Researchers Weigh In On Belfast Project Legal Drama

By David Cote

News Editor

Published: Wednesday, February 15, 2012

Updated: Wednesday, January 9, 2013

belfast 2/16/12

Matt Liber / For The Heights

Editor’s Note: This story is part of an ongoing series about the subpoena of the Belfast Project.

 

The Belfast Project started as an historical effort by Boston College intended to preserve the experiences of men and women on the ground during “the Troubles,” a period of violence and political turmoil in Northern Ireland that lasted from the 1960s to 1998. Over the past nine months, the project has developed into far more—an international legal episode with high tensions and even higher potential consequences.

Last May, tapes from the Belfast Project were subpoenaed by the United States federal government, on behalf of the United Kingdom, as part of an ongoing investigation by the Police Service of Northern Ireland (PSNI) into the death of Jean McConville, an Irish widow and mother of 10 who was murdered in 1972. The U.S. government issued the subpoenas pursuant to a Mutual Legal Assistance Treaty (MLAT), an agreement between the two countries to exchange information in the interest of solving crimes, which they believed applied in the case of the Belfast Tapes.

Last year, the Department of Justice successfully subpoenaed interviews with two former IRA members who participated in the Belfast Project, Brendan Hughes and Dolours Price. The second set of subpoenas specifically called for the procurement of any and all interviews that contained information relating to McConville’s death, and have posed far greater legal difficulties.

BC filed a motion to quash the subpoenas last June, but was ordered to hand over the tapes on Dec. 27 by Judge William Young. At that time, the University did not file an appeal on the decision, but reserved the right to appeal at a later date. Young was to review the tapes and select those that he believed fit the description of the subpoena, as relating to McConville’s death. Young eventually revealed that seven of the tapes held by BC were relevant to the investigation and should be handed over to the British authorities. BC still reserves the right to appeal, and is deliberating whether or not it will, according to University Spokesman Jack Dunn.

Beginnings

 

The Belfast Project began in the early 2000s under the direction of Burns Librarian Robert O’Neill and Thomas Hachey, executive director of the Center for Irish Programs. The two spoke with Paul Bew, now a member of the British House of Lords, while he was a visiting professor at BC in 1999 and 2000, about the possibility of beginning an oral history project regarding the Troubles. Bew returned to Ireland and spoke with Ed Moloney, an Irish journalist and former schoolmate of Bew’s, who became interested in the possibility of directing such a project. Moloney referenced a similar project conducted by the Irish government after the Anglo-Irish War as part of his motivation for becoming involved in an oral history of the Troubles.

“[The Irish oral history project] was a very, very valuable historical archive and it was conducted and paid for by the government,” Moloney said in an interview. “I had always been an admirer of this. I had thought, ‘Wouldn’t it be great to do something like this in Northern Ireland and the Troubles?’ for a very simple reason, and that is that history books and accounts of history are normally written by the leaders—by the people who are the generals and politicians, who emerge at the end of the day at the top of the heap. Very rarely do they reflect the views or the experiences and life stories of people who are at the ground level in these conflicts.”

Moloney also cited the length of the Troubles as a reason to get involved immediately. Participants who had been involved with the conflict were getting older and many were dying, making the necessity of starting the project all the more pressing.

Former IRA member Anthony McIntyre, and Wilson McArthur, who had ties to loyalist groups like the Ulster Volunteer Force (UVF), both signed on as lead researchers for the project in the interest of chronicling the Troubles, a period of Irish history that will likely draw considerable interest in the future.

“It held the potential to be a very valuable vein of research, and I think most researchers on the conflict would have jumped at the opportunity to be involved in that type of project, given the new material that it was certain to uncover,” McIntyre said in an interview.

“My motivation for involvement in the project was a belief that what was being proposed could prove to be of immense value to future generations studying the conflict in Northern Ireland,” McArthur said. “Time was literally running out for primary sources, and BC was in a unique position to capture the testimony of those sources for posterity.”

Dunn also emphasized BC’s longstanding dedication to Irish history as an impetus in proceeding with the project. “BC is America’s leading institution on Irish history, literature, and culture,” Dunn said. “We have the largest repository of materials regarding the history of Northern Ireland, including the decommissioning archive.”

In turn, Moloney was hired by BC as director of the Belfast Project. Moloney subsequently hired McIntyre, who interviewed republican participants, and McArthur, who interviewed loyalist participants.

 

Confidentiality

 

Since the subpoenas were served last spring, Moloney and McIntyre have strongly supported the fight to keep the tapes out of the hands of the PSNI, saying that from the outset, BC made promises of confidentiality to those participating in the project.

“Clearly from the outset, the concern of people who were going to be involved from the interviewing point of view was the security and safety of the archives,” Moloney said. In a meeting between Moloney, McIntyre, and O’Neill that occurred in downtown Belfast at the start of the project, Moloney emphasized that the two were promised confidentiality.

“Essentially, the outcome of that meeting was that this project would not get underway unless Burns Library could be absolutely sure that the material was not in any sort of risk at all of being swallowed up by security people in one form or another, and that was the basis upon which we then moved forward,” Moloney said.

McArthur, whose interviews were not subpoenaed, argued the same in an e-mail with The Heights. In a separate meeting from that mentioned above, McArthur, “accompanied by someone with considerable influence” in the area where his research was to take place, also met with O’Neill.

“I was given, personally by the Burns Librarian, guarantees of confidentiality that were both unambiguous and unconditional,” McArthur wrote in an e-mail. “Every discussion I had with both the Burns Librarian and the [Executive] Director of Irish Programs centered on how the project was developing and on each occasion the issue of how confidentiality underpinned everything was discussed. It could not have been more clear in all discussions with BC staff that this project would never have been possible without the absolute guarantee of confidentiality which predicated the whole thing.”

In response to the promise of confidentiality, McArthur stated that he specifically asked about the possibility of a subpoena on behalf of the PSNI. “I was told categorically, and this is confirmed by the third person at the meeting, that BC had taken legal advice on this and the guarantee of confidentiality was iron clad; that there was no possible way this material could be accessed or used by anyone outside the terms of the donor agreement (i.e., death or consent),” McArthur wrote in an e-mail.

Moloney emphasized to a great extent the appearance of legitimacy on behalf of BC’s claims. “We were dealing with a prestigious college in North America, a college which had been very deeply involved in the Irish peace process,” Moloney said. “These were, from our point of view, all very honorable people, so we had no reason to doubt these assurances that we were given.”

“The interviewees were given a contract drawn up by Boston College that stated that they had the ultimate power of release,” McIntyre said in an interview.

On the other hand, Dunn stated that the University made no such promises, and in fact informed Moloney and McIntyre of the risk of subpoena and the danger such a situation could pose to the archives. He admitted that the language “to the extent that American law provides” was not found exactly in the donor agreement, but stated his belief that the contract was drawn up by Moloney, not BC.

“BC warned Moloney and McIntyre explicitly of the threat of a subpoena,” Dunn said. “However, BC could not extend the warning to the interviewees because we did not interview them, and we never met them.”

Moloney said that he and his two lead researchers proceeded with the project interviews on the basis of confidentiality.

Throughout the early 2000s, at least 24 interviews were conducted with former members of the IRA by McIntyre, who has a Ph.D. in the history of Irish Republicanism. Those involved in the project, including interviewees, were sworn to secrecy about the project’s existence and scope. When the interviews were completed, they were securely transported to Burns Library and locked away. The archives were undisturbed for nearly five years.

 

Subpoenas

 

After the death of Hughes in 2008, Moloney authored a book, based partially on Hughes’ interviews with Belfast Project researchers, called Voices from the Grave, published in March of 2010. The book detailed Hughes’ experiences during the Troubles, and brought much attention to the Belfast Project in general. “The book was meant to be the unveiling of the archive, the announcement that it existed,” Moloney said. On the other hand, Dunn claimed that the University planned no such unveiling, and pointed out that Moloney was the sole person to profit monetarily from the book.

In 2010, Price gave an interview to a Belfast-based newspaper, The Irish News. At the time, she was under psychiatric treatment and was suffering from post-traumatic stress disorder as a result of her experiences during the Irish hunger strikes and as an IRA member. The Irish News decided not to go forward with the story, but a Belfast tabloid, Sunday Life, wrote articles based on the interview.

Frustrated with Gerry Adams, an alleged former IRA member and current leader in the Irish republican political party Sinn Fein, and his denial of IRA membership, Price spoke critically of him in the interview. “During the same interview she also sensationally claimed Gerry Adams masterminded the disappearance of Jean [McConville] and three other IRA murder victims whose bodies have not yet been found,” the Feb. 21, 2010 edition of Sunday Life read.

From these interviews, it became known that Price participated in an interview with BC, and her comments to the Belfast publications regarding Adams’ involvement in McConville’s disappearance formed the basis of the subpoena of the tapes by the PSNI.

Dunn claimed that Moloney’s book, combined with Price’s interview, brought about the subpoena of the tapes.

“Mr. Moloney is not taking any responsibility for the subpoenas,” Dunn said. “He is trying to deflect blame from himself to BC when it is clear that his book and Dolours Price’s interview were the catalyst for the subpoenas.”

Moloney, however, disagreed with the existence of the subpoena from the beginning. “My argument from the get-go has always been that the subpoena was fraudulent and flawed, because no one knew what was in the Dolours Price interview except myself, Anthony McIntyre, Bob O’Neill, and Dolours herself,” Moloney said.

Regardless of their validity, the subpoenas have stirred debate on both sides of the Atlantic. On the one hand are those who believe that BC should hand over the interviews without question, such as The Boston Globe, who wrote an editorial titled “BC should abide by subpoena, provide info in murder case,” on Aug 1, 2011. On the other are those, like Moloney, McIntyre, and McArthur, who believe the tapes should never be given to authorities, in order to protect oral history and the lives of those who participated in the project.

Moloney found fault with BC’s decisions early after the subpoenas had been served. In an interview, he stated that he was not informed of the subpoenas until an unnamed source at BC called him to notify him of their existence. After the second set of subpoenas was served, Moloney said that he and McIntyre were not informed of their existence until after BC had made their legal decisions, despite their proximity to the project. When he was eventually notified, Moloney stated that he was instructed by a lawyer employed by BC not to go to the media with the information. Hoping to fight the subpoenas, Moloney went straight to the press. The second set of subpoenas requested only those materials directly relating to the murder of McConville.

Dunn stated that at that point in the process, both Moloney and McIntyre were approached by the court in order to identify the tapes most relevant to the investigation, but declined the opportunity. This, Dunn claimed, resulted in the subpoena of the seven tapes mentioned previously.

“Moloney and McIntyre were given an opportunity to review the tapes, and they refused to participate,” Dunn said. “Blame for the second set of subpoenas requiring the release of seven tapes lies with Moloney and McIntyre for not cooperating with the court. They could’ve stopped this by cooperating, but they chose not to.”

Moloney, on the other hand, felt that the University was not making enough of an effort to fight the subpoenas.

“I very seriously doubt—if I had not picked up the phone and called The New York Times, if I had not received that phone call from a contact within the college telling me about the subpoenas—I wonder, and I think it’s a very valid question to ask, given the light of everything that happened subsequently, not least the failure of BC to take up an implicit invitation by the judge on Dec. 16 to appeal, turning that down—all of those things suggest to me a very relevant question: would Boston College have fought those subpoenas if I hadn’t found out about them?” Moloney asked.

Similarly, Moloney questioned from the start BC’s motivations for what he perceived as attempts at keeping the subpoena quiet. “Why does Boston College want to keep this quiet and silent? Needless to say, I went straight to the media with that, because you have to. The only way you can fight these things is with publicity. The idea that you’re going to fight subpoenas like this by keeping quiet about them is ludicrous, because the only people you’re assisting are the ones that want the interviews.”

Moloney and McIntyre have both been critical in the media, even going so far as to say that BC should destroy the tapes rather than hand them over to officials, according to Dunn.

“To us, destroying materials that are part of a criminal investigation is anathema, and as Americans, we believe in the judicial process,” Dunn said. “Mr. Moloney and Mr. McIntyre, who are Northern Irish, obviously have a different view of the court system. And while that may be a cultural misunderstanding, it in no way should justify their utter disregard for American law and the judicial process.”

Moloney emphasized the risk to his safety and McIntyre’s as a prime reason for why he should have been informed as early as possible in the subpoena process, and for why the tapes should never be handed over. McIntyre, as a former IRA member, said that he risks a death sentence by the organization as an informer if the tapes are to be released. Similarly, Moloney believes that if the tapes are to be released, he will be approached by the PSNI to validate the interviews.

“We’re the guys who are in danger here,” Moloney said. “Anthony McIntyre is in physical danger from the IRA as a result of all this stuff. If I agree to cooperate with the authorities about the evidential value of the interviews, I also become a target. If I don’t, if I refuse, I go to jail for contempt of court. So I can go to jail, or get shot, or Anthony McIntyre can get killed.”

Moloney said it is this potential danger that makes the contracts signed by Moloney, McIntyre, and the project participants all the more relevant. Moloney and McIntyre each signed contracts guaranteeing confidentiality “to the extent that American law allows.” The project participants, however, did not have the same language in their contracts.

“Why is it not clear in there?” Moloney said. “If Boston College was dealing in a straight way with the interviewees, they should have said to them at this point, and made it clear in the contracts with me and McIntyre, that confidentiality was limited by subpoena. And they didn’t do so. And I ask again, was this deliberate? And was it done in order to ensure that this archive happened?”

Supporters of releasing the tapes have cited the investigation of McConville’s murder as a reason for not withholding information about her disappearance.

Moloney responded by pointing out that BC should have been prepared to receive information about crimes by becoming involved in the project.

“Why did they get involved in this research project anyway?” Moloney asked. “What did they think the IRA did, run kindergarten? You think when you go out to interview people who’ve been involved in bombings and shootings and the campaign of violence for the best part of 30, 40 years, you’re not going to deal with murder?”

At the same time, he emphasized the presence of double standards, saying that heinous acts had been committed by both sides. As an example, Moloney spoke of Pat Finucane, a solicitor who was killed with the full knowledge and approval of the British police forces in 1989. When Tony Blair discovered the government’s knowledge of the murder, he ordered a full inquiry into the events. In October of 2011, however, Prime Minister David Cameron called off the investigation and issued a formal apology on behalf of the United Kingdom. Moloney cited Finucane’s killing as one of many that had been undertaken with the knowledge of British authorities.

“When you say, ‘Yes, Jean McConville’s family deserves the truth,’ well then so does Pat Finucane’s family, but there are no subpoenas being served on their behalf,” Moloney said.

U.S. Senator John Kerry, who sits on the Foreign Relations Committee, has weighed in on the Belfast Project issue in favor of finding ways to revoke the subpoenas.

“I fully recognize that the United Kingdom has invoked the provisions of our Mutual Legal Assistance Treaty and that this is clearly a factor which affects our flexibility dealing with such a request,” he wrote in a letter to Secretary of State Hillary Clinton. “Nonetheless, given the close relationship we have with the United Kingdom and the deep and enduring interest all of us share in seeing a lasting peace in Northern Ireland, I would urge you to work with the British authorities to reconsider the path they have chosen and revoke their request.”

Moloney and McIntyre have both expressed that they will continue fighting until the bitter end. Both also stated their hope that the University will choose to join the appeal against the court’s ruling.

“I would like to see Boston College join this appeal. It’s not too late,” Moloney said. “They haven’t thrown out their opportunity. I think it sent out the worst possible message to the rest of American academia that here at the very first hurdle, this eminent college, that had set up these archives and given assurances to all these people, jumped ship at the first opportunity.”

“Better late than never,” McIntyre said. “I think it would be a positive step out of the abyss that they have gotten themselves into. I would welcome any such move by BC. I feel it’s a position that they should’ve taken all along. I would have much more respect for them if they stayed in the fight and fought until the bitter end, rather than hiding behind a court order.”

McArthur, whose interviews have not yet been subpoenaed, pointed out another important step he believes BC should take.

“I think also that it is clear BC can no longer honor the guarantee to interviewees that ‘access to the tapes and transcripts shall be restricted until after my death,’” McArthur said in an e-mail. “In that case, I feel BC is morally obligated to return all material in their possession to the donors who offered material under terms which can no longer be met.”

According to Dunn, BC is still reviewing its legal options, and will decide whether or not to appeal Young’s ruling in the coming weeks.

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