The federal subpoena served on 5 May 2011 on the John J. Burns Library of Boston College established that events occurring as long ago as December 1972 have the capacity to destabilise variously the academic, legal and political affairs of the present. Assumptions that the First Amendment of the US Constitution would guard against this supposedly remote eventuality have been cruelly exposed. One legacy of this whole saga may be a body-blow to academic freedom, even if the worst-case scenario of the utilisation of confidential oral history as trial evidence does not materialise.
The imminent threat of court-directed ‘extradition’ from the US of private research materials pertaining to untried political offences in Ireland has concentrated the minds of all protagonists. Profound consequences will attend the production in a juryless Diplock court of historical notes acquired by Boston College under assurances of anonymity and lifetime security. The fact that the crisis was instigated by the crime operation branch of the PSNI has highlighted a major structural weakness of the Peace Process: the absence of a formal amnesty for offences not covered by statutes of limitations. This dimension has animated Irish-American solidarity groups and stimulated interventions from persons who have played central roles in the bedding down of the 1998 Good Friday Agreement. On 23 January 2012 Senator John F. Kerry, chairman of the US Senate Foreign Relations Committee, wrote to Secretary of State Hillary Clinton and Attorney General Eric Holder to register his concern about the impact the case ‘may have on the continued success of the Northern Ireland peace process’. The stakes have never been higher for oral history in Ireland and the United States.
It has been speculated that the ultimate aim of the PSNI is to name Sinn Féin president and Louth TD Gerry Adams in connection with incidents of the early 1970s, when the conflict in the North was at its height. Journalist Chris Bray has noted that the subpoena broke an investigative silence of decades in relation to a particularly distressing killing within a month of Adams exchanging a safe seat in Westminster for another in the Dáil. While the timing may be entirely coincidental (and it is a matter of record that the historical enquiries team [HET] of the PSNI was tasked with pursuing the particular case under review since 2006), the alignment of events and personalities united by the common thread of the Boston Project is nonetheless striking. Ed Moloney, among the most persistent critics of Adams and author of the contentious A secret history of the IRA, acted as director of the Boston Project. Moloney has consistently argued that the official narrative of the Troubles requires questioning and elaboration. He is currently engaged in an open dispute with former collaborators in Boston College over their handling of the affair.
Developments in Massachusetts must have been assessed by Sinn Féin strategists when deliberating on the merits of running a leading party member in the 2011 presidential election. In the event, Martin McGuinness was selected as candidate and performed credibly, notwithstanding the widespread incredulity that greeted his claim to have parted company with the IRA in 1974. Informed commentators divined that statements of this kind, which have dogged Adams for years, stem from the anomaly that many of those who have risked their lives in the pursuit of an equitable, interim settlement of the Troubles remain under threat of imprisonment for past membership of proscribed organisations. The Boston tapes, however, apparently concern far more serious charges. While the terms of the Good Friday Agreement permit persons convicted of pre-1998 ‘Long War’ offences to serve just two years of potential life sentences, the political damage arising from such a procedure would be incalculable.
Ex-IRA prisoner and writer Dr Anthony McIntyre, no stranger to acrimonious exchanges owing to his reservations regarding developments in the Republican movement, was the main interviewer of the anonymous republican cohort from 2001 to 2006. It is believed that 26 interviewees fell into this category, predominantly former Provisional IRA members but also veterans of the Irish National Liberation Army and Sinn Féin. In addition, Queen’s University, Belfast, graduate Wilson McArthur interviewed former UVF/Red Hand Commando activists and possibly adherents of other Loyalist organisations (whose recollections have not as yet been subject to subpoena). Two have withdrawn their contributions. Strangely, it does not appear that British military personnel or officials were interviewed, and the archive was clearly not designed to provide future researchers with an overview of the full remit of the Troubles. In August 2009 Moloney credited former political activist and Queen’s historian Lord Paul Bew with providing ‘crucial’ assistance ‘at the very outset of the project’ (Moloney, Voices from the grave, p. 9). This referenced Bew’s presence in Boston College as a visiting scholar in the late 1990s, when the oral history archive was proposed. He may yet have occasion to address the situation in the House of Lords.
The 2010 publication of Voices from the grave provided the first public glimpse of what the Boston Project entailed. Moloney’s edited version of interviews conducted with the once-prominent IRA leader Brendan Hughes and UVF commander David Ervine contained fascinating insights. The reluctance of republicans to speak on the record is self-evident, and the academic value of the collection is consequently considerable. Hughes, operations officer of the IRA’s Belfast Brigade staff in the 1970s, led the 1980 H-Block hunger strike which presaged the fatal sequel headed by Bobby Sands in 1981. The account furnished in increments by the ailing Hughes to McIntyre was highly explicit, if censored in published form. The Belfast man died prematurely in February 2008 and may have assumed that his recollections would surface at a much later date, when those he had named would be effectively immunised. His demise freed the custodians of his sessions to release what they regarded as suitable segments, and the ensuing publicity surrounding the more sensational claims helped make Voices a best seller.
Information regarded as purely historical in the US attained legal significance in Ireland owing to its alleged relevance to unsolved killings under investigation by the PSNI historical enquiries team since 2006. It was in this context that assertions made by ex-IRA prisoner Dolours Price in February 2010 in corroboration of Hughes were deemed important, as was her disclosure of having been interviewed for the Boston collection. This connected the investigations of the ‘Disappeared Commission’ into the circumstances surrounding the IRA abduction and killing of an initial group of nine persons with the verbal deposition furnished by Price to the Burns Library. When RTÉ screened its acclaimed Voices from the grave documentary on 26 October 2010, the distressing story of Jean McConville was very much in the public eye. Former police ombudsman Baroness Nuala O’Loan, whose office had pressed for the re-examination of particular ‘cold’ cases, endorsed the PSNI endeavour to repatriate information on McConville’s grim fate in December 1972. The Belfast woman was acknowledged as an IRA victim in March 1999 and her family were by no means reconciled by the eventual recovery of her remains on 26 August 2003 near Carlingford Lough, Co. Louth. They rejected claims made by Hughes in his Voices contribution and by other republicans that McConville was shot for being a serial informer.
The legal wrangling in Boston since March 2011 has been convoluted, partly because of the novelty attending the demand for the Boston Project to surrender its interviews with Brendan Hughes and Dolours Price to the PSNI. While the UK is technically not party to the case, the June 2003 Mutual Legal Assistance Treaty (MLAT) with the US provided grounds for the Massachusetts attorney general to defend the subpoenas on behalf of the British. UK authorities disclosed certain documentation for the in camera assessment of the American court. An order of 31 March 2011 by the district court of Massachusetts led to the serving of a subpoena dated 2 May 2011 on Boston College three days later. On 26 May 2011 the college duly transferred its Brendan Hughes files on the grounds that he was deceased. That of Dolours Price was subsequently released to the court but not immediately forwarded to the PSNI.
A second subpoena in August 2011 sought transference of any research materials containing references to McConville, a request complicated by the contention that Boston College was unaware of the nature of the sealed interviews in its possession. Representatives of the Burns Library have implied that McIntyre’s refusal to pinpoint the relevant passages obliged it to ‘provide all the IRA interviews to the court for its review’ (Irish Times, 19 January 2012). Moloney and McIntyre intervened on 1 September 2011 in a bid to pre-empt a decision upholding transfers to the PSNI from the district court. They argued that releases to the PSNI would endanger the well-being of their interviewees and, in the case of McIntyre, compromise the safety of his family in Belfast.
On 16 December 2011 Federal Judge William G. Young rejected an application from Boston College to quash the subpoenas and ordered the preparation of relevant materials for duplication and surrender to the UK. There was some surprise when Boston College did not initially appeal the ruling and, in a further twist, the Federal Court of Appeals imposed a ‘stay’ on the decision on 30 December. Professor Thomas Hachey of the college’s Center for Irish Programmes and Burns Librarian Robert O’Neill remained hopeful that the court would ultimately rule in their favour and that the case would effectively strengthen legal protection of sensitive archives. Momentum, however, lies with those seeking cooperation with the PSNI and on 20 January 2012 Judge Young directed that transcripts and tapes of seven republican subjects, in addition to Hughes and Price, should be transferred. This will await the deliberation of the First US Circuit Court of Appeals in March 2012 and possibly other levels of judicial appeal and decision.
The wider picture has aroused concern amongst a variety of pro-Irish organisations in the US. The Irish American Unity Conference (IAUC) has cooperated with the Ancient Order of Hibernians and the Brehon Law Society in bids to deny the subpoenas. The IAUC contended that the case is ‘another stark example of British disregard for Irish sovereignty in general and the peace process in general’ (IAUC National Newsletter, January 2012). Secretary of State Hillary Clinton has been lobbied, and IAUC national president Thomas J. Burke was among those who raised the matter with Northern Ireland Secretary Owen Patterson on 28 October 2011 in the British consulate in New York. Presumably the legal deliberations in Boston will decide whether there is a basis for resisting MLAT-facilitated subpoenas. If upheld, the full political ramifications of the situation will come into play.
In the interim, scholars and archivists in the US are obliged to consider the implications of the case for researching and storing historical data. It can no longer be assumed that assurances of anonymity and restricted access to information made to interviewees in good faith can withstand either national or international legislation. Whereas Irish and British media professionals within the powerful National Union of Journalists (NUJ) have a degree of practical and actual protection vis-à-vis the non-disclosure of sources, no such protocols immunise the academic world. This can only have a detrimental impact on future oral history endeavours. The NUJ earned their current privileges by the willingness of its membership to defy what they regarded as unreasonable court directions impinging on the rights of their profession and militating against the interests of the general public. In 1972 RTÉ journalist Kevin O’Kelly was jailed for refusing to divulge information regarding his interview with then wanted Provisional IRA chief-of-staff Seán Mac Stiofáin.
As yet, the private collection of the Burns Library is the only repository in contention, but it is not surprising that the custodians of Columbia University’s Peace Process oral history project in New York have expressed unease. In theory, closed depositions made by ex-President Bill Clinton and Senator George Mitchell could be subpoenaed. British state archives appear far more secure, however, with the Official Secrets Act and other barriers in place to obscure their content and configuration, as well as preventing undesired dissemination. Widely hailed freedom of information legislation, furthermore, has had the unintended consequence of driving sensitive documentation deeper into the administrative recesses than ever before. This, at least, has highlighted the disappointing reality that very little official information of significant historical value has come to light from state archives in relation to the Troubles.
The Boston imbroglio reveals the sharp contrast between the blanket secrecy hitherto enjoyed by establishments and their purposeful pursuit of similarly themed information located in the private domain. One interpretation is that elements in authority in Britain and Ireland do not regard the Peace Process as the definitive end of the conflict and are manoeuvring in comparatively irenic times to seek strategic advantage. Settling old scores and threatening republican ‘dissident’ groupings would presumably inform such agendas if they are, in fact, in play. Certainly, in the absence of some form of general amnesty or alternate mechanism permitting a viable ‘truth and reconciliation’ exercise, documenting the past appears decidedly hazardous for all concerned.
It will be interesting to see whether precedents set in Boston strengthen the hand of American-based scholars and political activists seeking to convince Attorney General Holder et al. to deploy MLAT in the other direction in order to leverage files from Britain’s Ministry of Defence and the Northern Ireland Office. A degree of uncertainty has suddenly crept into such matters. When attending the British–Irish summit in Dublin Castle in January 2012, Stormont Deputy First Minister Martin McGuinness voiced surprise at the revelation that the Burns Library in Boston possesses secret records of the International Independent Commission on Decommissioning (IICD). The IICD deposit apparently includes official estimates of weaponry ‘put beyond use’ and correspondence pertaining to the requisite highly classified arrangements. Fianna Fáil leader Micheál Martin stated that the overseas location of this archive under the supposed shield of a 30-year embargo was ‘potentially damaging to peace and reconciliation’. No doubt the MLAT developments of the same week crossed his mind. It would be supremely ironic if the history of the Troubles fosters a new academic underground of practitioners. HI
Ruan O’Donnell is a Senior Lecturer in the Department of History, University of Limerick. His Special Category: the IRA in English prisons, 1968–1978 has just been published by Irish Academic Press.