Those concerned with the survival of American civil liberties during the post-9/11 (and now post-Boston Marathon) “age of terror” most commonly fear the federal government’s technical ability to record and store virtually all telephonic and electronic communications. But a more immediate threat to liberty lies in what one particular agency, the Federal Bureau of Investigation, refuses to record, as Robel Phillipos is now learning the hard way.
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.
Phillipos underwent four FBI interviews. He is not alleged to have had any advance knowledge of, much less role in, the bombing itself. The FBI was apparently trying to obtain his information and cooperation concerning the role and knowledge of Dias Kadyrbayev and Azamat Tazhayakov, the two Kazakh students who allegedly found and disposed of Tsarnaev’s backpack and laptop after he was named a suspect in the bombings.
The public and the media should withhold judgment not only as to what Phillipos did or did not do, but also as to what he did or did not say when questioned by FBI agents. Indeed, the public should look skeptically at the accuracy of any FBI claim regarding what transpires in the bureau’s infamous witness interviews. Here’s why.
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.
In 2006 the FBI defended its no-electronic-recording policy in an internal memorandum, which The New York Times later made public. The memo in part attempts to defend the policy as logistically necessary, but given that virtually every cellphone today has sound recording capabilities, any “inconvenience” or “non-availability” excuse for not recording seems laughably weak. 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.
But the FBI leaves out the even more potent criticism of its practice — that such interview tactics seem virtually geared toward establishing as fact what the FBI wanted to hear from the witness. Frightened and confused interviewees, who, if they deny they said what any 302 report claims they uttered, can then be indicted for making false statements. The FBI is thus able to put words into a witness or suspect’s mouth and coerce him to adopt the FBI’s version as his own. The FBI thus establishes the official version of what a witness said, and the pressure on the witness to adhere to the 302 version is enormous. Any deviation, after all, raises the question: “Were you lying during your FBI interview, or are you lying now?”
Unlike the federal government, many states understand that unrecorded testimony must be viewed with skepticism in a fair judicial process. In Massachusetts, the Supreme Judicial Court requires that a custodial interview be electronically recorded whenever possible. For unrecorded testimony to be admitted at trial, a judge must instruct the jury to be wary of police claims as to what the interviewee did and did not say.
The lesson: As long as the FBI relies solely on its agents’ uncorroborated reports of such interviews, it is difficult to credit the bureau’s version of what was and was not said. Presumably, much more is going to emerge concerning what Phillipos really told his interrogators, and nobody should arrive at any conclusions until all of the evidence, from both sides, has been made public. The FBI is not entitled to any presumption of credibility in these situations.
Harvey Silverglate, a criminal and civil liberties lawyer, is author of “Three Felonies a Day: How the Feds Target the Innocent.”