[caption id="attachment_67272" align="aligncenter" width="600" caption="The Burns Library at Boston College."]
Great Britain is using two subpoenas to compel Boston College (BC) to deliver oral history interviews of participants in the conflict in Northern Ireland.
The interviews are known as the Belfast Project. In March, 2011, the subpoenas were issued pursuant to a Mutual Legal Assistance Treaty (MLAT) between the United States and Britain (UK).
Technically, The U.S. Attorney for Massachusetts issued the subpoenas at the request of Great Britain. BC has moved to quash the subpoenas.
The case is in the Federal District Court for Massachusetts. Great Britain is not, technically, a party to the case. Rather, the U.S. Attorney is defending the subpoena on Britain's behalf.
There have been a couple of rounds of briefs by the parties. On September 1, the Belfast Project's two principal interviewers filed a motion to intervene in the case. The case is before Judge Tauro and is numbered 11-MC91078 (JLT) Docket # 18.
BC is arguing that the subpoenas should be quashed because they threaten oral history research and because disclosure could put people's lives at risk.
The U.S. Attorney argues that the MLAT automatically entitles Britain to subpoena the interviews with no discretion by the court to consider the kind of damage that concerns BC.
The interveners argue that Britain made assurances to the Senate during Extradition Treaty hearings that offenses prior to the 1998 Good Friday Agreement (GFA) offenses were off the table, and that those assurances preclude Britain from using the MLAT for a politically motivated investigation or prosecution. The case is pending.
The Belfast Project is an academic effort to create sources for historians and others to help understand the conflict in Northern Ireland.
Between 2000 and 2006, the Belfast Project recorded oral histories of Irish Republican and Loyalist paramilitaries. The interviews are archived at Burns Library at Boston College with the understanding that none would be released until the death of the interviewees.
The contents of the interviews are not even known to Boston College officials. The Project's two principal interviewers were Ed Moloney, a journalist and author, and Anthony McIntyre, a former IRA member and now a PhD.
The subpoenas revolve around the 1972 killing of Jean McConville in Belfast. In 1999, after the Good Friday Agreement, the IRA admitted that it has killed Mrs. McConville for alleged informing. In 2006, the Northern Ireland Police Ombudsman issued a report finding that that the police and other government authorities never conducted a significant investigation of Mrs. McConville's death.
The first subpoena sought interviews of two former IRA members, Brendan Hughes and Delours Price. They had given newspaper interviews stating that they had been involved in Mrs. McConville's killing and that Gerry Adams had somehow been involved in ordering it.
Mr. Hughes has since died.
Boston College has already delivered the Hughes interviews to the British government voluntarily, because his death satisfied the condition of confidentiality until death under which the interviews were given. The second subpoena seeks all interviews, of anyone, that mention Mrs. McConville.
Great Britain's motivation for the subpoenas is apparently highly political, rather than a matter of ordinary law enforcement. Over 3,000 people were killed during the conflict in Northern Ireland. The perpetrators included republican and loyalist paramilitaries, as well as British security forces. There are hundreds of unsolved cases where the individual perpetrator was never arrested or prosecuted. The British Government has never before used the MLAT for subpoenas about the conflict in Northern Ireland.
The Belfast Project interviews include dozens of interviews from both republican and loyalist paramilitaries which may well discuss a large number of killings.
So, the question looms. Why this one 39 year old case? And, why now?
Mrs. McConville's death was terrible and tragic. But so were hundreds of others. Why is the UK not seeking evidence regarding Pat Finucane or Rosemary Nelson or some of the hundreds of others killed by loyalists?
The answer has to be a British political decision to pursue the McConville case, and to not pursue others. Only one fact sets the McConville case apart from the hundreds of other tragic unsolved killings. There is some indication that interviews in the McConville case might somehow implicate Gerry Adams - a highly political figure.
The exact nature of Britain's political reason for targeting Adams now is not publicly known. The British Government has kept its decision making process on this matter secret from the outside world.
It may well be that even the United States Government does not know Britain's motivation. Legal experts and journalist examining this case have put forward two theories as to why the British Government is targeting Gerry Adams now. The theories are not mutually exclusive.
One theory is that a rogue element within the Police Service of Northern Ireland, with long standing hostility towards Adams, started the subpoena process and higher-ups in the British Government feared public embarrassment if they stopped the subpoena.
A second possible British motivation is that higher echelons in the British Government want to damage Adams and Sinn Féin now because of their rising political power in the government of the Republic of Ireland.
Ireland has suffered a devastating financial and economic collapse. Sinn Féin's party platform is that the Irish Government and people should not bail out the financial institutions and bondholders left holding billions in bad debt.
A very high portion of those financial institutions and bondholders are British.
In the February 25, 2011, Irish Dáil elections, Sinn Féin had remarkable success. Gerry Adams led the party's ballot. Sinn Féin is now the largest party in the Dáil opposed to the Irish Government's bailout of bondholders. The British Government, acting through the U.S. Attorney for Massachusetts, started the court process for the Boston College subpoena in March, 2011.
The United States has a long standing policy against helping other countries, particularly Britain, with politically motivated law enforcement and prosecutions.
That conflict has usually played out in extradition cases, where "political offenses" were traditionally exempted from extradition to Britain, as well as to virtually all other countries.
During the 1970s and 80s, American federal judges regularly refused to extradite IRA members to Great Britain because their crimes were committed as part of a political struggle. Joe Doherty might be the most famous of these cases.
Unhappy with this outcome, Britain, in 1985, prevailed upon the U.S State Department to accept a Supplementary Extradition Treaty which took away the political offense exemption for many types of offenses. The U.S. Senate eventually approved the treaty, but only after inserting a defense to extradition if a court finds that the person is sought, or would face trial or punishment, because of his race, religion, nationality or political opinions.
The end result might be characterized as "political offense exception light."
Yet, Great Britain was still dissatisfied with the extradition treaty. In 2003, Britain persuaded the State Department to further weaken protections from politically motivated prosecutions. For several years, the U.S. Senate refused to accept the changes because of the history of politically motivated prosecutions during the conflict in Northern Ireland, especially for offenses prior to the 1998 Good Friday Agreement.
The Senate Foreign Relations Committee held a series of hearings on the subject. The Ancient Order of Hibernians, the Brehon Law Society, and the Irish American Unity Conference led the opposition to the new treaty.
On at least eight occasions during the hearings, the British Government and the U.S. Justice Department assured the Senate that pre-GFA offenses arising from the conflict in Northern Ireland would be off the table for extradition under the new treaty.
The Senate eventually ratified the 2003 Extradition Treaty in 2006. The Senate partially accepted Britain's assurances about pre-GFA offenses being off the table, but felt compelled to incorporate those assurances into the treaty ratification, itself.
The whole story is laid out in Congressional Research Service Report for Congress, "Extradition Between the United States and Great Britain: The 2003 Treaty," 10/10/06 http://www.fas.org /sgp/crs/misc/RL32096.pdf.
The Mutual Legal Assistance Treaty (MLAT) and extradition treaty are closely connected. They were negotiated, signed, considered by the Senate, and ratified contemporaneously.
The treaties were sold to the Senate as being necessary for effective cross border law enforcement in a post-9/11 world, particularly for terrorism and money laundering.
It appears that the Boston College subpoenas are the first time that Britain has sought U.S. subpoenas for offenses stemming from the conflict in Northern Ireland, ostensibly ended with the GFA 13 years ago.
When the MLAT was signed and approved by the U.S. Senate, there was no ostensible reason to believe that the MLAT would be used for subpoenas for pre-GFA offenses, especially in light of Britain's assurances that pre-GFA offenses were off the table.
If the courts allow Britain to use the MLAT in this obviously politically motivated case, the MLAT should be revised similar to the extradition treaty to ensure that it is not used for pre-GFA cases.
The above argument was prepared by Albany, NY-based attorney Thomas Fox in conjunction with Jim Cullen and Ned McGinley, special advisors to the national presidents of the Irish American Unity Conference, Brehon Law Society, and the Ancient Order of Hibernians respectively.
