Why The FBI's New Interview Recording Policy Probably Won't Change Anything

from the the-loophole-is-a-superhighway dept

Thu, Jun 19th 2014 2:05pm — Tim Cushing

As was noted here earlier, the FBI took a bold step in towards joining the 21st century by finally implementing audio and video recording hardware introduced in the 20th century. Up until this point, the FBI, along with the DEA and ICE, did not record in-custody interrogations using anything more up-to-date than pen-and-paper. This rendered recollections of interrogations completely suspect, prone to pen-wielder bias and the insertion and removal of context as needed, presumably in order to help secure more convictions for the FBI's ~~entrapment~~ counterterrorism task force.

And, as was also noted, the DOJ's new instructions provided plenty of escape hatches for agents who wished their interrogations to remain as analog as possible. Unrecorded interrogations can still be performed in the event that desirable recording equipment (i.e., a cellphone) isn't available or if the equipment available isn't functioning (batteries missing/unplugged/inadvertently smashed to pieces…).

But there are other loopholes awaiting exploitation. Stephen Shulhofer at Just Security highlights out the gaping, convenient memory hole contained in the DOJ's memo.

First, there's the "public safety" exception, which can be triggered when exigent circumstances make unrecorded and (un-Mirandized) interrogations a necessity. These would be questionings normally done in the first few moments of an arrest. But with everyone carrying around a recording device, that exception no longer makes much sense. You no longer have to take a suspect "downtown" in order to record a questioning. The inclusion of this loophole is likely borrowed from pre-existing language, but all it does is create reasons not to record.

[S]ince recording is no longer impracticable, why wouldn't a responsible law enforcement agency want to preserve an unambiguous record? Unlike a public safety exception to Miranda, a public safety exception to recording seems to serve no purpose other than that of affording a loophole that can be exploited for illicit purposes.

The other loophole is much, much larger. It's predicated on the same rationale that has allowed the Constitution to be selectively scrapped over the past dozen years.

The same point applies with even greater force to the exceptions for “national security” and “intelligence, sources, or methods.” If recording is feasible (and that is the only condition in which the recording policy applies), national security and counterterrorism officials can only gain by having an unambiguous record of precisely what a suspect was asked and precisely how he or she answered. Indeed, an official who deliberately chose not to make and preserve a clear record of a national security interrogation would display less dedication than incompetence.

As Schulhofer points out, this exception plays right into the mindset of the FBI, which has refashioned itself into the nation's largest counterterrorism force (putting law enforcement on the back burner). This also plays right into every law enforcement and intelligence agency's fetishization of "intelligence, sources or methods." This is what's conjured up to justify refusals of FOIA requests and to keep new surveillance methods out of the public eye for as long as possible. It's what's used to deny access to returned warrants on closed cases. But for the FBI, it's also a reason to never record anything, just in case. The FBI's intertwined relationship with the NSA -- combined with the last year of leaked documents -- will make any agent extremely wary about leaving behind undisputed records of intelligence-related interviews. But all this will do is make these agencies even more insular and untrustworthy than they already are.

No national security establishment can possibly operate effectively on the basis of unwritten knowledge and word of mouth. If our government has reacted to the Snowden affair by developing an aversion to writing anything down, we are in deep trouble.

"Deep trouble" is where we're headed, if we're not there already. The DOJ has given the FBI, DEA and ICE huge exceptions to the recording policy -- which, it must be noted, aren't actually commands but a "presumptions" -- ones that are particularly prone to exploitation. Over the past decade, we've seen the government exploit the fear of "the next 9/11" to expand power and contract civil liberties. Government agents may now have to act under the "presumption" that custodial interviews will be recorded, but the DOJ has given them a handy list of excuses to use when these recordings fail to happen.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: dea, doj, fbi, ice, interrogations, interviews, national security, recording

25 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

That One Guy (profile), 19 Jun 2014 @ 2:16pm

It shouldn't need to be said but...
People should never answer more than the most basic questions(name, age, place of residence, stuff like that) when being interrogated, just demand to speak to your lawyer and then shut up.

Talking can not help you, but it can most certainly harm you, and that's even more true with agencies who are seeing 'terrorists' under every rock, and would love to 'find' one based upon some stupid, harmless comment made by someone they're interrogating.

Add to that the fact that no recordings means if they claim you said something you didn't, even if it's just down to faulty memory on their part, it's your word versus theirs(and take a wild guess which side the judge/jury will always believe), and the only smart move is to sit down, shut up, and answer only in a court and through a lawyer.

And for those that thing the above is paranoia, I invite you to watch the following video. It's fairly long(just under 49 minutes), but it's a presentation done by a law school professor, followed up by a former cop training to be a lawyer, and both of them agree that talking during interrogation is a bad idea.

http://www.youtube.com/watch?v=6wXkI4t7nuc
[ link to this | view in thread ]
Anonymous Coward, 19 Jun 2014 @ 2:54pm

And the relevant Popehat link...
http://www.popehat.com/tag/shut-up/
[ link to this | view in thread ]
John Fenderson (profile), 19 Jun 2014 @ 3:01pm

Re: It shouldn't need to be said but...
"People should never answer more than the most basic questions(name, age, place of residence, stuff like that)"

You're a bit more permissive than I. My stance is that I only supply the information that I'm legally required to supply -- which boils down, in most cases, to just establishing my identity. Technically, I don't even have to do that much -- but if I don't then the cops have the right to put me in a jail cell (not arrested, merely "detained") while they try to figure out who I am on their own.
[ link to this | view in thread ]
Padpaw (profile), 19 Jun 2014 @ 3:04pm

Re: It shouldn't need to be said but...
Bad news for you on that front. "The Supreme Court Decided Your Silence Can Be Used Against You". here is a link

http://www.thewire.com/politics/2013/06/supreme-court-salinas-v-texas-ruling-explained/66309/
[ link to this | view in thread ]
That One Guy (profile), 19 Jun 2014 @ 3:14pm

Re: Re: It shouldn't need to be said but...
Almost. According to that atrocious ruling, to gain legal protections, you have to specifically say that you're invoking your Fifth Amendment rights, you can't just 'imply' it by staying silent.
[ link to this | view in thread ]
That One Guy (profile), 19 Jun 2014 @ 3:15pm

Re: Re: It shouldn't need to be said but...
That was what I meant, give them just enough information to identify you, and nothing beyond that.
[ link to this | view in thread ]
zip, 19 Jun 2014 @ 3:18pm

Re: It shouldn't need to be said but...
But then there is the standard question "do you have any weapons?" (whatever it is that legally constitutes a "weapon")

So how do you respond?

A.) Say 'yes', and get clobbered.
B.) Say 'no', and get charged with Lying.
C.) Say nothing, and get the question repeatedly screamed at you -- before treating it as a "yes" answer (& on to choice 'A').

Or should you just start itemizing (from memory) everything in your pockets, purse, briefcase, etc. -- and let the 'professionals' decide if any of them constitute a "weapon"?

I know this whole thing seems a bit silly, but I've had ordinary nail clippers confiscated when I tried to get on a plane (fortunately I was not arrested for the 'crime' of carrying them). So nail clippers were apparently considered lethal weapons (if not a 'weapon of mass destruction' in that circumstance) a dozen years ago.
[ link to this | view in thread ]
John Fenderson (profile), 19 Jun 2014 @ 3:18pm

Re: Re: Re: It shouldn't need to be said but...
Yes, and also if the suspect in that case had followed the advice to not say a word without his attorney, he wouldn't have had a problem. What tripped him up was that he was speaking with the cops right up until they asked him a sensitive question -- then he fell silent.
[ link to this | view in thread ]
John Fenderson (profile), 19 Jun 2014 @ 3:20pm

Re: Re: It shouldn't need to be said but...
If you aren't, then I don't see an issue with saying so. Or with remaining silent. They're going to search you either way, so asking the question is just playing mind-games. If you get beaten for remaining silent, well... they were going to beat you anyway, so you haven't lost anything.
[ link to this | view in thread ]
That One Guy (profile), 19 Jun 2014 @ 3:31pm

Re: Re: It shouldn't need to be said but...
Not a lawyer, so take this with a grain of salt, but the 'Do you have any weapons on your person?' question is probably one of the very few(the other being providing your name) you should answer, because if you get arrested they're likely going to pat you down and/or search you, and if you refused to answer that(or worse, lie), and they find something, they're likely to assume, and potentially charge you for, 'attempting to conceal a deadly weapon from an officer'(or whatever the charge would be called).

If you're not sure, ask for clarification, rather than risk being charged with lying if something you're carrying turns out to be considered a 'weapon'.
[ link to this | view in thread ]
Whoever, 19 Jun 2014 @ 4:19pm

Re: Re: Re: It shouldn't need to be said but...
.... but the 'Do you have any weapons on your person?' question is probably one of the very few(the other being providing your name) you should answer, because if you get arrested they're likely going to pat you down and/or search you, and if you refused to answer that(or worse, lie),

But what is a weapon? Answering no could open you up to being charged for lying to investigators, depending on the definition of "weapon". If people can kill using a pen, does that make one a weapon? You are going to get searched anyway (irrespective of how you answer) , probably best to invoke your 5th amendment right and let them search you.
[ link to this | view in thread ]
Whoever, 19 Jun 2014 @ 4:27pm

National scandal.
It's a national scandal that interviews are not recorded. In the UK, interviews have been recorded for decades now, on equipment that records simultaneously on on 2 tapes, one for investigators, one for the defendant.

Furthermore, the interrogation technique most commonly used in the USA has been shown to get a high number of false confessions.

Basically, in the USA, unless you have money, once you are arrested, you are screwed.
[ link to this | view in thread ]
That One Guy (profile), 19 Jun 2014 @ 4:29pm

Re: Re: Re: Re: It shouldn't need to be said but...
Hence the 'ask for clarification' bit.

If you're going to be searched, they will be finding out what you have on you, and remaining silent to 'Do you have any weapons on you?' is likely to cause them to assume the answer is 'Yes', that you're trying to hide the fact, and will cause them act accordingly(which is likely to lead to you eating asphalt).
[ link to this | view in thread ]
That One Guy (profile), 19 Jun 2014 @ 4:35pm

Re: National scandal.
Not sure how it is in the UK, but in the US police and others are also completely free to lie to the people they are interrogating(lying to the police or investigators though is a crime, because double-standards and reasons), which I don't imagine would go over too well with a jury, adding an additional reason they wouldn't want it recorded.

Of course, at the same time, in the UK refusing to hand over the encryption key or password to an account or device can also be used against you, so the US doesn't exactly have the monopoly on abusive practices or laws when it comes to interrogations.
[ link to this | view in thread ]
Anonymous Coward, 19 Jun 2014 @ 6:31pm

Re: Re: Re: It shouldn't need to be said but...
Well the judge can shove that ruling up his fancy ass. The Bill of Rights and the Constitution do not require one to invoke its protections.
[ link to this | view in thread ]
Anonymous Coward, 19 Jun 2014 @ 6:46pm

It will change one thing. When a judge or jury asks "Why isn't there a recording of this conversation?" they can no longer simply reply "That would be against department policy." Now they'll actually have to come up with excuses.

Sure they've been handed a laundry list of them, but just needing to pick one is more problematic than being able to go "No, he totally said this, it's right here in my notes."

Some of the excuses almost have to be planned for ahead of time. Some of them have situations that just won't be plausible. And none of them are as good as the excuse they had before.

Beyond that one thing, over time as agents actually make use of recording to their benefit, not having a recording will start to look worse and worse. Claiming technical problems will start to make them look incompetent at best. Over time the viable excuses will diminish until they are are largely limited to trying to claim �national security� and �intelligence, sources, or methods.�

So it's certainly a nice start. It may take a while to go somewhere, but it's a good first kick to the door.
[ link to this | view in thread ]
vancedecker (profile), 19 Jun 2014 @ 11:11pm

Google Glass!
See. It doesn't matter that bars and clubs are banning the glasholes.

Law enforcement will provide a great market.
[ link to this | view in thread ]
Coyne Tibbets (profile), 19 Jun 2014 @ 11:49pm

Lose the tape
Don't know that it matters even if they do record it. If they need to go by recollection, they'll just lose the tape.

Accidentally, of course: It's always an accident when the government loses the tape/video/paper/email.
[ link to this | view in thread ]
That One Guy (profile), 20 Jun 2014 @ 1:01am

Re: Lose the tape
Honestly at this point I'm not sure why they even bother coming up with reasonable excuses, so many judges seem completely spineless when dealing with government agencies that they could at least have some fun with it.

Perhaps try 'My dog ate it' and see how long they can keep from laughing at the judge after saying it?
[ link to this | view in thread ]
Anonymous Coward, 20 Jun 2014 @ 3:47am

Remember, citizens need to explicitly state out loud that they're invoking their fifth amendment right to remain silent. Otherwise your silence can and will be used against you in a court of law as a sign of guilt.

"One of the more recent blows to these rights came from a court decision in Salinas v. Texas, in which the court ruled that simply remaining silent is not the same as invoking your right to remain silent, and as such, can be used (under specific circumstances) as evidence of guilt."

https://www.techdirt.com/articles/20130827/09282724323/not-content-with-gutting-fourth-amendm ent-government-continues-its-attack-fifth-sixth.shtml
[ link to this | view in thread ]
Anonymous Coward, 20 Jun 2014 @ 6:57am

Worth noting
The reason they implemented this policy was because juries weren't believing the paper records. So they have at least some motivation to create viable recordings. It's nice to know we've reached a era where "pics or it didn't happen" applies even to the FBI.
[ link to this | view in thread ]
G Thompson (profile), 21 Jun 2014 @ 2:57am

Re: National scandal.
This is the same in most democratic countries around the world, here in Australia any interview MUST be triple recorded both via audio and video with a digital copy of audio recording being given to defendant on CD (it used to be cassette before digital).

The 2nd copy is held by prosecution and the third is sent off to be created into a paper transcript by an authorised unbiased body. The transcript is handed to defendant if it goes to court as part of the facts of the case.

Though Police also hold notes of other statements that might of been stated, they now carry little weight under the law unless they are said in a formal interview. In fact most crimes nowadays need physical evidence that is not solely reliant on police testimony.

This protects all parties though the advise to defendants by any competent solicitor is NOT to give any statement/interview unless they are present. ie: Shut up! if in doubt of what that means SHUT UP!
[ link to this | view in thread ]
G Thompson (profile), 21 Jun 2014 @ 3:01am

Re: Re: National scandal.
Oh and that digital recording given to defendant is given at the instance of recording, it is placed into their property if they are charged and refused bail or handed to them after the interview if they are either not charged (awaiting investigation or no charge ever to be done) or placed on bail awaiting court attendance.
[ link to this | view in thread ]
Anonymous Coward, 21 Jun 2014 @ 3:50am

Re: Re: It shouldn't need to be said but...
Unless you have a firearm or a very large knife, always (B) No!

Then stick to your guns no matter what, by way of lawyer if necessary. At no time have you ever considered the pocketknife in your pocket a "weapon." I use this car for transportation, it is not a "weapon." I use this pen to record police encounters, it is not a "weapon."

Left up to them, everyone they encounter, male and female, is carrying a weapon such as: Pointed finger, cookie missing a bite, a drawing, iPhone etc...
[ link to this | view in thread ]
Trenton, 31 Jul 2014 @ 11:25am

Re: Re: It shouldn't need to be said but...
D) I'm invoking my fifth amendment right and I will not answer any questions. I do not consent to searches.
[ link to this | view in thread ]