Belfast Project: A New Subpoena To Boston College

Update: According to the BBC, McIntyre means to bring an action in the High Court in Belfast to try to stop the latest subpoena.

The US government, acting pursuant to the US/UK mutual legal assistance treaty, has apparently obtained an order from the District Court in Boston for issuance of a subpoena to Boston College in the Belfast Project case. We can glean from the new subpoena that the UK authorities are investigating charges including attempted murder, illegal possession of explosives, conspiracy, illegal possession of an imitation firearm, and membership in a proscribed organization. On their behalf, the US government is seeking the recordings of interviews of Anthony McIntyre (that is, interviews in which he is the person interviewed, not interviews in which he was the interviewer).

Last year I reported that the Irish authorities, acting pursuant to an MLAT request from the UK, had sought to question McIntyre but that he had refused to answer any questions. So I think a subpoena directed at his past statements is a logical next step. On the other hand, Chris Bray, a long-time critic of the US and UK authorities and of Boston College, points out that the subpoena is being issued years after the Belfast Project case got going. (He also mocks the government for seeking proof that McIntyre was a member of the IRA, which is well-known, but it seems to me that he assumes, maybe wrongly, that the UK government is seeking to prove that McIntyre was a member of a proscribed organization when in fact it could be seeking to prove, through McIntyre’s past statements, that another person was a member of a proscribed organization).

The proceedings are sealed, and so we do not know what the government said in its application. Nor is it clear whether Boston College has or will object to the subpoena, or whether McIntyre will seek to assert his own objections. Ed Moloney and Wilson McArthur, in their comments on the new subpoena, have objected to the secrecy of the proceedings, “like some modern day Star Chamber.” But secrecy is the rule in criminal investigations: grand juries issue subpoenas in secret and take evidence in secret. May I also point out that Moloney & McArthur make a common mistake when they equate the Star Chamber with secrecy. In fact, its proceedings were open to the public. I could say a lot more about the Star Chamber, which has been sometimes unfairly maligned, but that’s for another post!

Of course, while the proceedings are sealed, there is no gag order as far as I can tell, and BC is perfectly free to disclose the facts about the proceedings if it chooses. Indeed, we know that someone, either from BC or from the government, made the subpoena public, else we wouldn’t have a copy. My expectation is that if there is a motion to quash the subpoena, then Judge Young, the presiding judge, will unseal the docket at least in part, so that the public will have access to those proceedings.

I will keep you posted on developments.

29 responses to “Belfast Project: A New Subpoena To Boston College”

  1. Chris Bray

    A tape of Anthony McIntyre saying that someone else had been in the IRA thirty years ago would be an even more absurd thing to pursue with a subpoena. The other person would just deny it, and McIntyre has said that he’ll remain “totally mute” if the police try to question him. Stale, unsworn hearsay — valueless.

    If someone taped me saying that Ted Folkman was in al-Qaeda twenty years ago, and the police got the tape, do you think you would be convicted?

    The police in Belfast have received many, many Belfast Project tapes at this point. They’ve had some of the tapes for more than four years. No one has ever been convicted because of anything that was said on any of them. Political theater. Empty.

    1. Evidence doesn’t have to be admissible to be discoverable or even to be useful, right?

      1. Chris Bray

        In theory. In this case, investigating decades-old crimes that are covered by the Good Friday Agreement, the usefulness would be awfully limited. Put that on the scale against the damage to the independence and viability of academic research.

        1. Well, I suppose there’s no point in rehashing the whole discussion from a few years ago. My thought, then and now, was that the wisdom of the investigation is entirely independent of the legal questions these subpoenas present, and that no one could reasonably have believed that these materials would be privileged.

        2. GHarris

          Chris is wrong in that Ivor Bell has been returned for trial and there’s nothing unusual about how long its taken for that to happen, the wheels of justice turn slowly in NI, there are people remanded for two or three years awaiting trial so he’s wrong to suggest they have no evidential value. Each on merits. And the GFA did not have an amnesty included, people have and continue to be prosecuted for historic crimes and many families have campaigned for this to continue. Chris displays a remarkable lack of understanding about the ongoing victims and legacy debate here in NI that remains politically unresolved. People in pain denied justice who lost loved ones don’t really care much for academic freedom he should maybe speak to the victims rather than the perpetrators, get a different perspective.

          1. Thanks for the comment, GHarris. There’s no question that the wheels of justice can turn slowly. I suspect but do not know that part of the explanation of the timing of this new subpoena relates to the amount of time it took for the Northern Ireland bureaucracy to make a new MLAT request and the time for the US bureaucracy to review it and move forward.

          2. Chris Bray

            The debate about victims being unresolved is an argument against these subpoenas, not an argument for it. Figure out where you want to point the car before you mash down on the gas pedal.

            As for people in pain and who are denied justice, which of Jean McConville’s kidnappers and killers have been charged with kidnapping or murder because of the Belfast Project tapes on that topic? And when did the denouement to the Winston Rea tapes debacle take place?

          3. Chris Bray

            To put that a little differently, my view on the available evidence is that the PSNI couldn’t catch Jean McConville’s killers if you gave them a time machine and a map to Shelling Hill beach. The ineptitude of the police is the topic, here.

            1. ed

              as for me, i just never did like men who wear bowties. there’s something really weird about them.

          4. ed moloney

            And you are wrong GHarris, whoever you are. According to this UK govt publication, page 14, NI Prison Review, the average time spent on remand in NI is 5.95 months. Ivor Bell has been on remand for some 27 months. The April 1998 GFA did have an amnesty clause: anyone in jail got out by April 2000, two years later. Anyone convicted of offences prior to ’98 could only be jailed for 2 years maximum. The policy of pursuing ancient offences while largely ignoring or sidestepping the crimes of state forces, which include murder, merely perpetuates the Troubles in another form. It is one reason why, nearly three decades after the GFA that NI is still not properly or fully at peace. This pursuit by the PSNI is also biased in a sectarian way. Every single UVF participant in the Belfast project who asked for their interviews back from BC have had them returned; none of the republican interviews have been returned. What conclusion is to be drawn from that? plus ca change!

  2. Chris Bray

    If the tapes are unlikely to lead to convictions, it’s an abuse of the MLAT process to request them. Mutual legal assistance exists for the purpose of obtaining evidence in actual criminal investigations, not for the purpose of helping people with their feelings.

    And again, in the point that you never address, why is pursuing the tapes the only way the police can investigate? Did no one ever tell them how to find witnesses on their own?

    1. You don’t really think any of the interviewees are likely to speak to the police, do you? The beauty of the tapes from the police point of is that the interviewees were candid because they (wrongly) believed that they were speaking in complete confidence.

      1. Chris Bray

        First, do you have any evidence that the police even tried to speak to any of the BC interviewees before they resorted to an international legal effort to seize academic research material?

        Second, if your premise here is correct, no police detective could ever solve any crime until a university did a research project on it. As I say again and again and again, supporters of this effort argue that the only way the police could ever hope to solve a crime is if some professors tell them the answer.

        1. Well, yes, they tried to speak to McIntyre and he refused, so they have taken the next step.

          1. Chris Bray

            “They” didn’t — the police in the South did, briefly. No one tried to question any of the interviewees about Jean McConville, and no one tried to question Winston Rea before his subpoena.

            1. The police in the south in response to an MLAT request from the UK, right?

              1. Chris Bray

                Unclear. My understanding is that the police on both sides of the open border in Ireland routinely cooperate in a relatively casual way. I suspect they just made a phone call, rather than going through central authorities in the formal MLAT process. Perhaps GHarris can give us the insider’s account.

                1. My post on the issue quotes Ed Moloney as saying that the Irish authorities were acting pursuant to an MLAT request.

                  1. Chris Bray

                    I missed that. My take would be that they’ve made two pointless and illegitimate MLAT requests in the McIntyre non-investigation.

  3. Chris Bray

    GHarris argues, “The tapes may well never lead to a conviction that doesn’t mean they shouldn’t be sought as evidence.”

    This isn’t what the British law governing recourse to MLAT requests says. Section 7(5) of the Crime International Cooperation Act of 2003 sets these requirements:

    “s.7(5) In relation to England and Wales or Northern Ireland, a designated prosecuting authority may itself request assistance under this section if –
    (a) It appears to the authority that an offence has been committed or that there are reasonable grounds for suspecting that an offence has been committed, and
    (b) The authority has instituted proceedings in respect of the offence in question or it is being investigated.”

    An MLAT request must involve a real criminal investigation that is expected to lead to criminal proceedings. This vague, emotions-centered argument that it’s all a meaningless gesture but the police have to do it anyway — this is not the law, and not the function of legal systems.

  4. Chris Bray

    In a new editorial, the Irish-American news site Irish Central calls the McIntyre subpoena “sinister,” and describes the McConville subpoenas as “a wild goose chase.”

  5. […] shouldn’t be returned to the United States without having been turned over to the PSNI. I reported on the UK’s MLAT request and the subpoena back in April 2016. It’s difficult to […]

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