Your Word Against Ours: How The FBI's 'No Electronic Recording' Policy Rigs The Game… And Destroys Its Credibility

from the everybody-knows-the-dice-are-loaded dept

Considering the FBI’s unseemly interest in recording phone calls and inserting itself into all sorts of electronic conversations (all without asking permission first), it’s incredibly strange that it refuses to use one of the most basic electronic devices available: a voice recorder. In fact, as Harvey Silverglate’s op-ed for the Boston Globe points out, it’s forbidden to use any sort of recording device when interviewing suspects.

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.

Without a recording to compare the transcript to, we are expected to trust the FBI’s version of the interrogation. If we can’t trust it, we are left to draw one of the following conclusions.

1. The transcript is completely false.
2. The transcript is heavily editorialized.
3. The transcript interprets certain statements, but is otherwise accurate.
4. The transcript is completely accurate.

Of all of these choices, number 4 seem least likely. In fact, one wonders why the FBI bothers interviewing anyone when it could simply put two agents in a room and allow them to bang out a confession on behalf of the accused.

If a suspect claims the transcription is erroneous, it’s his word against theirs. His words, of course, disappeared into the ether as soon as they were spoken. The FBI’s version lives on, printed on paper.

We don’t need to ask “why” this is a problem. There are rhetorical questions and then there are stupid questions, the sort helpful teachers and guidance counselors continue to pretend don’t exist. A better question is, “Why hasn’t this been changed?” Silverglate notes this policy is an updated version of a 1990’s policy, crafted in 2006, long long long long after recording devices were ubiquitous. The excuse that this policy was “logistically necessary” because of technological limitations was ridiculous in 1990, much less 16 years later.

This is a problem. More specifically, this is Robel Phillipos’ problem.

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.

How do we know he did this? Because the FBI says he did. It has the “paperwork” to “prove” it. As was pointed out above, simply questioning the transcript opens the questioner up for charges of “making false statements.” Phillipos could be completely innocent but that means nothing when the accusers are writing the narrative. Scott Greenfield shows just how easily an innocent answer could turn into damning “evidence” in the hands of an FBI interrogation team.

Q: We found files on your computer showing that you went to a website with instructions on how to make a bomb, so we know you did it. When did you first go to the bomb website?

A: I surf the web constantly and go through, like, a million pages. I have no idea what pages I searched or when. How could I possibly know?

Notated in 302: D cannot recall when he first went to bomb website. Went “constantly.”

Slick, isn’t it? And when someone points out a misquote, the accusation is turned on them just as easily. “Are you lying now or were you lying earlier?”

This is nasty business but it gets even nastier. Beyond the hilarious claim that tech simply hasn’t advanced enough since 1990 to allow reliable voice recording, there’s a much darker rationale guiding this ridiculous (and dangerous) policy.

The more honest — and more terrifying — justification for non-recording given in the memo reads as follows: “. . . perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants. Initial resistance may be interpreted as involuntariness and misleading a defendant as to the quality of the evidence against him may appear to be unfair deceit.” Translated from bureaucratese: When viewed in the light of day, recorded witness statements could appear to a reasonable jury of laypersons to have been coercively or misleadingly obtained.

Sometimes the “reasonable jury” would be right — the statement has been “coercively or misleadingly obtained.” Other times, it may not be as clear-cut. But in a day and age where recording interviews and interrogations is the expectation, the FBI continues to play by its own (convenient) rules. And if the person being interrogated doesn’t like it, he can expect additional charges to brought. This puts the alleged criminal in the unenviable position of having “anything he says” twisted, rewritten and heavily paraphrased before being used against him.

Silverglate cautions to withhold judgement on Phillipos until all the facts are in. But as long as the FBI continues to use this “recording” technique, don’t grant its statements any credibility. They have none.

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Comments on “Your Word Against Ours: How The FBI's 'No Electronic Recording' Policy Rigs The Game… And Destroys Its Credibility”

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45 Comments
Anonymous Coward says:

Illinois state had an unusually high number (compared to other states) of people convicted murder later being freed by DNA proving their innocence when the technology was invented and put into common use.

Know what their state legislature did to rectify the problem? They required ALL police interrogations be recorded, because of how useful of such videos have proven to be at both getting incriminating evidence against the real criminal, and at proving innocence of the falsely accused (including those bullied into false confessions by police).

The Illinois police even supported the changes, the FBI could learn something from them.

DeltaDiggaDo says:

Re: well golly gee

Isn’t this EXACTLY why you don’t answer questions without your lawyer being present?

The trouble is, how many of us “have a lawyer”? If I get grabbed on the street, I’m gonna have to ask for the yellow pages to find a lawyer. I haven’t used a lawyer since… never, and I’m retired now. And I don’t know if I can afford him.

Spaceman Spiff (profile) says:

Never leave home without one!

Never go into a police, FBI, or other “law enforcement” interview without your attorney present. Always assert your 5th Amendment rights and don’t say ANYTHING unless your attorney tells you to, and don’t even then if you can help it. These asshats can be incredibly intimidating, and infer that if you don’t talk to them you will spend a gazillion years in stir. The thing is, is that they will take everything you say out of context, add their own spin, and then get you convicted and put away for a gazillion years for something you DIDN’T actually say! So, being questioned by law enforcement? SAY NOTHING! ASK FOR AN ATTORNEY (your own if you have one)! REFUSE TO ANSWER ANY QUESTIONS!

Anonymous Coward says:

Asserting the Fifth

?Argument recap: Reading silence?s meaning? by Lyle Denniston, SCOTUSblog, April 17th, 2013

?.?.?. ?Where is the line?? Justice Stephen G. Breyer kept asking, and when he was offered one by Genovevo Salinas?s attorney, it was not clear that there would be a majority to embrace it.?.?.?.

No. This is not satire.

This is Salinas v Texas.

Issue: Whether or under what circumstances the Fifth Amendment?s Self-Incrimination Clause protects a defendant?s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.

Argued April 17, 2013. Opinion pending.

Anonymous Coward says:

Re: Re: Recording

it actually doesn’t matter if they do- any competent lawyer would file a motion for discovery for the recordings. Those recordings having been destroyed would raise eyebrows, to say the least. ( on two fronts: they are allegedly evidence, and they aren’t the police’s to destroy)

art guerrilla (profile) says:

Re: Re: Re: Recording

s-u-r-e it is…

now, would you mind telling WHEN/WHERE kops, persecutors (sic), or other -you know- officers of the court are ACTUALLY, ever prosecuted for ‘lying’ ? ? ?

(short answer: practically, relatively speaking, NO ONE, ever…)

now, tell me the times mere, puny citizens have been persecuted for mere lying of no consequence and put in the gaol ? ? ?

ALL THE FUCKING TIME…

yes, it IS lop-sided, at EVERY stage of The System; it is MEANT to be lop-sided, NOT as some sort of checks and balances, BUT AS A MEANS TO SUBJUGATE US 99%…

if you are poor and/or brown, The System will chew you up and shit you out, over NOTHING; if you are the annointed ones, you can loot the world’s economy, commit war krimes, torture, illegally wiretap, collude, and essentially break any/all laws with impunity…

THAT is the upside-down world we live in now…
(because korporations are people, doncha know…)

REMEMBER: power NEVER devolves voluntarily, NEVER !

art guerrilla
aka ann archy
eof

Mr. Applegate says:

Once again Government shows its...

Incompetence!

“The excuse that this policy was “logistically necessary” because of technological limitations was ridiculous in 1990, much less 16 years later. “

What the government can’t figure out to do, Insurance companies, help desks and many others around the world figured out how to do about 30 years ago.

That’s right, if you are in an accident the insurance company will want to take a RECORDED statement. Almost any help desk will record at least random calls and many record them all.

Also it is funny that they can’t figure out the logisitcs to tape your interrogation, but they have no problems figuring out how to tap your phone, track your car, put of cell towers to process all your cell phone activity…

Just a bit selective I should think.

Anonymous Coward says:

i dont know why there is any problem of the FBI using recording devices at all. they can alter, omit and rearrange the taps to read exactly as they want. just as they can and probably do with the written words. either way, once a person has the FBI or any other law enforcement agencies hooks into them, there is no escape. they will be ‘proved’ guilty even if there is unequivocal evidence showing that person was on Mars at the time with 2 million witnesses. the sad thing is that justice and the law seems to have so little meaning in the USA now. i am waiting for the ducking stool to be brought back as a means of testing whether a person is telling the truth or not!!

horse with no name says:

What's wrong

Stories like this go a long way to explain what is wrong in society today: A lack of respect (in all directions) means that criminals tend to have more rights than the general public, and that it’s the police and authorities are being treated as “guilty until proven innocent”.

Claiming the system is stacked is crap, because plenty of guilty people go free every year, because of technicalities and exceptional circumstances. If the deck was stacked, those would have been “fixed” a long time ago.

Mr. Applegate says:

Re: What's wrong

“Claiming the system is stacked is crap, because plenty of guilty people go free every year, because of technicalities and exceptional circumstances. If the deck was stacked, those would have been “fixed” a long time ago.”

Using your logic if the deck wasn’t stacked no innocent people would ever be convicted, and that happens too.

The truth is there is absolutely zero reason not to video tape interviews. If the police have nothing to hide they wouldn’t mind me taping them yet they get really upset when they are taped.

It is very odd that those in power abhor being taped themselves while at the same time telling us that we shouldn’t mind being taped and otherwise surveilled if we have nothing to hide.

The truth of the matter is that we should not be taped by them and ALL of their actions should be recorded, they have the power to restrict my freedom.

Those with little power need littler surveillance or oversight, those with a lot of power need a great deal of oversight and surveillance.

Anonymous Coward says:

The FBI don’t want audio recordings because the sound of punching a suspect in the chest (in a way that won’t leave bruises) would also be recorded.

They don’t want video because they often have a 2nd or 3rd agent standing next to the ‘suspect’ making threatening gestures, standing over them with fists raised etc…..

Also video would show the bruising when the smaller punching is ineffective.
FBI standard policy after interviews is to take ‘damaged’ suspects into solitary confinement until the injuries have healed enough to not be visible anymore.

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