March 2011 was a busy month at the Department of Justice’s International Affairs Office (IAO) in Washington D.C. The British Home Office had just started the process of serving subpoenas on Boston College’s Belfast Project archive and its officials had begun liaising with the IAO’s staff. The subpoenas were routine matters covered by the Mutual Legal Assistance Treaty between the US and the UK and it is unlikely that at this point they were causing the office’s director, Mary Ellen Warlow any grounds for anxiety or concern.
The British had requested the subpoenas be kept sealed, i.e. secret, the US had agreed and if Boston College co-operated then the requested material – interviews with the late IRA Belfast leader Brendan Hughes and former leading IRA activist Dolours Price – could be on the desks of the Police Service of Northern Ireland (PSNI) within weeks and before anyone knew the subpoenas even existed.
The UK was one of the few enthusiastic allies of the US in its never-ending war against militant Islam and as a sign of his readiness to work with the Americans, British prime minister Tony Blair had agreed changes in the extradition treaty with America that enormously eased the process of transferring suspects from Britain to the US. The changes, which meant UK citizens could be extradited on the minimum of evidence, had outraged liberal opinion in Britain so the request from the Police Service of Northern Ireland (PSNI) offered a chance for an American quid pro quo, an opportunity to demonstrate gratitude for Blair and Britain’s generous co-operation.
Not only that but the alleged offence at the heart of the British request was regarded in some circles as a dreadful war crime. Jean McConville, a widowed mother-of-ten had been abducted, taken across the Irish border and killed by the Irish Republican Army at the outset of its lengthy war to eject Britain from Northern Ireland, her body buried in an unknown grave and her death kept a closely guarded secret, even from her family. She had been caught spying for the British Army in a public housing project in Belfast regarded as an IRA redoubt and the IRA had exacted punishment as only it could.
The ‘disappearing’ of some of its victims during the Troubles was a dark stain on the IRA’s reputation and when Mary Ellen Warlow reviewed the subpoena request it would have been surprising had she not concluded that no-one would take up cudgels for the IRA over the killing of Jean McConville. It would be an open and shut case: a terrorist group involved in a heinous crime.
It was very possibly because of these considerations that Mary Ellen Warlow failed to conduct the due diligence such requests normally warrant. Had she done so, she would have discovered that the PSNI had ample opportunity to collect the evidence they allegedly needed in Belfast and had no reason to seek it on the campus of Boston College, but had sat on their hands for over a year and done nothing.
She would also have discovered that the principal subject of the subpoenas, Dolours Price – who lives in Dublin, outside the jurisdiction of the PSNI – had actually been in the custody of a court in Northern Ireland in May 2010, could have been arrested by the PSNI and questioned about alleged admissions she had made in a newspaper interview regarding the disappearance of Jean McConville – but that the PSNI had let this opportunity pass by.
She would also have discovered that the PSNI had made no effort at all to establish the truth of a key justification for the subpoenas – a claim by a Belfast reporter that he had listened to Price’s interview with Boston College and that in it she had admitted to abducting McConville.
And she would also have discovered that the same police force seeking to bring former IRA members before the courts in Belfast is, along with its political masters in London, determinedly refusing to pursue policemen, soldiers and intelligence officials who committed, authorised, connived at and turned a blind eye to multiple murders in Ireland.
And finally, if she and her staffers had dug a little deeper, they would have discovered that the PSNI had another possible motive in seeking the subpoenas that helped to explain why, after some forty years of non-investigation of the McConville ‘disappearance’, police detectives in Belfast had suddenly become energised.
The man who was widely suspected of ordering McConville’s disappearance was none other than Gerry Adams, the IRA’s leading force during the Troubles and the chief architect of the peace process which, inter alia, had led to the effective disbandment of the PSNI’s predecessor, the overwhelmingly Unionist and Protestant-dominated Royal Ulster Constabulary.
There was reason to believe, in the form of public statements by former senior RUC detectives, that revenge against Adams for destroying the police force they loved and cherished – and which they saw as their bulwark against Irish unity – was a major factor in the legal move. In short, had Mary Ellen Warlow done her homework, she would have discovered that there were reasons for thinking the subpoenas were flawed and even politically-motivated – and that by pursuing the subpoenas the US might be party to an action that could have seriously negative consequences for the peace process in Northern Ireland, a process the US had helped bring to life. But she didn’t.
The routine nature of the subpoenas, the gravity of the alleged offence and the distinct possibility that Boston College would play ball may well have combined to encourage her to regard the PSNI request as an easy hit out of the park. But there was something else on the desk of Mary Ellen Warlow in March 2011, something that put the Boston College subpoenas in the ha’penny place, something that merited all her attention and skills. A letter had to be written to rescue six American officials from prosecution for their own war crimes, offences that were the hallmark of the Bush White House during the wars in Iraq and Afghanistan – the torture and killing of detainees held by the US military and CIA. Mary Ellen Warlow would have to write the letter. This was one war crime that mustn’t be pursued; after all there are war crimes and then there are war crimes. Mary Ellen had been called up to play her part.
The story of how she was assigned this sensitive and vital task has its origin in two very separate events. One was the decision by Bush’s successor, Barack Obama not to pursue those responsible for fashioning and implementing the torture policy that had set the Bush White House apart from any other administration. By 2011 the sheen had already worn off Obama’s presidency. His supporters had hoped for great things from Amewrica’s first African-American leader but in a wide range of policies, from reining in Wall Street to repudiating Bush’s odious foreign policy excesses they had tasted only bitter disappointment. In particular, Obama had reneged on his promise to close Guantanamo and to use due process to try alleged Al Qaeda members; instead the notorious Cuban prison camp stayed open and military tribunals were convened to try alleged terrorists. And to cap it all, Obama refused to pursue the architects of torture, the people seen as responsible for dragging America’s name for championing human rights around the globe through the mud.
There were six of them: former Attorney General Alberto Gonzales; Dick Cheney’s chief of staff and legal adviser, David Addington; the Pentagon’s former general counsel, William Haynes; the former undersecretary of defense, Douglas Feith; the former head of the Justice Department’s Office of Legal Counsel, Jay Bybee and one of his former senior officials, John Yoo.
Of the Bush Six, none was regarded as more responsible for the carnival of torture that followed 9/11 and the invasions of Afghanistan and Iraq than John Yoo, a law professor from California who had joined the Bush Department of Justice. Yoo was the author of the so-called Torture Memos, which were written in August 2002 and gave legal cover for the policy implemented at Guantanamo, in Afghanistan, in Iraq and at numberless CIA black sites dotted around the world.
Yoo’s memos were multi-faceted. He first justified the view that presidential power in relation to the so-called war on terrorism was effectively unlimited, at one point going so far as to tell DoJ officials that because of his duty to protect America, the “president’s war-making authority was so broad that he had the constitutional power to order a village to be ‘massacred’”.
Like the British had during their war against the IRA in Northern Ireland, Yoo also argued that prisoner-of-war status did not apply to enemy combatants captured during the conflict in Afghanistan and held at Guantanamo and also to those captured in Iraq. Therefore the Geneva Conventions governing the treatment of prisoners in wartime did not apply and so the US was free to torture them if it was thought necessary.
The consequence of his memos became disturbingly visible in the Spring of 2004 when photos of torture victims at Abu Ghraib prison near Baghdad, once Saddam Hussein’s torture centre, were aired on CBS television. Iraqi detainees, many of whom had been arrested on the most flimsy grounds, had been systematically abused, beaten, tortured and humiliated by US servicemen and CIA employees for months, the scandal coming to light only through the whistle-blowing of one prison guard who was disgusted by what had happened. When the photos, showing naked prisoners being abused by American personnel, became public there was an international outcry but from the Bush White House came a lying denial and a concerted effort to shift responsibility onto the shoulders of the grunts who had obeyed orders to torture and abuse.
Some of the prisoners had been killed by their interrogators. Writing in the New Yorker magazine, Seymour Hersh described one part of the testimony given by the whistle-blower, Specialist Joseph Darby:
“In November….an Iraqi prisoner under the control of what the Abu Ghraib guards called ‘O.G.A.’, or other government agencies – that is, the CIA and its paramilitary employees – was brought to the unit for questioning. ‘They stressed him out so bad that the man passed away. They put his body in a body bag and packed him in ice for approximately twenty-four hours in the shower….The next day the medics came and put his body on a stretcher, placed a fake IV in his arm and took him away.’ The dead Iraqi was never entered into the prison’s inmate-control system….‘and therefore never had a number’”.
You could even say that the unnamed Iraqi, like Jean McConville, had been disappeared – but by the CIA and the American military machine, not the IRA.
Slowly but surely, the denials of the Bush White House were stripped away and eventually John Yoo’s notorious Torture Memos became public. The pretence that the privates and corporals manning Abu Ghraib had been responsible for the abuse was exposed as a lie and international outrage at the Bush White House grew, and with it the demand that those responsible be brought to justice, if not in America then abroad.
And so began the second event which led to Mary Ellen’s letter-writing task.
The precedent for bringing national leaders to book for their crimes was set by the Spanish government’s pursuit of the Chilean dictator, Augusto Pinochet who had led the US-backed coup that overthrew the elected government of Salvador Allende in 1973, killing, disappearing and torturing thousands of leftist supporters in the process. The Spanish authorities filed an international arrest warrant for Pinochet, alleging he was implicated in the death and torture of Spanish citizens in Chile and at one point the former Chilean dictator was arrested and held in Britain. A public relations campaign to free Pinochet led by supporters of former prime minister Margaret Thatcher was launched and the Blair government predictably buckled and released him on medical grounds.
The move to indict the Bush Six began in the Spring of 2009 when once again a Spanish court took the initiative. It ordered a criminal investigation into allegations made by a British barrister, Phillipe Sands, that the six officials had enabled and abetted the torture of five former Spanish prisoners who were tortured at Guantanamo. The charges were filed by Gonzalo Boye, a Chilean-born Spanish lawyer and the judge assigned to the case was Baltasar Garzon, the same judge who initiated the legal proceedings against Pinochet.
The Spanish move was the signal for a major American fightback led by Team Obama. We know what happened and the extent of the pressure applied to Madrid by the Americans thanks to the Wikileaks cables.
The details were reported by the Crooks and Liars blog in December 2010:
“In its first months in office, the Obama administration sought to protect Bush administration officials facing criminal investigation overseas for their involvement in establishing policies the that governed interrogations of detained terrorist suspects. An April 17, 2009, cable sent from the US embassy in Madrid to the State Department—one of the 251,287 cables obtained by WikiLeaks—details how the Obama administration, working with Republicans, leaned on Spain to derail this potential prosecution.
“The previous month, a Spanish human rights group called the Association for the Dignity of Spanish Prisoners had requested that Spain’s National Court indict six former Bush officials for, as the cable describes it, “creating a legal framework that allegedly permitted torture.” The six were former Attorney General Alberto Gonzales; David Addington, former chief of staff and legal adviser to Vice President Dick Cheney; William Haynes, the Pentagon’s former general counsel; Douglas Feith, former undersecretary of defense for policy; Jay Bybee, former head of the Justice Department’s Office of Legal Counsel; and John Yoo, a former official in the Office of Legal Counsel. The human rights group contended that Spain had a duty to open an investigation under the nation’s “universal jurisdiction” law, which permits its legal system to prosecute overseas human rights crimes involving Spanish citizens and residents. Five Guantanamo detainees, the group maintained, fit that criteria.
“Soon after the request was made, the US embassy in Madrid began tracking the matter. On April 1, embassy officials spoke with chief prosecutor Javier Zaragoza, who indicated that he was not pleased to have been handed this case, but he believed that the complaint appeared to be well-documented and he’d have to pursue it. Around that time, the acting deputy chief of the US embassy talked to the chief of staff for Spain’s foreign minister and a senior official in the Spanish Ministry of Justice to convey, as the cable says, “that this was a very serious matter for the USG.” The two Spaniards “expressed their concern at the case but stressed the independence of the Spanish judiciary.”
“Two weeks later, Sen. Judd Gregg (R-N.H.) and the embassy’s charge d’affaires “raised the issue” with another official at the Ministry of Foreign Affairs. The next day, Zaragoza informed the US embassy that the complaint might not be legally sound. He noted he would ask Cándido Conde-Pumpido, Spain’s attorney general, to review whether Spain had jurisdiction.
“On April 15, Sen. Mel Martinez (R-Fla.), who’d recently been chairman of the Republican Party, and the US embassy’s charge d’affaires met with the acting Spanish foreign minister, Angel Lossada. The Americans, according to this cable, “underscored that the prosecutions would not be understood or accepted in the US and would have an enormous impact on the bilateral relationship” between Spain and the United States. Here was a former head of the GOP and a representative of a new Democratic administration (headed by a president who had decried the Bush-Cheney administration’s use of torture) jointly applying pressure on Spain to kill the investigation of the former Bush officials. Lossada replied that the independence of the Spanish judiciary had to be respected, but he added that the government would send a message to the attorney general that it did not favor prosecuting this case.
“The next day, April 16, 2009, Attorney General Conde-Pumpido publicly declared that he would not support the criminal complaint, calling it “fraudulent” and political. If the Bush officials had acted criminally, he said, then a case should be filed in the United States. On April 17, the prosecutors of the National Court filed a report asking that complaint be discontinued. In the April 17 cable, the American embassy in Madrid claimed some credit for Conde-Pumpido’s opposition, noting that “Conde-Pumpido’s public announcement follows outreach to [Government of Spain] officials to raise USG deep concerns on the implications of this case.”
“Still, this did not end the matter. It would still be up to investigating Judge Baltasar Garzón—a world-renowned jurist who had initiated previous prosecutions of war crimes and had publicly said that former President George W. Bush ought to be tried for war crimes—to decide whether to pursue the case against the six former Bush officials. That June—coincidentally or not—the Spanish Parliament passed legislation narrowing the use of “universal jurisdiction.” Still, in September 2009, Judge Garzón pushed ahead with the case.
“The case eventually came to be overseen by another judge who last spring asked the parties behind the complaint to explain why the investigation should continue. Several human rights groups filed a brief urging this judge to keep the case alive, citing the Obama administration’s failure to prosecute the Bush officials.”
Despite the pressure from Team Obama, the Spanish legal authorities would not quite take the final step and dismiss or close down the criminal investigation. When the new Spanish judge wrote to the DoJ in early 2011 asking for information about the six accused men and their part in formulating the torture policy, Mary Ellen Warlow was given the task of putting together the official answer from the US government. The letter she and a subordinate penned to their opposite numbers in Madrid requested the Spanish to drop the investigation and instead hand the case over to her colleagues for further action, a request that was, in the words of the Center for Constitutional Rights, “misleading” and “disingenious”.
The same woman who is seeking interviews from Boston College to sustain charges of “disappearing” Jean McConville against Dolours Price and possibly others, had no qualms telling the Spanish that “there is no basis for the criminal prosecution of John Yoo” and his five co-accused even though they gave the intellectual and legal justification for the CIA’s torture and disappearance of that unnamed Iraqi prisoner at Abu Ghraib – and others – as well as the torture, abuse and degradation of hundreds if not thousands of his countrymen; and no basis even though the Bush Six also gave the intellectual and legal justification for water-boarding detainees at Guantanamo and at secret CIA black sites in Europe and the Middle East, a practice that had prompted the US government of the day to bring war crime charges against Japanese soldiers who had inflicted the same torture on Americans during World War II.
No justification either because two civilian contractors – neither of whom were direct US government employees – had been indicted and convicted of torture in Afghanistan thus demonstrating the US’ determination not to tolerate such abuse. No justification because the CIA is allowed to keep its self-investigations secret, no justification because an internal DoJ investigation cleared John Yoo of criminal behaviour and no justification even though the Senate Armed Forces Committee had, in an April 2009 report, not only indicted the Bush White House for planning to use torture soon after the 9/11 attacks but said it employed torture in an effort to justify the war in Iraqi by “discovering” links between the Saddam Hussein regime and Al Qaeda:
“The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.”
Mary Ellen Warlow’s letter to the Spanish government demonstrated, the Center for Constitutional Rights concluded:
“…that the US is unwilling, not unable, to investigate these crimes for which there is a sufficient factual basis and indeed, an obligation to investigate under, inter alia, the Convention Against Torture. Spain must not, and cannot, defer to a policy decision not to prosecute, and must not transfer a case to the United States that it has been told unequivocally will not be prosecuted.”
As a case study in government hypocrisy the story of the two Mary Ellen Warlow’s takes the breath away. One demands that the crime of disappearing Jean McConville is so terrible that Boston College’s archives must be turned over to a government and police force which shows no willingness to investigate its own crimes so that the perpetrators can be brought to justice. The other indignantly denies the right of other governments to bring American officials to book for torturing, degrading, killing and disappearing Iraqis, Afghanis and assorted Arabs. Welcome to Obama’s America.