State may play big role in Boston Tapes conclusion
Published 28/02/2012 | 08:00
Ironically, for a case sparking huge interest on both sides of the Atlantic, there are times when following the Boston College IRA tapes court saga is akin to watching paint dry.
Last week, Boston College appealed against a judge's ruling that it surrender to US prosecutors (acting on Britain's behalf) interviews conducted a decade ago with seven former IRA members - interviews deemed, to varying degrees, of relevance to the IRA's 1972 murder of Jean McConville.
In December, Judge William Young had ordered the college to hand over interviews conducted with convicted Old Bailey bomber Dolours Price, in which she allegedly implicates Gerry Adams in Mrs McConville's murder.
That ruling was appealed by two lead researchers of Boston's oral history project on the Troubles, journalist Ed Moloney and former IRA member Anthony McIntyre, who argue the peace process will be imperiled if the PSNI ultimately obtains the material and initiates prosecutions.
However, it may be that the fate of the interviews may be decided via quiet diplomatic back-channels rather than a courtroom.
Judge Young said in December there were few grounds for flexibility regarding America's obligations under the 1994 US-UK Mutual Legal Assistance Treaty.
The only one with potential relevance in the Price case is if the US was to deem any of its "essential interests" at risk. Moloney and McIntyre argue, given Washington's long-term involvement in it, the Irish peace process qualifies.
Professor Jim Cohen, a criminal law expert at Fordham University in New York, said the "essential interests" clause could play a pivotal role. "No question about that," said Cohen. "[The court] would have to defer to the sovereign - the sovereign being the State Department, as representative of the United States."
Cohen added that Secretary of State Hillary Clinton could also make a statement that, while stopping short of declaring that America's essential interests are at stake, "would allow a court to conclude that and thus take the weight off the executive branch".
The State Department's role has always been a wild card. Several Washington sources, told the Belfast Telegraph that 'State' - and even Clinton herself - must have signed off on the Justice Department's decision to pursue the British subpoena.
The question now is whether or not opposition to the subpoena by Irish-American groups and some senior members of Congress will be enough to persuade State to weigh in on behalf of Boston College, Moloney and McIntyre.
One insider, who's long had a hand in Irish affairs, said a State Department intervention is by no means certain. "They may decide the peace process is healthy enough to survive on its own," he said. "But if they decide this is a problem to be solved, then I think the problem will be solved quietly, behind closed doors."
As an example, he cited the case of three IRA prisoners who escaped from the Maze prison in September 1983 and were later arrested in the San Francisco area.
Years of British attempts to secure their extradition from the US followed. But after the signing of the Good Friday Agreement, Britain scrapped the effort.
"And the reason they withdrew it was that the Clinton administration let it be known that they really didn't like it," said the insider.
Whether or not history repeats itself may well determine the victor in the Boston College saga.