Prosecuting the Past: Political Campaigns Dressed Up as Police Investigations

By AM Thursday, March 6, 2014

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Today TPQ carries a piece by Chris Bray that originally featured on Ted Folkman's Letters Blogatory

Chris Bray comments on the implications of the collapse of the Downey trial for the Belfast Project. Chris acknowledges that we do not know precisely which IRA members received letters of assurance, and which received pardons. But assuming that the UK government’s request under the MLAT for evidence from the Belfast Project was aimed at people who, it now seems, cannot be prosecuted under UK law, then the UK government obviously has questions to answer. It’s not clear to me that the US Department of Justice has questions to answer, given the UK’s request and the United States’s obligations under the MLAT, but in any case, I think Chris is right on the money to raise questions about how the UK authorities acted here. I’ve always distinguished between the correct outcome of the case under the law and the question of the political wisdom of the UK (and, Chris would say, the US) authorities.
- Ted Folkman

Belfast Project: Implications of Downey Case in McConville Investigation
Chris Bray

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.