Prosecuting the Past: Political Campaigns Dressed Up as Police Investigations

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.


  1. A very interesting article. It sort of begs the question did Adams receive any of those letters from the British government and if so, why considering he has always denied being in the IRA.

    By his constant denial he may have left himself open to future persecutions and in affect he may have hung himself by his own petard.

  2. The caveat in and around the letters is that the recipients are immune except in the case where new and further evidence comes to light, its seems the British think those tapes contained such ‘further evidence ‘of cases, specifically the McConville one, and as such Adams would be aware that any letter he might have wouldn’t prevent the case going to trial, this may also explain his IRA membership stance too.

  3. One can guarantee that those who received assurances from prosecution and more specifically Royal pardons are those closest to the Sinn £ein leadership and the people that would have had to be seen by the Brits either privately or publicly to be toeing the peace line and helping to decimate the PIRA.
    I have a theory as to why the Sinn £ein leadership took the path they took and accepted partition and that was because the Brits had so much dirt on McGuinness and that the PIRA leadership was fully compromised without the volunteers on the ground being aware of it and it led to the Brits giving
    McGuinness an ultimatum sometime in the late 1980s or early 1990s to begin dismantling the PIRA or he’s going for his tea for a very long time. If we look at the role of agents such as Freddie Scappaticci who hated McGuinness and would‘ve told the Brits everything he knew about him. Then there was Joe Fenton who supplied empty houses that were bugged and used for Army Council meetings, Denis Donaldson who I believe was the one responsible for the giant 6ft bug placed in the rafters of the Belfast Sinn £ein centre. The Derry Agent Frank Hegarty and McGuinnesses supposed role in his death, not to mention the unknown touts in the RA plus all the other methods of surveillance employed be the Brits I would say the Brits had McGuinness well and truly firmly by the balls and he kept it all to himself. Remember, McGuinness was the official PIRA ‘negotiator’ which means the Brits could’ve dropped whatever they had on him at any time during private meetings and no one would’ve been any the wiser. I remember vividly during the 1980s McGuinness was boasting ‘Not a bullet not an ounce!’ at the marches I attended and he was always a staunch advocate of the militant strategy and then within a short period, possibly within a year his tone had suddenly changed, why? Was this when the Brits dropped it on him? When I first saw McGuinness coming down the marble stairs in Stormont in tandem with Paisley my first thoughts were that there was something rotten going on here and that it had been for a long time. And I personally still believe that there is no way under the sun that Paisley would’ve entertained McGuinness unless he had assurances from the Brits that McGuinness was fully turned. Remember the Queen’s visit?, the two handshakes, one in private with a possible wink wink say nothing about the pardon.

    In regards to the above article I have a theory as to why the British/Americans are hounding Adams through the Boston archives over Jean McConville and it is because I believe Adams never received a Royal pardon due to the fact that he is adamant he was never in the PIRA and it may have been the case that the British had pre-terms and conditions in some cases (Sinn £ein‘s) that an admission of some sort was needed before a pardon was granted. The Brits no longer need Adams whenever they have the rest of them in their back pocket and coupled with the fact he’s no longer in Stormont I believe the Brits feel they can now look to be seen to be doing something in the eyes of the unionists/sdlp for the disappeared and the time is now ripe for Adams to get shafted big time.

    Reading between the lines coupled with my own theories I’m now of the firm belief that the British own Sinn £ein and because of this I make no distinction between either.

  4. DaithD

    Another question might be that in the event that new evidence emerges then is only that evidence usable in court? In otherwords is all or any existing evidence at the time of issue of any letter put beyond use in court?

    Equally, because someone has been assured that they would not be pursued, and possibly imprisoned, that does not rule out that a victim or their relatives can still have a full and proper investigation to learn the truth.

  5. If there is evidence in Boston against Adams or anyone in Sinn Fein - ( which I doubt )-it will still take a person to go to court to point the finger-( which I doubt will happen-saying something on TV or a book or tape is not damming evidence)-

    At the same time there will be some value if those Republicans who admitted all to Boston College get out of jail cards whilst those loyalists who admitted all have found out that they sold themselves out and will have to serve two years -

  6. Good questions Tiarna. I suspect these are defacto amnestys, where the cases are effectively closed, but the evidence remains on file.There are proceedures already for the police to do this for cases that are unsolved. I think in the event new evidence comes to light, the cases become active again, and it will be considered with that already existing. With regards to the families pursuit, I dont know what proper investigation can take place when people have been given assurances of this type, or if those who would know have these letters. It will be interesting to watch this unfold, when things dont make obvious sense , its indicative of something very underhand trying to remain concealed.

  7. Max I'm of the opinion, more so in light of the Thatcher Documents, that Adams, McGuinness and co. were headed down the route of 'bringing an end to the current terrorist campaign' [Atkins' words]since the time of the Hunger Strikes. And given what is contained in those documents the Brits were aware of that fact back then.

    In regards to the Brits hounding Adams in the hope of bringing charges against him...

    If this actually happened what do you think the reaction of PSF would be given their love of dear leader?

    Could the rest of the leadership settle for expressing outrage without having to pull out of Stormont? And could they in fact hope to hold the party together if they didn't pull out?

    I think we all know they are shackled to Stormont so pulling out can be ruled out.

  8. Max Headroom, im loathe to use the word tout as people had died over its usage, but lets say the British Minister McGuinness deserves some flack after labelling the current freedom fighters traitors. After reading the Moloney book, and all Martins ‘gaffes’ , like scuppering the ‘Tet Offensive’ by revealing the Libyan arms shipments and allowing the British to introduce counter measures which rendered the SAM’s useless, and his strong hints there was high level/ Army council mole, and the Endgame in Ireland series where it says (not sure if it was elsewhere) that he was tipped off by Mi5 about Micheal Stone coming to assassinate him in Derry which he then evaded (leading to the Miltown attempt), I’m inclined to agree with you. But it’s a very very uncomfortable thought, because the implications of being right or wrong are awful.

  9. I wonder what Michael Henry McIvor makes of this?

    War of words continues over ‘Shinners list’

    …The latest twist in the debate between both parties came after the Sentinel spoke to relatives of the Bloody victims who contended that back in 2005 that some of the families met with Sinn Fein representatives and that their support was sought by the party for OTR legislation and in return they would have to drop their desire to see members of the Parachute Regiment prosecuted for the killings on January 30, 1972. [...]

    ….However, Kate Nash, who’s brother William was shot dead on Bloody Sunday and her father Alex wounded whilst trying to go to his son’s aid described the situation over OTRs as a “disgrace.”

    She said she recalled there was an offer made to the Bloody Sunday families to support OTRs in return for dropping possible prosecutions against members of the Parachute Regiment, but the notion was rejected wholly by the families. [...]

    …“On 9 November (2005), the day after the Secretary of State announced publicly that the on the run legislation would apply to state killers, Conor Murphy flew over to Westminster to welcome it and brief on it and issued a supportive press release.

    “On November 10, Martin McGuinness was interviewed on Hearts and Minds. He called our (the SDLPs) objections about state killers “naive” and said he did “not envisage that any of the people who were involved in the murders of nationalists…is ever going to be brought before a court in this day and age.” Compare that to what he says now: “We support the families of victims in their pursuit of justice and truth.”

    The SDLP document continued by stating that during the Hearts and Minds interview Mr McGuinness “admitted that state killers would be able to get the benefit of the legislation but said that the people who would ‘gain most advantage from this are those nationalists and republicans who are on the run for over 30 years’.[...]

    The full article…

  10. Tebbit hints at Army council blackmail too :

    As we all now know, our security service had informers in the highest councils of IRA/Sinn Fein. Inevitably that meant that even with the knowledge of a planned bombing the security services could not always act to prevent it without giving away the identity of their informers.
    What they could do, and I understand did do, was to methodically acquire the evidence with which one very senior IRA/Sinn Fein killer was to have been charged with eight killings.
    I suspect that it was that which precipitated the IRA/Sinn Fein plea for talks.

  11. Dixie

    I haven’t read into or explored the Thatcher archives but you are right in what you are saying that Sinn £ein under the direction of the All Mighty was advocating for a cessation in the early eighties and I do remember it well. What brought me to my theory above is the fact that Adams & McGuinness had been playing a double act were they acted the good cop bad cop scenario during this period. There’s no doubt in my mind that McGuinness was an extremely hard line PIRA commander during this period and I can remember almost word for word some of his speeches at the many funerals, marches and commemorations that I attended and I’m sure you’ve seen various clips of McGuinness on Youtube and his speech at the 1986 Ard Fheis and this is how I remember him.

    What was it that changed him from a hard liner to a peace seeker in the short space of time following the 1986 Ard Fheis? Something must have bit him in the ass, Remember, most of the big touts weren’t even ousted at that time.

    In an interview during his presidential campaign McGuinness said he was working to secure peace since the 1980s? In a recent interview in Warrington England he said he was scheduled to meet MI5 on the day of the Warrington bomb in 1993 but it was called off. It has to be remembered that during the bombing campaign going on in London and various other parts of England in the early 1990s McGuinness had no control over what attacks took place overseas as it was in the hands of the S.Armagh men. Being a Derry man you would remember Paddy Flood and one of the most dedicated bomb makers the PIRA had at that time, Flood got it in the head by Scap and the nutting squad in 1991 for being suspected as being a tout. For seven weeks Scap held him before he made a confession and lets face it seven hours with Scap would’ve been enough to make anyone admit to anything. Being the high profile Derry commander that McGuinness was at this time he would’ve had the final word on Paddy Floods life. Was McGuinness compromised via Scap with bugging equipment in passing his sentence of death? Was he compromised earlier than this in a different sting? When or where I don’t know but I’m certain the Brits finally got him by the balls at some point.

    In regards to Adams, I think the Brits are possibly only gathering evidence whether they use it or not down the road is another story but they seem to want him in a position of vulnerability.

    In an interview with McGuinnees over the John Downey revelations outside Stotmont McGuinness said ’I would never resign from Stormont’., in an interview televised last night in a N.Ireland documentary he was asked ‘Would you have preferred being a mechanic?’ McGuinness replied with a coat hanger smile on his face ‘Look where I am now, in Stormont’. If Adams gets shafted I don’t believe it will make the Shinners bring down Stormont I think the unionist are the only ones capable of that.

    Btw, I have a picture here of your wee bro Christy and me and a few other lads in me mas house taken around 1983, I must get it to him someday.

  12. Dixie-

    The family's had to be told what the Brits said and this was rejected and fair play to them-no family member would come out nine years after the event to make up stories-would they?-

    Kate Nash has said that the decision to give the OTRs free cards is a disgrace-whilst the para's still have to face the courts-wonder why that is a disgrace for her -

    Loyalists were State killers as well- RHD Plum understood some of them might get cards but it never worked out for them-their negotiators made a hams of it or else ones lost interest in them once Ervine died-

    DaithiD taking the word of Tebbit next despite the RA sending the Tory for a spin one night with his Beloved by his side-did his brave MI-6 allow his wife to become mincemeat-

  13. DaithiD

    The truth is not for us to know but for us to find out.

  14. I knew McIvor would come back with a load of crap...I just had to be cruel and remind myself how bad the shinners are.

    Max if you know me give me a pm on facebook and I'll show you a 1976 newspaper cutting from the only time McGuinness got arrested up here in the North...

    Before releasing McGuinness on a charge of IRA membership the Crown Prosecutor said...'I've been INSTRUCTED not to proceed with the charge...'

    Who instructed the Crown prosecutor?

    And if they wanted evidence they need only have asked the BBC which had two famous clips of him speaking as an IRA leader in the Bogside in 1972.

    One was as he walked down Stanleys Walk.

    They just didn't seem to want Marty inside. Even Garret Fitzgerald wondered why when he asked Jim Prior in 1984 why they didn't use Raymond Gilmour to put Marty inside.

    Prior said because they hadn't enough evidence.

    LOL. Come on Jim you mean Raymond told yous nothing about Marty?

    Still LOLing...

  15. MichaelHenry, As you tactfully allude to, his wife was permanently disabled after the Brighton bomb, but this doesn’t mean he is predisposed to lie about information from his security force contacts and I listed some circumstantial support in addition to Tebbits remarks. It is clear that the Adams/McGuinness axis in the Republican Movement was highly acceptable to the British side for some reason.

  16. Dixie

    I don’t have a Facebook account.

    My own guessing is I think the Brits may have been giving McGuiness a safe passage through the 1970s because of his part in the PIRA delegation that went to London in 1972, maybe they thought if they took him off the streets they would have one less PIRA to talk to who was willing to negotiate with them. By the 1980s McGuinness’s hard line stance ( if genuine) would’ve been clear to them and I think they may have decided they’ed had enough of him and decided to build a dossier on him that would stand up in court and then presented it to him essentially nailing him, all speculation on my part but he is definitely someone surrounded by smoke and mirrors.
    I remember when Paddy Flood was whacked in 1991 and there was a friend of mine working for Sinn £ein at the time who left the party soon after Paddy’s death and he said to me at the time, ‘If Paddy Flood was a tout then Martin McGuinness is a tout so I’m out of here’.

    Btw, I met Christy this morning at the funeral of a friend of ours who died of cancer and I’ve given him a copy of the picture I mentioned earlier.