Could Boston Tapes case put peace process at risk?
Failings in the police investigation of the murder of Jean McConville prompted the efforts currently under way in the US courts to obtain tapes of interviews with former paramilitaries.
The suggestion is made in a submission this week by the American Civil Liberties Union to the Massachusetts District Court hearing an appeal against a ruling that some of the tapes, currently held by Boston College, should be handed over to the British authorities.
The Massachusetts affiliate of the civil liberties union (ACLUM) also alleges that part of the motivation for the action has been to discredit the Sinn Fein leader, Gerry Adams.
It is believed that the tapes contain allegations from former members of the Provisional IRA that Adams organised the kidnap and killing of the west Belfast housewife in December 1972.
"The investigation into the abduction and death of Jean Mc Conville by the PSNI and its predecessor the RUC was, simply, a non-investigation - at least until the matter became grist for political opponents of Gerry Adams," says the ACLUM.
The civil liberties group intervened to support journalist Ed Maloney and former IRA prisoner Anthony McIntyre - who acted as researcher on Boston College's Belfast Project - in appealing against the refusal of a lower court to allow their own legal team to argue their case rather than depend on lawyers for the college.
The project involved up to 30 interviews with former paramilitary activists conducted on the basis of assurances from Maloney and McIntyre that none of the recorded material would be made public during the lifetimes of the interviewees.
The brief submitted by the ACLUM declares that the ability of journalists or academics to protect sources makes it essential "that those who assume confidentiality obligations in exchange for obtaining such information have the right to be heard in opposition to attempts by public or private parties to compel disclosure".
The brief also argues that the lives of participants in the project would be at risk if material is provided to the police which could form the basis of charges against members or former members of the IRA.
The killing of Jean McConville is at the heart of the case. A widow and mother of 10, aged 37, she was abducted by members of the IRA from her Divis flat and killed as an informer.
Her body wasn't found until 2003, when a member of the public stumbled on the remains while walking on Shelling Hill beach in Co Louth.
The investigation of the killing by the RUC at the time of the abduction and by the PSNI following the discovery of the body was the subject of a damning report by the Police Ombudsman in 2006.
The ACLUM tells the Massachusetts court that this investigation had revealed that: "The Northern Ireland police did not even investigate the death ... for more than two decades. Now, in the name of solving a 40-year-old murder, the [US] Government risks subjecting multiple participants in the Belfast Project to the ultimate retaliation ...
"Although the police received multiple reports about the abduction, the Police Ombudsman's investigators were 'unable to find any trace of any investigation into Mrs McConville's abduction during the 1970s and 1980s'. No investigation at all took place until 1995 ... The police who worked the McConville's neighbourhood in 1972 were questioned and 'none could recall any investigation being carried out'.
"One detective conceded 'that because of the situation ... at the time, enquiries in the area were restricted to the most serious cases', of which the McConville abduction apparently was not one.
"Even three decades later, police co-operation with the Ombudsman's investigation was less than complete."
The ACLUM's key suggestion is that the action to obtain the tapes was launched only after it was suggested that they might contain information linking Adams to the kidnap and killing.
In balancing Maloney's and McIntyre's right to keep the information confidential against the public interest in disclosure, the ACLUM argues, the court should examine "whether the information was sought as part of a legitimate murder investigation, or an attempt to use the investigation to embarrass Adams".
If the Massachusetts court decides to conduct an investigation along these lines, the case may be taken into territory touching on the peace process.
The court action has been taken in the name of the British Government. However, Liam Clarke suggested in the Belfast Telegraph in January that the Government was acting at the request of the PSNI, which had in turn been prompted by the Historical Enquiries Team.
The ACLUM sums up its argument: "Academic freedom should not pay the price for the constable's incompetence."
A decision in the case is expected next month.