From the outset of the affair over the Boston College archives one aspect of the business has puzzled me and that was the apparent failure or refusal of the Obama Department of Justice (DoJ) to realise that the PSNI subpoeanas had the potential to cause big problems for one of the US’ few positive foreign policy successes in recent years (as opposed to negative successes like winning a war in Iraq at the cost of alienating and angering half the world).
It is, I would submit, undeniable that the peace process in Ireland and the Good Friday Agreement that it produced were in large measure the result of direct US involvement in Northern Ireland, firstly by the Clinton White House which broke the ice by giving Gerry Adams a visa to visit New York and then by the Bush administration, whose ambassador to the process, Mitchel Reiss arguably forced Adams and the Provos to complete IRA decommissioning, thus paving the way for the power-sharing, DUP-Sinn Fein government that currently sits at Stormont. Without these efforts it is very questionable that the process could have succeeded.
So why was the Obama DoJ, the Attorney-General, Eric Holder and the US Attorney’s office in Massachusetts so uncritically bent on going down a road that a few moments of due diligence would have revealed was littered with political tank traps that could quite readily destroy or seriously harm a project that American diplomats and politician were justifiably proud of, a project that set a positive example elsewhere in the troubled world that America polices?
After all we have all known since at least 2002 that any serious probe of the disappearance of Jean McConville would lead back to Gerry Adams, the principal architect and instigator of the IRA’s journey out of war but also the man, according to Brendan Hughes, who gave the order to disappear the alleged British Army spy. A threat to Adams, the Kim Il Sung of the Provos, is by extension a threat to the process. And to those who would say that the British would never countenance such a move I ask: well then why have they persisted with the subpoenas?
And it has also been evident since 2010 that if the British finally do shrink from prosecuting Adams, which is of course very possible, then there are others in the wings all too ready to take on the task. One of those is ex-Chief Superintendent Norman Baxter, the PSNI’s former liaison with those nice fellows in MI5, who publicly called for Adams’ prosecution for war crimes in 2010 and failing that endorsed Helen McKendry’s threat to sue Adams in a civil court for her mother’s murder and secret burial.
Indeed there are reasons to suspect Baxter’s hidden hand at work somewhere in this whole business and that a civil action was always the real if hidden goal of the action. He was the senior detective in the failed Omagh bomb trials which ended when the families, frustrated at the failure of criminal prosecutions, successfully took a civil case against the chief suspects. Is it beyond the bounds of credence that this subpoena effort had its genesis in his Omagh experience and the knowledge that if criminal proceedings fail or never materialise there is the alternative of a civil action against Adams, a person whom Baxter makes no secret of loathing?
Baxter knows that in a civil case the standard of proof is much less rigorous than for criminal trials: ‘on the balance of probabilities’ as opposed to ‘beyond all reasonable doubt’, a very telling advantage in a case that would be reliant almost entirely on peoples’ ancient recollections. And he knows that in all the important ways, for instance evidence would be presented in court by police witnesses, the proceedings would differ from a criminal prosecution only in the punishment available to the court. And if you don’t believe that, go ask O J Simpson.
Assuming the DoJ did its due diligence – and I am not assuming that it did – all this would have been quickly apparent to Eric Holder’s people but notwithstanding the risk that Obama’s White House could be remembered, at least in Ireland, for undoing all the good that Clinton and Bush did, it perservered. And not just perservered but pursued the case relentlessly even when opportunities to retire gracefully presented themselves (as with the death of Dolours Price).
One possible explanation of why the Obama administration has acted so evidently against US’ foreign policy interests by pursuing the BC tapes has emerged in the last fortnight or so with the chilling stories of the DoJ’s pursuit of the American news media for doing its job, i.e. unearthing government secrets and telling the public.
First there was the revelation that the DoJ had secretly acquired the work, home and cell phone records of some twenty journalists at the Associated Press in an effort to trace the leaker of a story that the government was planning to make public anyway, that it had, with the help of an agent, sabotaged a plot by Al Qaeda in Yemen to bomb a US-bound aircraft.
The government complained that the story endangered the life of its agent but it was going to do that itself by boasting about its achievement, something that automatically would have alerted Al Qaeda to the possible presence of a traitor in its ranks. (Ask the IRA: whenever a plot is interdicted in such a way the automatic assumption is that it was betrayed internally)
Then in the last day or so we have learned that in 2010 the same DoJ used a search warrant to acquire the email and phone records of a Fox News reporter, James Rosen in pursuit of a leaker who told him….now hold your breath….that North Korea might respond to new UN sanctions with more nuclear tests. Now even I, whose knowledge of North Korea is confined to writing stories about some dodgy bank notes that circulated in Ireland a while back by people not a mile away from the current leadership of the Irish Labour Party, could have written that story but nonetheless the brave folk in DoJ pursued Mr Rosen undaunted.
The worst aspect of the story however is that in order, it seems, to avoid a court challenge to the search warrant the DoJ accused Rosen of being a co-conspirator of the leaker and had aided and abetted the alleged breach of security. What Rosen did is what every journalist does, or, if they have any sense of self-worth, what they should do, which is to encourage holders of secrets to let them go.
The Obama DoJ’s action effectively threatens to criminalise the media in an unprecedented way. Obama had already, pre-Rosen, chalked up the worst record since Richard Nixon of pursuing journalists who had gotten hold of government secrets and leakers who provided them. But arguably Obama is worse. With Nixon you got what you expected and at least in his case he was fighting for his own survival. Obama, he of “Change We Can Believe In” and “Yes, We can”, was supposed to be different but now the hypocrisy (or is it cowardice, as in the act of a Black President seeking to assure the White establishment of his trustworthiness?) is breaking through, becoming visible even to his most zealous supporters.
The action against Rosen unquestionably pushes Obama ahead of Nixon in the creepy president stakes but it also sets the stage in a very convenient way for the prosecution of Wikileaks founder Julian Assange, if or when he is extradited from Sweden, via the UK, to the US. Assuming Bradley Manning is convicted of the spying charges he faces then Assange could, like Rosen, be accused of aiding and abetting Manning’s treachery. That compelling case is outlined here.
Which brings me back to the Boston College case. I am not arguing that it is on the same level as Wikileaks or the AP and Rosen cases but it does strike me that a DoJ in hot pursuit of Wikileaks, that is determined to bring Assange to his knees and, with threats and intimidation, to plug for evermore leaks from government – and in the process is ready to alienate what is normally a tame, well-behaved media and outrage both left and right - is more likely than not to take a very uncompromising line in any legal action it is involved in which undermines the ability of non-government agencies, like Boston College, to claim the right of confidentiality. Even more so if the foreign government behind the action is one the US is dependent on to send Assange to Sweden and thus to a federal court.
And if all that implies a willingness to do damage to something like the Irish peace process then so be it. As the man said “Yes, We Can”.