Phoenix Magazine
Vol 21, No 17. Aug 29 - Sept 11, 2003 

FBI's man puts away Michael McKevitt


There will have been little public sympathy for Michael McKevitt, who was recently put away for 20 years on a charge of directing the activities of an illegal organisation. However, the Special Criminal Court's almost total reliance on the word of one witness coached and financed by two foreign intelligence agencies must leave a considerable sense of unease with those who value the independence of the rule of law in Ireland.

There is no doubt that the court was impressed with the performance in the witness box of David Rupert, the chief prosecution witness. In a lengthy and considered judgement at the conclusion of the six-week trial, Mr Justice Johnson presiding said that the court was satisfied that Rupert had a considerable knowledge of the republican movement. He knew the whereabouts of McKevitt's house and other houses at Oakland Park and Greenore Road in Dundalk, where he said he had attended engineers' meetings of the Real IRA and one army council meeting. The court was particularly struck by the witness's ability to recall on day 4 and day 19 of the trial, the seating arrangements of a meeting in the Four Seasons Hotel in Monaghan, the first time he met McKevitt. Overall he had very considerable knowledge of the facts to which he testified, the court found.

All of this information was, of course, well known to the Gardai, MI5 and the FBI who between them have been monitoring every move of the Real IRA since it split from the Provos in 1997. The address of McKevitt's house, which is properly kept under surveillance 24 hours a day, is hardly a state secret. Nor were the seating arrangements of any meeting he attended in a public hotel in Monaghan. And given that Rupert was a 'co-operating witness' with the FBI, his evidence in court must have had the advantage of extensive and careful rehearsal with the intelligence agencies for almost 3 years before the trial. However, his performance certainly impressed the court.

The court also found that Rupert was "a very truthful witness". This was in stark contrast to the opinion of the head of the Garda Crime and Security branch, who, in other circumstances, has found him to be a "liar" and a "bullshitter".

The judge also referred to the considerable amounts of money that the witness has received and continues to receive from the FBI and MI5 and acknowledged that he was a contracted and paid agent of the FBI. But the court classified him not as a supergrass or an informer, but as a witness under protection.

RUPERT'S CREDIBILITY

The defence case hinged heavily on Rupert's credibility. A serial bankrupt (4 times, starting in 1974) and tax cheat, Rupert acknowledged to his home-town newspaper The Waterman Times that he had a reputation as a crook, thief and fraudster. He became a police informant in New York in 1974, when he was investigated for cheque fraud. He gave evidence before a grand jury there about drug deals he had set up with detectives. The fraud charges were dismissed.

Rupert first came to the attention of the Garda Special Branch in 1992 when he visited a Bundoran pub run by veteran republican Joe O'Neill. Rupert volunteered to become an informant, but his information was low-level and unreliable. One Garda report said the only information he gave them came from newspapers. By 1993, the Garda Crime and Security Branch tipped off the FBI when Rupert claimed to have contact with Irish republicans in Chicago. However, the FBI agent-in-charge of the Irish terrorism section there, Pat "Ed" Buckley, recruited Rupert as an informer. At that time Rupert was under Federal investigation for tax fraud but no charges were brought. In August 1997, Buckley told Rupert to fly to London. From this point on the action seems to have been driven by MI5, which would have a more obvious interest in Irish republicanism than the FBI.

Documents provided to the McKevitt defence team show that, even at that stage, MI5 was preparing him for an eventual appearance as a court witness. MI5 paid Rupert £10,000, but said this was "compensation and reimbursement" - an important legal phrase. Subsequently, Rupert got an agreement for pro rata payments from MI5, which doubled his take from the FBI.

The Garda Special Branch's poor opinion of Rupert, until he emerged as the secret weapon which might secure McKevitt's conviction, was shown in MI5 documents obtained by McKevitt's legal defence team as a result of discovery orders. The Garda view was summed up by Det Chief Superintendent Dermot Jennings of the Garda Crime and Security Branch (CSB) who described Rupert to MI5 officers as a "bullshitter" and "a liar".

As chief of the CSB (formerly C3) at Garda HQ, Jennings is the working head of the Irish State Security apparatus. His opinion, therefore, expressed at a formal meeting (which it was never expected would be made public) with senior MI5 officers in London, at which he was accompanied by Det Supt Peter Kirwan, might reasonably be regarded as convincing by any Irish court. It was not, since Jennings explained away these comments in evidence given for the prosecution.

One MI5 briefing note states" In June 1999, DCS Dermot Jennings of An Garda Siochána, who had not met Rupert since 1996, expressed his personal opinions about Rupert, which were not favourable. He expressed doubts about Rupert's judgement, and Jennings stated that Rupert had falsely suggested that Jennings had not paid him all the money he was entitled to". (The rest of the document is obliterated.)

Another MI5 document marked "Secret" and labelled "Telegram to Washington 14 June 1999" states: "I spoke to Dermot Jennings privately on 11 June about Rupert … (the rest of the long paragraph is obliterated). Paragraph 2 reads: "Jennings seemed embarrassed at the mention of Rupert's name and took a little time to gather his thoughts, but at no time was he cross or disappointed … but was evidently surprised … (When) he had composed himself he made a number of disobliging comments about Rupert rehearsing some of what is already on file and Rupert's threat to expose his agent role through his lawyer if he did not receive certain payments; the fact that his wife was conscious and that he told her everything; Rupert's overblown sense of his own importance and the value of his information; and the fuss - Jennings used the word "lies" - over payments made or not made by Jennings. He also said rather cryptically that Rupert needed to watch himself with PIRA, referring to his association with AN Other, a PIRA member from Sligo.

RUPERT'S DODGY BACKGROUND

MI5 accepted that Rupert had a dodgy background. One MI5 document reports: "At a meeting on 30 August 2000, when discussing his deployment, he (Rupert) described 'some of his contacts within the Afro-Caribbean community and the Indian reservations with whom he dealt over many years'." The report notes that "at a meeting on or about the 13th of Sept 2000, when discussing his deployment, Rupert related much about his earlier criminal and smuggling background."

An MI5 file note dated 15 September 2000, records a conversation between the MI5 section head in London and Rupert's agent handler. The report, giving an account of the handler's meetings with Rupert in Chicago, is largely obliterated. However, one key section reads: "The subsequent meeting between (handler) and Rupert went very well. Rupert was confident, sensible and related much about his earlier criminal and smuggling background."

A secret report by a New York State Police intelligence collator dated August 25, 1993 describes him as: "An extremely smart, street-wise criminal who would insulate himself from any illegal act by using others as front people. Rupert is believed to set up the criminal enterprise, handle the money and have his partners and others take the risks. He is very smooth, bright, and will do anything if he sees a financial profit in it." The report said Rupert was well-known to police in northern New York state where he was suspected of using his trucks for thefts and the smuggling of illegal aliens, drugs, weapons and explosives between Canada and the US.

The court judgement summarised Rupert's business experience in the following words: "He clearly had a very chequered business career and operated close to the edge in many matters."

RUPERT'S REWARD

Rupert's total take as a result of McKevitt's conviction has been estimated at around $5 million. This consists of an acknowledged $1.5 million from the FBI up to the year 2000, plus a similar payment from MI5 through the pro rata agreement for services to them, plus a reported $50,000 for life and a substantial percentage of the profits of a book on his life and times in Ireland being ghost-written by two US journalists. Much of these payments were dependent on McKevitt being convicted.

An undated and heavily censored MI5 file note made available on discovery reads: "Rupert volunteered he was a "whore" … and his motive is money. He had earlier told the FBI that he hoped the money would not dry up … Rupert is immediately available, subject to our agreeing a financial package and secure comms…" Intriguingly, the censored MI5 note does not say for what Rupert was "immediately available". Was it to give evidence in an Irish court in return for "a financial package"?

An undated MI5 paper says: "On November 28, 2000, when discussing the possibility of giving evidence against McKevitt, Rupert stated that his participation (in any prosecution of McKevitt) was dependent upon the right terms. He asked what the figures were. He was told it was vital to avoid any suggestion that his testimony had been induced by some promise of reward. He could not be rewarded for his testimony. He could be compensated for his loss of earning potential; the impact on his lifestyle and arrangements could be made for the necessary security measures to be taken to ensure his protection for as long as they were needed.

Rupert said that he wanted $2 million for his testimony to be paid over a 15-year period at a monthly rate of $15,296. In addition, he wanted $240,000 up front to facilitate the purchase of a truck and allow him to start…" (the remainder of the report was unavailable to the defence legal team). The British ambassador, Sir Ivor Roberts, later gave evidence that he had been advised by MI5 that "all relevant material relating to David Rupert had been made available to the defence".

The court's judgement noted that Rupert signed a contract with the FBI to become an "Intelligence Asset" on February 24, 1997. This contract was reviewed on July 20, 2000, and again in 2001, under the terms of which Rupert became a "co-operating witness". Apart from finding Rupert "a very truthful witness" the court, as stated in the judgement, found that the defence had sought to discredit the witness and show him to be unreliable and untruthful. However, in the court's opinion, there was no proof that the witness offered "any deliberate falsehoods".

In cross examination by Hugh Hartnett SC, Rupert was questioned repeatedly about discrepancies between what was in his statements and what he had written in MI5 and FBI e-mails. As a veteran performer in State and Federal courts since 1974 he was clearly at ease with the cut and thrust of cross-examination. When Hartnett trapped him into contradicting himself he resorted to the expression so beloved of some witnesses at the Dublin Castle tribunals of saying he could not recall what he had said earlier. On one occasion when Hartnett pointed out that he was saying the opposite of what he had said the previous day in court, Rupert retorted: "I do not recall what I said yesterday … you've done your job this morning, you have me thoroughly confused."

RUPERT'S INCONSISTENCIES

Some of the "inconsistencies" were blatant. He told the Special Criminal Court that his trucking firm went into receivership because of a fatal crash that could have resulted in $50 million in personal injuries claims. Defence lawyers discovered that he had filed for bankruptcy two weeks before the crash. His claim that the bankruptcy was triggered by a disastrous road accident fits in with much of what Rupert was trying to project about himself as an honest businessman whose repeated bankruptcies were due to bad luck, not fraud.

In 1974, then aged 23, Rupert - known to his friends as Joby the Giant - was a self-employed logger and part-time insurance salesman for North West Mutual Life. His stated income in 1972 was $3,600, while he showed a negative income (loss) for 1973 in bankruptcy papers. North West were trying to recover $3,000 in insurance premiums Rupert had collected, but which they hadn't received. He had more than a dozen court judgements against him and 50 creditors. He claimed in the Special Criminal Court that his bankruptcy petition was withdrawn. McKevitt's defence team found it was not. Hardly a crucial point, but not one either that confirms his description of being "a very truthful witness".

His 1985 bankruptcy was triggered by fraud when he sold a still-mortgaged house, pocketing $30,000 the buyers gave to pay off the loan. When Federal marshals seized his DeLorean car and other assets he boasted to his local paper, The Waterman Times, that the assets were either worthless or leased. He claimed the Democratic Party, the County Sheriff and the banks mounted "a vendetta that eventually ruined me financially by plundering my business and branding me a thief and a crook". His bankruptcies got bigger and bigger. In 1992, he went bust for $2.5 million. Some of his 30 creditors were employees whose taxes had been diverted by Rupert for his own use.

Some of the most glaring "inconsistencies" in Rupert's evidence centred on discrepancies about the times, locations and dates of meetings he claimed he attended in the 2,140 secret e-mails he sent, and what he said on the witness stand. He made 4 statements in all. The defence was refused inspection of his handwritten statements, being furnished instead with typed copies, which had numerous gaps. Crucially, the defence was refused inspection of Rupert's passport that could have been checked with e-mails about where he had been on specific dates when he claimed to have met RIRA men, including McKevitt. All of Rupert's phone records have disappeared, while tax information which was on the public record at Dickson House, the Federal building in Chicago, was removed after Irish Americans inspected it but before they managed to get copies for the defence team.

It was concerning on of those "inconsistencies" that the trial finally came to the point where McKevitt dismissed his legal team and withdrew from the court. Rupert insisted in court that he attended an RIRA meeting in Greenore on February 17,2000, at which McKevitt was present. However, a Garda surveillance report showed McKevitt could not have been there as he was under observation at his home at that time. Hugh Hartnett SC for the defence complained that the defence had not been given the surveillance report until it was too late to cross-examine Rupert on it.

The court found that practically the entire of the cross-examination of David Rupert spanning some 11 days concentrated on his activities and history within the US. Mr. Hartnett sought to discredit the witness and show him up to be and unreliable and untruthful witness and a person not worthy of being believed. To this end many topics were investigated: the production or not of photographs when he first met FBI agent Buckley and his two statements to the Gardai relative to same; his reputation in the eyes of trooper Hamill as a smuggler and person operating close to the margins of legality; his reputation in the eyes of FBI; his reputation in the local press in Meccina; a police informer and betrayer of friendships; his retention of monies from the sale of his house which ought to have been paid to his bank; his views of the collusion between a local judge and that judge's former partner; gambling negotiations in Florida with Mafia types; his alleged arrest and detention for the abducting of two young girls in the Alabama area described as white slave trading; smuggling on the Canadian border and the use of Indian reservations for that purpose; the use of the bankruptcy system in the US to avoid paying debts on more than one occasion; the relationship between his brother Dale and his employer, a former colleague of the witness and the fact that this colleague and Dale were charged, convicted and sentenced for dealing in drugs; bounced cheques; wire fraud; flamboyant cars; deals with tax authorities; use of book rights and film rights to raise money; etc.

It was principally on the evidence of this man that Michael McKevitt was found guilty and sentenced to 20 years imprisonment. McKevitt is expected to appeal to the Court of Criminal Appeal.