.

My conclusion this week, after watching the court make sausage, is just the opposite. Institutions that sponsor research need to protect that research, or they’ll become hollow shells that only host projects safe enough to never need protection.

Academic researchers, and the institutions that house them, cannot comply with subpoenas if doing so betrays and endangers research subjects. They need to break the law.

Because, as the BC subpoenas show, it’s already broken.

See also.

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