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.