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.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

28 thoughts on “Belfast Project: A New Subpoena To Boston College

  1. 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. 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. 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. 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. 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.

          4. 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!

            1. Ed, or is that ‘ed’ regardless of what you or Chris think of the PSNI they are legally bound to investigate crimes regardless of the passage of time to not do so would be open to legal challenge from the victims families and in fact if you concerned yourself more with the grieving than the gunmen you would know that several families have issued judicial challenges because the PSNI failed to follow evidence. In short the investigation may not lead to prosecution but they must still investigate.

              1. My argument for five years is that the Boston College subpoenas are further evidence that the police are not investigating. Grabbing interviews done by someone else in lieu of independently developing witnesses and evidence is a shortcut and a dodge, and resulted in Gerry Adams being released without charges. Jean McConville was murdered in 1972; the PSNI began to work on the case in 2011, and then only because someone else interviewed witnesses and participants for them. We see the result.

              2. GHarris, or is that GH, as chris bray notes below the RUC did not give a damn about jean mcconville for decades. and how dare you tell me to care more the grieving than the gunmen! this pursuit of the past in a biased way is only preparing the way for more grieving and gunmen. if you and your ilk were balanced in your condemnation of gunmen and noted that judicial challenges to the PSNI following their failure to pursue inquiries overwhelming concerned failure to investigate state crime, i might have more respect for you. and just who are you? or should i be asking what rank you hold?

              3. 1.) Person is murdered;

                2.) Police do nothing for four decades;

                3.) With the sponsorship of a research university, a team of historians and journalists spend years interviewing people who have knowledge of the murder of that person;

                4.) Police subpoena the tapes of the interviews, and listen to them;

                5.) Police somberly announce that they have conducted an “investigation” of the murder.

                Pressing “play” on a tape recorder is not a police investigation. The argument of pro-subpoena advocates is that the Police Service of Northern Ireland can’t possibly find out who committed a murder unless a university in Boston tells them the answer. That’s an embarrassing position to try to sustain.

                1. I don’t know. Suppose there’s an old murder with no physical evidence. The suspect refuses to incriminate inset when questioned, as is his right. Any taped confession would be not just the best evidence but maybe the only evidence of the crime. So maybe this is the best or even the only path open to the police.

                  1. Well, sure: If the police wait forty years to begin to investigate, then it does limit their options. One place for the police to start would be to not wait forty years. That would have solved some problems in the McConville case.

                    But then let’s compare what Boston College did to what the PSNI did: The researchers at Boston College somehow found people with direct knowledge of the McConville killing, and they asked them questions. Isn’t that how the police are supposed to do this?

                    When did the standard become the one where universities question criminals and the police stand by passively to get the tapes? Aside from the perpetrator who refuses to self-incriminate, why are the police in this hypothetical scenario unable to ask questions of witnesses and other people who may have knowledge of the matter? In this specific instance, why was the PSNI not able to do what the Boston College researchers did? What is it that police detectives do for a living — they sit and wait for universities to interview criminals, so they can find out who committed crimes?

                    1. Chris you seem to think that this lack of original investigation is unique to the McConville case, almost all Troubles killings were unsolved the lack of investigation by the RUC is part of the story of the conflict, the fact that the PSNI are being asked to try after all this time and right that wrong is a common story here in NI. The Mount Vernon supergrass trials, the convictions on the back of HET investigations are all part of that narrative. And more loyalists have been convicted of historic crimes than republicans so you can put that political bias argument aside. You seem to have been mislead to think that those connected to the Boston tapes are being victimised when they themselves left an evidence trail that if not followed would leave the PSNI open to judicial challenge. Back in NI there is no political outcry or sympathy to the plight of Anthony McIntyre because he’s not a victim but a victim maker. Post GFA the emphasises is on finding a way to deal with the past for the victims of conflict. You’ve clearly never had a loved one murdered or you wouldn’t be so blinded by the false narrative being peddled by those who claim academic freedom should take precedence over those left suffering without justice. The tapes may well never lead to a conviction that doesn’t mean they shouldn’t be sought as evidence.

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

  3. 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. 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.”

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