Lamentation over the Boston tapes does not prevent us dealing with the past

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Newton Emerson ‘s bleak assessment of how to deal with the past deserves serious attention (£).

The Boston College tapes make a mockery of all high-blown talk about “dealing with the past”. The idea that a formal process of investigation, truth recovery and historical assessment into 3,700 Troubles deaths could work at all, let alone satisfy all sides, looks absurd given the saga over one 42-year-old case.

As far as personal testimony is concerned the chilling effect of the use being put to the Boston tapes is hard to overestimate. But Newton goes further. In the Sunday Times he claims the contradiction is fundamental  between the demand for prosecutions  by politicians and (some) victims’ relatives and the option of producing a historical account of the Troubles. The latter he assumes, would not only  require protection against self- incrimination as is usual in public inquiries but a general amnesty: and there is a difference.

Newton also asks :” Would a formal process, encompassing thousands of cases, not provoke a far greater torrent of unscheduled revelations? How would the legal and political blowback not derail a formal process, as it has done to the Boston project.”

It depends what is meant by “formal. ” And more to the point, who’s going to start singing? Can the circumstances be imagined?   If an end to omerta was somehow suddenly signalled  so would the case for  an amnesty be enhanced. But this as unrealistic a prospect as would be its opposite, the  effectiveness of any new powers to compel witnesses.

There is an additional complication he doesn’t refer to which is contained in the Haass document, the proposal of an Historical Investigations Unit which would replace the partly discredited Historical Enquiries Team (HET) and the Police Ombudsman’s role in past cases, with the job of completing the HET’s work of reviewing about 800 cases, the power to compel witnesses, to  link up cases, carry out new investigations, recommend prosecutions and if it thinks fit, to review the entire record of the HET.  Instead of laying the past to rest, this could bring it zombie-like, back to life.

The HIU proposal appears influenced  by the” single mechanism” proposed to Haaas by Amnesty International , supported by the  critical analyses of the legal inquiry  down the decades, notably supplied  by the transitional justice team in the University  of Ulster. Potentially too, the HIU idea clashes with the next Hasss proposal of an Independent Commission for Information Retrieval ( ICIR). This would have a dual function of providing extended information for relatives and to allow information gathering in the archives to “tell the story” of the Troubles, through identifying  themes, patterns of events  and case studies .

The Emerson analysis (and he’s unlikely to be alone) appears to pose an impossible dilemma, between telling the story and satisfying relatives, which we’re told so often is the main driver for dealing with the past; or to put it more starkly, the incompatible choice between truth and justice.

In Northern Ireland we cherish our impossible dilemmas but does this one need to be quite so insoluble?  Leave aside John Larkin’s call for an end to prosecutions and let nature take its course. Concentrate instead on his reasoning, that the evidential trail in most cases has gone permanently cold. There is an debate to be held among legal experts as to  whether this is  actually true or not and it includes  implied charges of cover-up against the State authorities . But if true, why set up an expensive new body to carry out legal investigations if the evidence isn’t there any more? And why continue anguishing about an amnesty of the sake of a trickle of prosecutions? The so-called dilemma  begins to seem soluble after all.

Moreover legislation for an powerful  new structure of legal investigation seems inconceivable. Legal investigation seems likely to remain in the hands of the police, despite their protests.   The case is as compelling as ever towards  opening the files of closed historical cases  to scrutiny by academic historians such as the Arkiv group , lawyers such Kieran  McEvoy and transitional justice  and our small  but high performance corps of investigative journalists.

And what of future prosecutions? Still subject to the randomness  which  Newton  correctly identifies . But it’s worth remembering  that even Mrs Finucane isn’t calling for prosecutions. Essentially she wants two things that extend the already damning conclusions of the de Silva review  to identifying the links in the chain of collusion as far as it stretches (not only “who pulled the trigger but who pulled the strings”)  , and the right to confront and examine the  identified persons, whether police, army, MI5, civil servants and ministers in an inquiry.  Her case seems compelling and all the more  so when judge- led inquiries were abruptly announced into the comfort letters and ”police spies “ inside the Stephen Lawrence campaign. The contrast  is noted between the impact of  scandals which excite English interest and our own.

Papers disclosed in the long drawn out judicial review of the latest refusal to grant a public inquiry  into the Finucane murder included an email sent by Sir Jeremy Heywood, the Cabinet Secretary, to the Prime Minister stating the following: “Does the PM seriously think that it’s right to renege on a previous Government’s clear commitment to hold a full judicial inquiry? […]This was a dark moment in the country’s history – far worse than anything that was alleged in Iraq/Afghanistan […] I can’t really think of any argument to defend not having a public inquiry. What am I missing?

There can be no lapidary “official history” like those after a war.  But accounts largely based on the archives, while inevitably provisional and open to debate, would inject a powerful third force of robust analysis and objectivity  into the grossly politicised wrangling over the past. The writing of history also provides wider exploration and context. Making sense of the Troubles requires a wider approach than concentrating on the details of “the dirty war” alone.

This approach also has the clear benefit of avoiding running into the brick wall over an amnesty and should be attractive to our divided politicians. If the Stormont political parties were to adopt it, this in itself would be a clear sign of a certain desire to move ahead which somewhere in their mid-sets, they all share. They should begin by acknowledging  to the relatives  the limitations of legal process.

There’s plenty to uncover without an amnesty. It’s a huge task but one to relish for the chance of making a difference. Newton Emerson is too pessimistic. Everything does not depend on the fate of the Boston tapes .

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  • http://whereareyoufrancishutcheson.wordpress.com martyntodd

    Here is the truth about our past.

    Usuns did some noble things for noble reasons
    Themuns did some noble things for noble reasons
    Usuns did some dreadful things for noble reasons
    Themuns did some dreadful things for noble reasons

    Usuns have a view of the boundary between our noble acts and our dreadful acts. Themuns don’t agree where we draw the boundary

    Themuns have a view of the boundary between their noble acts and their dreadful acts. Usuns don’t agree where they draw the boundary.

    Some of Usuns and Themuns are ashamed of some of the dreadful things we/they did. We both therefore don’t want the truth about our/their roles in these to come out, ever.

    Some of Usuns and Themuns will never ever do dreadful things again, however noble the cause. These are the people we need to forgive and accept in our joint future.

    Some of Usuns and Themuns would do the same dreadful things all over again if they felt the need to. These are the people we need to exclude from our children’s future.

  • Son of Strongbow

    Yet another call for opening the “files” and the “archives”.

    Who holds these?

    Of course it’s the State, and that’s what much of this is about. An attempt to spin the ‘history’ of the past. To examine the minutiae of the detail within official records without context or reference to the filing cabinets of “armed groups”, which would be found to be, unsurprisingly, empty.

    A blind man on a galloping horse can see who’s agenda that would support.

  • Son of Strongbow

    ……. aside from keeping ‘investigative’ journalists in a job that is.

  • wild turkey

    ‘or to put it more starkly, the incompatible choice between truth and justice.’

    well put Brian. good writing, you struck the lightening rather than the lightening bug.

    you may be aware of John Kenneth Galbraith, economist, poker player, JFKs ambassador to India and all-weather trouble shooter

    ‘Politics is not the art of the possible. It consists in choosing between the disastrous and the unpalatable.’

    John Kenneth Galbraith 1962

    From a private letter to JFK upon his return from a ‘Fact Finding’ mission in Vietnam

  • Granni Trixie

    Brian
    You imply that you see journalists and academics as “innocent” bystanders” protected by virtue of their professionalism from bias but I have no more faith in them than anybody, certainly the historians and crime experts whom I have come across usually promote in their work particular analysis of the troubles. All we can do therefore is add their “versions” of analysis to the rest.

  • TwilightoftheProds

    SoS

    …it might look like the state is a great floundering whale stuffed with incriminating documents…and that the paramilitary groups are darting slippery piranhas with goldfish memories…

    BUT

    The state had touts. All sorts of intelligence too. Backroom discussions get passed back to the boss in note form.

    Same goes for the Irish govt. All this stuff gets pulled together somewhere. Why not get it too? Redacted to protect the ‘innocent’ but no paramilitary group is going to look well.

    Far far from it. Most truth commissions, dealing with the past mechanisms etc, have circled round the state not simply because its a large unwieldy beast which documents everything, but mostly because its usually the state that did the most damage.

    In our case that isnt true-even when you factor in likely collusion. The governments of yesteryear will come out bloody handed and stinking of sulphur. But what will the non state actors look like..many of whom are still in positions of power and influence?

    ‘Dealing with the past’ tends to gravitate towards the biggest harms done. There is never a presumption of equivalence at the tail end. And the documentation will not all reflect back on the government. It’ll point accusing fingers outwards too..even if not of evidential standard, it’ll complicate a lot of simple narratives. Not sure how they’ll put those on murals.

    …and people will find it laughable to attempt to pick and choose from documentation. There’ll be no effective cherry picking, try as they might.