Privacy SOS

New policy on FBI recordngs likely won’t affect Muslims and dissidents

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The Department of Justice has announced a shift in long-standing policy governing the conduct of federal agents and prosecutors interviewing criminal suspects. In a partial reversal, starting in July 2014 when the new policy is implemented, the DOJ will "presume" its agents and attorneys will videotape interviews with people in custody under suspicion of involvement in federal crimes. The policy states that recording may be overt or covert, meaning that the FBI doesn’t have to inform suspects that their statements are being videotaped. There are also significant loopholes, for things like "national security" investigations, which agents will not be presumed to record. Likewise, the presumption will not apply to non-custodial interrogations.

The move, first disclosed by the Arizona Republic newspaper, was hailed as a huge victory by former FBI agents and civil rights attorneys who had long criticized a DOJ policy that barred accurate recordings of interviews, absent supervisory approval. For decades, the FBI has shunned the use of audio and video recordings during interviews and interrogations, enabling agents to misrepresent someone’s testimony and then "put people in a vice" by threatening to charge them with lying to federal officials, in the words of renowned civil rights attorney Harvey Silverglate.

Instead of creating an accurate record of an interrogation, FBI agents—who interview in pairs—compile their notes from interviews into a form called a 302. Once the form is completed, the 302 becomes the only official record of the interrogation. This allows FBI agents to craft careful narratives in the 302s, and to later use the threat of a "false statements" charge to coerce people into doing the FBI's bidding.

Making false statements to an employee of the federal government is a federal crime punishable by years in federal prison. If the subject of an interview contests the accuracy of anything ascribed to them in the 302, the FBI can claim that the person is or was lying, and threaten them with a false statements charge. After all, since the 302 is the official record of the conversation, a subject who contests any part of it was either lying during the interview, or is lying when they contest the accuracy of the 302. That’s the vice Silverglate describes, and it’s a very effective means of coercing people into becoming informants for the Bureau.

The policy change made public this week is a step in the right direction. But it does not solve the problem of the 302 "vice" because it contains a number of large loopholes, and likely won’t affect the majority of FBI interrogations. For one thing, the presumption that agents will record only applies to custodial interrogations, when the FBI has a criminal suspect in custody at a police station or field office. The policy spells that out clearly: "Interviews in non-custodial settings are excluded from the presumption [to record]."

That's an exception large enough to swallow most of the new rule, in large part because of what the FBI actually does with its powers. Since 9/11, the FBI has moved away from doing criminal investigations and now focuses the majority of its resources and staffing on so-called "national security" and counterintelligence related issues. Often interrogations related to "national security" never result in testimony used directly in federal criminal trials. In those cases, the FBI will likely continue to refuse accurate recordings of its interrogations so that it may coerce people into becoming informants, or because the interrogation is meant to intimidate a group of people—say, environmental activists—instead of serve as the basis for a criminal investigation.

While the policy appears to do away with the prior requirement that agents obtain supervisory approval before recording non-custodial interviews, it leaves the choice of whether to record up to the agents and prosecutors involved. That means when the FBI wants to coerce someone into becoming an informant, as it does with Muslims throughout the world, it will probably not record the interview. Similarly, if I’m an FBI agent and I want to interrogate some anti-war activists about their political beliefs and associations, I likely won’t want to record that interrogation, and the new policy gives me the leeway not to.

In other words, the new policy won’t change and doesn’t address the recording of the most problematic of FBI interviews: those related to political or religious harassment.

The new policy also allows agents to refuse to record interviews even in custodial settings, if "national security" or the public safety exemption to Miranda rules are invoked. That means under the new policy, the FBI would not have been required to videotape its more than 36-hour, pre-Miranda interrogation of Boston bombing suspect Dzhokhar Tsarnaev. That interrogation occurred before Tsarnaev had been read his rights and granted access to his attorneys, who were trying to reach him in hospital but were blocked by the Bureau.

Finally, the new policy wouldn’t be a policy related to law enforcement in the United States if it didn't contain a glaring exemption that swallows the rule entirely. The final exemption states that "the presumption in favor of recording may be overcome where the Special Agent in Charge and the United States Attorney, or their designees, agree that a significant and articulable law enforcement purpose requires setting it aside." If the FBI doesn't want to record a custodial interview pertaining to a routine criminal matter, in other words, it doesn't have to, even under the new guidelines.

When examined closely, it's clear that while the revised policy is a shift in the right direction, it doesn’t go nearly far enough. The FBI will still be able to do what Harvey Silverglate spells out in the video above; its shady 302 process of putting people in a vice remains basically untouched. Since there is a massive loophole for "national security" related investigations and the new policy doesn't apply unless you've been arrested, if you’re Muslim or a dissident, the new rules likely don’t apply to you.

Therefore when the policy takes effect in July, if the FBI comes to your door you should take the same precautions you took before. Ask for the agents’ business cards, and politely inform them that your lawyer will call them back. Do not speak to them without your attorney present. If they arrange a meeting and your attorney puts a recording device on the table and says, “Ok, let’s begin,” the FBI agents will, like before, probably politely decline to speak on the record and leave you alone.

Just like today, when the new policy takes effect in July a recording device and a competent attorney may be your best defense against FBI entrapment. Same as it ever was.

© 2021 ACLU of Massachusetts.