Finally, Government Surveillance to Get Behind: FBI to Start Recording Interrogations

The FBI is quietly implementing
a major change in policy that potentially has huge—and
positive—ramifications for anybody suspected of a federal crime:
The agency is going to start recording interrogations of suspects
in custody in July. The change was quietly ordered earlier in the
month. Previously the agency had a policy against recording
interviews. The Arizona Republic
obtained the memo:

“This policy establishes a presumption that the Federal Bureau
of Investigation (FBI), the Drug Enforcement Administration (DEA)
the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and
the United States Marshals Service (USMS) will electronically
record statements made by individuals in their custody,” says the
memo to all federal prosecutors and criminal chiefs from James M.
Cole, deputy attorney general.

“This policy also encourages agents and prosecutors to consider
electronic recording in investigative or other circumstances where
the presumption does not apply,” such as in the questioning of
witnesses.

An accompanying message from Monty Wilkinson, director of the
Executive Office for United States Attorneys, says the change
resulted from lengthy collaborative efforts among DOJ and law
enforcement personnel. Media representatives at the Justice
Department and FBI did not immediately respond to requests for a
more detailed explanation.

Why is this such a huge deal? Because making false statements to
the FBI is a crime, and in the absence of a recording, even
challenging what an FBI agent claims you said in an interview can
get you into trouble. Harvey Silvergate, civil liberties lawyer and
author of Three Felonies a Day: How the Feds Target the
Innocent, explained, in the wake of the Boston Marathon
bombing, how this dynamic resulted in
charges against a friend of one of the bombers, a friend who
played absolutely no role in the attack:

[Robel] Phillipos is a 19-year-old Cambridge resident, former
UMass Dartmouth student, and friend of alleged Marathon bomber
Dzhokhar Tsarnaev. He faces charges of making materially false
statements during a series of interviews with FBI agents. If
convicted, he could get up to eight years in federal prison and a
$250,000 fine.

Phillipos underwent four FBI interviews. He is not alleged to
have had any advance knowledge of, much less role in, the bombing
itself. The FBI was apparently trying to obtain his information and
cooperation concerning the role and knowledge of Dias Kadyrbayev
and Azamat Tazhayakov, the two Kazakh students who allegedly found
and disposed of Tsarnaev’s backpack and laptop after he was named a
suspect in the bombings.

The public and the media should withhold judgment not only as to
what Phillipos did or did not do, but also as to what he did or did
not say when questioned by FBI agents. Indeed, the public should
look skeptically at the accuracy of any FBI claim regarding what
transpires in the bureau’s infamous witness interviews. Here’s
why.

FBI agents always interview in pairs. One agent asks the
questions, while the other writes up what is called a “form 302
report” based on his notes. The 302 report, which the interviewee
does not normally see, becomes the official record of the exchange;
any interviewee who contests its accuracy risks prosecution for
lying to a federal official, a felony. And here is the key problem
that throws the accuracy of all such statements and reports into
doubt: FBI agents almost never electronically record their
interrogations; to do so would be against written policy. …

Frightened and confused interviewees, who, if they deny they
said what any 302 report claims they uttered, can then be indicted
for making false statements. The FBI is thus able to put words into
a witness or suspect’s mouth and coerce him to adopt the FBI’s
version as his own. The FBI thus establishes the official version
of what a witness said, and the pressure on the witness to adhere
to the 302 version is enormous. Any deviation, after all, raises
the question: “Were you lying during your FBI interview, or are you
lying now?”

The Arizona Republic talked to Steve Drizen, a
professor of law at Northwestern University of Law who focuses on
false confessions and convictions. He is understandably pleased at
the policy change:

Drizen said the FBI has obtained a number of false convictions
in homicide cases, particularly on Indian reservations, because
suspect interviews were not recorded. Drizin also noted that, in
some recent trials, jurors have acquitted defendants because they
mistrusted FBI testimony about interrogations that could have been
recorded.

Not unlike the trend of
putting cameras on police, recording the interrogations could
keep both sides honest. Not only are suspects protected from the
FBI misrepresenting what they’ve said, the FBI agents are also
protected from these same accusations—assuming the accusations
aren’t true, that is.