Historically, the problem with the Federal Bureau of Investigation has not been one of leadership but of culture. Directors come and go; the culture remains. That culture is one of “us versus them,” very insular, functioning under its own unwritten rules. There are periodic calls for reform, but these are Band-Aids covering a serious gunshot wound. As an experienced criminal defense lawyer, I’ve concluded that the FBI must be abolished and its duties assigned to a new agency.
Consider an example from my own law practice.
Some years ago, I represented a client who the Boston FBI office believed had information about a federal crime. The FBI asked if I would make my client available for an interview. I said that my client would agree, provided it were held in my office. The agents showed up where my client and I were sitting around a table in the conference room. The agents sat down. One pulled out his pad and pen to take notes.
The FBI has always had a policy requiring that all consequential interviews be conducted by two agents — one to ask questions, the other to take notes. Then the agents return to headquarters, where the notes are typed up. The report is known as a Form 302, and it is the official record of the interview.
The interviewees are thus placed between the proverbial rock and a hard place. If they testify, they must stick to the FBI’s version. If they deviate from the Form 302, they can be charged with having lied to the agent or, at trial, of committing perjury. Hence, there is enormous pressure on witnesses to testify not as they remember a situation, but rather in accord with the Form 302.
As a result, I’ve developed a policy of never allowing a client to be interviewed without my recording it. The agents would tell me that I’m not allowed to record the interview. I replied that I have my own policy. The agents then would leave.
There are ways of partially ameliorating this problem, but this is known only to seasoned criminal lawyers and is hardly satisfactory. Lawyers, in addition to taking notes, may have a court stenographer present who produces a transcript. In court, however, the stenographer routinely records the proceedings, so that if any question arises as to the accuracy of the transcript, the stenographer can check the transcript against the recording. Thus, it is the recording that is the final authority.
Furthermore, without an accurate record, not only can witnesses be placed in a position where they succumb to an agent’s version, but the practice can lead to corruption because the agent has obtained significant leverage over the interviewee. (And FBI agents are not immune from corruption — the case of FBI Special Agent John Connolly and James “Whitey” Bulger comes to mind.)
The non-recordation policy has survived from administration to administration, and from FBI director to FBI director. At one point, Congress held hearings into the practice, and the FBI director at the time, Robert Mueller (who earlier served in the Boston US attorney’s office), assured the committee that the practice was necessary. I am not aware of any later instance when Congress questioned this procedure.
This is particularly relevant now. We’ve recently seen the exoneration of Muhammad Aziz and Khalil Islam (who died in 2009) in the murder of Malcolm X. (The third defendant charged was Mujahid Abdul Halim, who confessed and was paroled in 2010.) According to the Manhattan district attorney and the National Innocence Project, the FBI played a role in obtaining the wrongful convictions. Under Hoover’s leadership, the FBI had in its files documents that, if disclosed, would have exonerated the defendants. Indeed, Aziz and Islam would never have been charged.
This kind of corruption involves molding, and often rewriting, the truth. This culture is too deeply embedded for effective reform. The best solution is to abolish the FBI and start anew. We need to rethink the kind of agency needed to investigate federal crimes.
This proposed solution comes from someone correctly classified as libertarian-liberal. However, some conservatives have come to the same conclusion. Wall Street Journal columnist Holman W. Jenkins Jr. wrote a piece in September headlined “Abolish the FBI.” His thesis was that in recent decades the bureau has not covered itself with distinction. Jenkins discussed such scandals as the infamous “Steele dossier” used against Donald Trump in his 2016 presidential run against Hillary Clinton. He noted FBI shenanigans, such as then-director James Comey intervening in the Hillary Clinton e-mail scandal and potentially influencing the results of the election. Jenkins then asked the question: “In what way, in anyone’s memory, has the FBI covered itself in glory?” After citing more examples, he ended with this: “The culture at the top seems incapable of using the powers entrusted to it with discretion and good judgment… The agency should be scrapped and something new built to replace it.”
Amen to that.
Harvey Silverglate is a Boston-based criminal defense and civil liberties lawyer.