The FBI is increasingly coming under fire for its long-standing policy of prohibiting agents from electronically recording interviews or confessions unless a Special Agent in Charge approves.
And despite a review by the Attorney General’s Advisory Committee, a group that is intended to give voice to US Attorneys in formulating DOJ policies and to advise the Attorney General, nothing appears to be changing.
The FBI defends the policy as one which maintains the quality of interviews and investigations, and a review of the policy by the advisory committee has not yet resulted in any changes.
But critics, a group that include many lawyers, prosecutors and judges, say the policy is drastically outdated and one which hundreds of state, local and even other federal law enforcement agencies have abandoned.
“Recording interviews is great for law enforcement, for judges and for prosecutors,” said Thomas Sullivan, a former U.S. Attorney in Chicago and a current partner at Jenner & Block LLP who has written about police interrogations. Sullivan said an FBI agent defending the bureau’s current pencil and paper policy was the equivalent of someone saying: “My horse and buggy are just fine.”
The FBI is not budging on the issue, maintaining that electronic recording of interviews can be detrimental to law enforcement efforts, and that its policy does allow for recordings if they are needed.
FBI spokesman Bill Carter said that while it is sound practice to record interviews when agents and suspects feel comfortable talking on a recording, doing so in all cases carries risks.
“Precipitously recording could inhibit full and frank discussion and prove unduly burdensome to fast-breaking cases,” Carter said, echoing the opposition to the policy change that FBI Director Robert Mueller III expressed at a Senate hearing in 2007.
Main Justice reported in April 2010 that the Attorney General’s Advisory Committee was reviewing the policy. But that review appears to be going nowhere fast.
No recommendations have been announced. Sullivan said he sent the AGAC a letter last June urging them to update the policy, but received no reply. Four U.S. Attorneys on the Committee declined to comment on the review, saying they could not discuss internal Committee processes.
Sullivan said the resistance to change is a “foolish adherence to the past” and a “ridiculous, stubborn, institutional reaction.” He added that a defense of the policy offered previously by FBI General Counsel Valerie Caproni—that certain bureau interrogation tactics would not come across well with juries and thus should not be recorded—almost amounted to an endorsement of perjury, because it implied that agents should leave out parts of interviews and therefore not tell the “whole truth” in court.
In response, Carter would say only that Caproni’s words speak for themselves.
Still, even if the AGAC were to recommend a reform, it does not have the power to actually change FBI policy, though its recommendations do reflect the policy preferences of the nation’s U.S. Attorneys.
While change appears stalled at the top levels of the Justice Department, many law enforcement agencies other than the FBI have been changing their interview policies. In the federal government, the Naval Criminal Investigative Service, the Air Force Office of Special Investigations and the Defense Department as a whole mandate that investigators record interviews in at least some cases. Change has been even more rapid at the state and local level, where 11 states and the District of Columbia have made recording of police interviews the rule, rather than the exception.
In Illinois, it was then-state senator Barack Obama who pushed successfully in 2003 to require that police interviews in most homicide cases be recorded.
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