McDowell as Deep Throat was an admission of something irregular

REMEMBER ‘A Few Good Men,’ starring Jack Nicholson and Tom Cruise?

Nicholson plays Colonel Jessep, an arrogant military commander cross-examined by a whipper-snapper military prosecutor (Tom Cruise) about whether he ordered the ‘code red,’ ie, a violent roughing up that killed a soldier.

Eventually, Colonel Jessep snaps - ‘You’re goddam right I did.’ The case is over. The angry old colonel is led away for courtmartial.

There was something of Colonel Jessep about Michael McDowell’s revelation that he was unconcerned about a newspaper getting hold of a false passport application from Garda files because he himself had given the document to a journalist, resulting in the claim that former journalist Frank Connolly had travelled to Colombia on a false passport.

McDowell wasn’t goaded into making the admission but, like Colonel Jessep, was convinced of the rectitude of an act that was in reality very questionable.

Unlike Colonel Jessep, however, McDowell’s head will not roll. The PDs enjoy a certain amount of autonomy from the Taoiseach and McDowell’s party leader, Mary Harney, is backing her man.

As Minister for Justice, McDowell enjoys an informal presumption of acting within the law.

Also, he has a sound instinct for what the public like to hear, and when it comes to his views on Sinn Féin, he’s on home ground because the political establishment and much of the public is scared of Sinn Féin right now.

In general, Michael McDowell’s excoriation of the republican movement is very refreshing. He is bang on the money when he reminds us of IRA criminality and its appalling consequences for innocent people.

But we must question the propriety of this leak, and to a lesser extent the decision to use Dáil privilege to claim that Frank Connolly travelled to Colombia on a false passport and the briefing given to Irish-American moneybags Chuck Feeney which led to the withdrawal of funding from Connolly’s Centre for Public Inquiry. Paradoxically, in this era of transparency and accountability, McDowell’s admission that he gave documents to a newspaper is one of the key problems. We are all a bit conflicted when it comes to identifying the precise role that leaks to the media should play in the exposure of wrongdoing.

We are delighted with the successes of investigative reporters, and leaks are often crucial to their work. But leaks and exposés often have serious implications for the good name of certain parties, at a stage where they have not yet faced any criminal charges.

What’s more, the leaking may involve a self-serving or even illegal act. McDowell may feel he has every right to leak stories to journalists, if the public interest requires it. But does he? Doesn’t his role as Minister for Justice require him to confine his activity to the more official structures for the investigation of wrongdoing? And let’s be clear: it was a leak on any realistic assessment. There was no disclosure in the Irish Independent’s story that the information had come from the Minister for Justice.

Ex post facto, McDowell claimed responsibility, but for a few days he was an invisible presence at the heart of a major news story, and this is not what you expect from a minister for justice. For him to announce, so long after the event, that he is Deep Throat cannot but amount to an admission of doing something irregular. And even if he hadn’t leaked, but had given an official briefing to media, there would be the impropriety of doing so on such a sensitive matter before bringing it to the floor of the Dáil.

But what of the implications of McDowell’s Dáil statement for Frank Connolly’s right to his reputation and due process of law?

Can Connolly not claim that the DPP might yet decide to bring charges and that McDowell’s actions will have prejudiced matters in rather the same way that comments by Mary Harney once scuppered the possibility of proceedings in relation to Charles Haughey?

Or view it the other way. Couldn’t Connolly argue that, so far, the DPP has decided not to prosecute and that the Minister for Justice, the man with responsibility for the criminal justice system, should not otherwise put his good name in danger by allegations of criminality? McDowell may argue that the strong defence of freedom of expression in the European Convention on Human Rights would trump any consideration of Frank Connolly’s good name.

HE might also argue that he is not undermining due process in any meaningful sense because Connolly’s liberty is not at stake. But the actual ground on which the minister has staked his claim of rectitude is more shaky.

He cites the Official Secrets Act and says his actions are designed to protect the security of the State. But how exactly does the security of the State depend on this revelation? Are people with alleged republican sympathies not entitled to set up a Centre for Public Inquiry? Does a minister who fears that such an inquiry body would further an extreme republican agenda or subvert the institutions of State in future have the right to scupper such an organisation by attacking the reputation of its director using files which only he can access and which may or may not incriminate?

We may not agree with an extreme republican agenda, and in private we might wonder when we see a sibling of a member of the Colombia Three getting involved in a political watchdog authority. But does that give us the right to ventilate allegations that haven’t been tested in court? Where does that stop?

And, in the hands of the wrong minister, couldn’t such a power be used for all manner of thought control? The supreme irony of all of this is that the Good Friday agreement was designed to enable SF and the IRA, and all their supporters, sympathisers and siblings, to buy into constitutional ways - including active participation in politics, journalism, think-tanks and watchdog bodies as an alternative to subversion.

Many people, including McDowell, are trying simultaneously to encourage this process while arguing that some republicans may not be sincere about making the transition. Quite a few people, for that reason, will sympathise with the minister’s general approach and overlook the fast and loose approach to proper procedures.

But others will be sceptical. The Government’s public noises are all hostile to Sinn Féin and the IRA. There will be no release of the killers of Garda Jerry McCabe, we are told. There will be no free ride for Frank Connolly, even though he has been prosecuted for nothing, much less convicted.

Yet at the same time, that same Government which includes Michael McDowell is signing up to a process that will allow terrorists on the run to escape prosecution without ever having to admit their guilt. It would be a more principled stand if the Government forced on-the-run terrorists at least to admit their past wrongdoing before availing of an amnesty. And leave the leaking alone.