The Justice Department’s Assault on Northern Ireland’s Peace Process and the First Amendment0

by Dustin Slaughter

Oral histories of political movements give us glimpses of the participants who helped shape the world we know today. They often provide raw, personal first-hand accounts of peoples’ struggles. These projects also help to maintain historical truths that are often tainted by government revisionism and lost to cultural amnesia.

Tacit confidentiality agreements between historians and interviewees are naturally crucial to the birth of these histories.

So what happens when the Department of Justice and the Police Service of Northern Ireland decide to violate the spirit of a treaty between the United States and the United Kingdom by subpoenaing a confidential collection of taped interviews detailing Northern Ireland’s militant past?

The purity of historical record, as well as fundamental First Amendment issues like freedom of the press, and more specifically source confidentiality, are now under attack by none other than US prosecutor Carmen Ortiz – the same district attorney criticized for what many people called overzealous prosecution that likely led to activist Aaron Swartz committing suicide – and the DOJ, at the behest of Northern Ireland’s police forces. These parties apparently see fit to enflame a tenuous peace in Northern Ireland by tearing open historical wounds through their desire to prosecute former Irish Republican and Loyalist paramilitaries for unsolved crimes.

Beginning three years after the 1998 Good Friday Agreement, heralded by some as the beginning of a new – and peaceful – chapter between the United Kingdom and Northern Ireland, journalists Ed Moloney and Anthony McIntyre began tape recording interviews with members of Irish paramilitaries and their Loyalist foes. Their objective was to contribute a better academic understanding of what motivated otherwise ordinary individuals to join the armed conflict, as well as document the turbulent and important history known as The Troubles. They concluded their interviews in 2006 and the Belfast Project is stored today in Boston College’s Burns Library.

The lynchpin of the project was the confidentiality agreement McIntyre and Maloney forged with participants – from both sides of the conflict – some of whom divulged the names of militants. The stories were not to be released without their written consent or until their death.

Fast forward to 2011, when the Department of Justice, by way of a Clinton-era initiative called the US-UK Mutual Legal Assistance Treaty (MLAT), attempted to force Boston College to release the tapes by recklessly (and improperly, as I’ll address below) subpoenaing these confidential interviews at the behest of the Police Service of Northern Ireland (PSNI).

Authorities claim that Belfast Project interviews will assist in investigating the re-opened case of Jean McConville, who was kidnapped and murdered by the Provisional IRA in 1972. Current Sinn Fein leader Gerry Adams, among others, have been implicated in the crime. Republican militants admitted their culpability some 20 years later.

Some, like Anthony McIntyre – a writer, historian and former IRA member who was jailed for 18 years in Northern Ireland’s infamous Long Kesh prison and was released in 1996, believe the motivation for the subpoena is more complicated – and sinister – than a mere desire to solve a horrible crime that happened in 1972 however.

“[The justice angle] does not have much traction, given that the PSNI was heavily involved in using law enforcement to break the law and immerse itself as a player in the conflict [during the Troubles],” he tells me through email.

“It is certainly not interested in solving homicides per se. It is interested in the selective solving of some homicides. Hence we have killings involving state agents not being pursued but others involving people opposed to the state pursued.”

The checkered history of Northern Ireland’s security forces supports McIntyre’s suspicion that the subpoena is politically motivated. The former incarnation of the PSNI, from 1922 until 2001, was the Royal Ulster Constabulary (RUC). This law enforcement organization has a storied history of human rights transgressions, as detailed in a number of reports, including one issued in 1991 by Human Rights Watch, which cite a wide range of abuses against Irish nationalists and which also point out numerous instances of RUC collusion with Loyalist paramilitaries.

Most notably, two members of a special anti-terrorist unit within the RUC known as the Special Patrol Group were convicted in 1980 of giving aid to Loyalist forces in the form of transportation, kidnappings, shootings and bombing attacks.

Besides these two Special Patrol Group members, no RUC or PSNI officers have ever been charged with crimes.

But it is what McIntyre calls the “retire and rehire” phenomenon taking place within the RUC-turned-PSNI that gives him the greatest doubt that Good Friday Agreement reforms have changed the police force’s apparent anti-nationalist leanings. A watchdog audit of the PSNI in 2011 found that almost 20% of the over 5,000 RUC officers laid off under reforms were rehired. The report describes the organization’s apparent reversion to its RUC roots as “out of control,” according to the Guardian, which ran the story in October 2011. The push to enter more Irish Catholics into the police force, a key reform from Good Friday, is clearly being rolled back.

And the Boston College subpoena, in light of all this, may very well be a political fishing expedition designed, at least in part, on hunting down old enemies of the British state.

Two plausible scenarios could emerge if the DOJ and PSNI are successful in accessing the Belfast Project interviews: Sinn Fein leader Gerry Adams will face prosecution for his alleged involvement in Jean McConville’s murder. Irish nationalist rage would likely spill out into the streets of Belfast.

Conversely, the PSNI may do nothing with the archive. If that happens, McIntyre tells me, “the British government decides it is too politically sensitive – not least for what may be revealed about their own knowledge and activities – to bring forward any criminal prosecution. Loyalist reaction to this will be, predictably, outrage. They will hardly accept, especially given the lengths that the British are going to obtain this material, that it was worthless.”

Clearly, either outcome could set off the tinderbox – and the two journalists who created the project have, since 2011, been consumed with preventing the potential unraveling of Northern Ireland’s peace process.

They’ve also rushed to protect what they correctly perceive as an erosion of journalistic freedoms enshrined by the First Amendment here in the U.S. More on this latter point shortly.

Anthony McIntyre and Ed Maloney began their protracted legal battle with prosecutor Ortiz after Boston College refused to appeal a lower court’s decision that the DOJ’s grab at the archives was legitimate. The two men found support from the ACLU of Massachusetts, the Reporters Committee for Freedom of the Press, and the Irish American Coalition, all of which added amicus briefs to the case. After two years of overturned appeals, McIntyre and Maloney finally kicked the case up to the Supreme Court – only to have the High Court refuse to hear it last week.

With that final blow, every legal avenue is now exhausted.

This leaves only a political redress through a newly-minted Secretary of State John Kerry who, before taking the post this year, served on the Senate Foreign Relations Committee. In a January 2012 letter to former Secretary of State Hillary Clinton, Kerry expressed concern “about the impact that [the subpoena] may have on the continued success of the Northern Ireland peace process.”

Senator Kerry added: “It is possible that some former parties to the conflict may perceive the effort by the U.K. authorities to obtain this information as contravening the spirit of the Good Friday Accords.”

As noted earlier, the DOJ’s actions most certainly violate the spirit, if not the letter, of the U.S. – U.K. Mutual Legal Assistance Treaty. In a report submitted by Senator Richard Luger in September 2006, Luger states:

“The Senate’s understanding [is] that the purpose of the Treaty is to strengthen law enforcement cooperation between the United States and the United Kingdom by modernizing the extradition process for all serious offenses and that it is not intended to reopen issues addressed in the Belfast Agreement or to impede any further efforts to resolve the conflict in Northern Ireland.”

Kerry and Luger were not alone in their concern.

New York Senator Charles Schumer expressed consternation that the DOJ’s subpoena not only threatened to destroy a fragile peace across the Atlantic, but that it targeted freedom of the press. In a letter sent to both Secretary of State Clinton and Attorney General Eric Holder, Schumer stated:

“There are significant issues of journalistic confidentiality and academic freedom that are called into question as a result of this legal maneuver that make it dubious…I have always been a champion of protecting sensitive source material that is gathered by researchers – journalists and academics alike—and I am concerned that this action presents an infringement on that underpinning of the First Amendment.”

One need only look at the DOJ’s dogged pursuit of activists, such as the late Aaron Swartz, to see how far the Justice Department will go to score wins in court. It is not a stretch to believe they could use subpoenas to violate journalist-source confidentiality in future cases.

With over 100 similar bilateral assistance treaties between the U.S. and other countries in existence today, the threat this subpoena poses may have far-reaching – and unimaginable – consequences for international political movements, freedom of dissent and our own First Amendment.