A Feint Toward Justice Is Truly A Giant Setback: AG Eric Holder’s Big Blunder

HolderAnyone who has read my book, Don’t Embarrass The Family, or some of my posts over the past year will know that I have criticized the FBI for some of the things that it continually does. In my book I made recommendations for changes in FBI procedures because I suggested the FBI had become an ossified outfit hiding behind the wall of “under investigation.”

The family in the title of my book is the FBI; I arrived at the title when I heard Frank Salemme testify that when he was a king (some of the heads of Mafia families considering themselves kings) he would tell the guys under him they could do anything they wanted as long as they did not embarrass the family; hearing that I realized the trial of FBI Agent John Connolly was all about him having embarrassed the FBI. Actually it was not Connolly who had embarrassed the Bureau, it was the Bureau itself with it Top Echelon Informant program, but to cover up it own idiocy in creating and running that program it hung Connolly out to dry.

The first recommendation I made for the FBI to become a truly modern police force in fact, not in hype, was that “all interviews between FBI agents and others be recorded and preserved.”

I suggested that because the procedure used by the FBI to have its agents interview people and then go back and write a 302 report spelling out what was said during the interview was out of date and ripe for fraud or misunderstanding. I pointed out how Judge Mark Wolf who broke the whole Whitey case open would not let the FBI interview him unless it agreed to let him see what the agents put in their 302 reports. I also noted that Congress required any interceptions made pursuant to Title III wiretap warrants be recorded; it did not let FBI agents listen to them and write out 302s. In fact, the FBI always considered the evidence of a person’s own words recorded on tape as the best evidence. Yet it persisted in refusing to record its agents interactions with others.

Finally I thought things may be changing a little. Attorney General Eric Holder has issued a letter on May 12, 2014, that is just being brought to light which is entitled Policy Concerning Electronic Recordings of Statements.

It starts by stating that “the policy establishes a presumption that the . . . FBI  [and others such as DEA, ATF, and US Marshalls]. . . will electronically record statements made by individuals in their custody . . . “ under circumstances set out. Unfortunately, the circumstances set out pretty much undermine the new policy making Holder’s actions much ado about nothing. .

First the person has to be in a building controlled by the investigative or law enforcement agencies; so you can expect most of the interviews will now be done in automobiles or out in the field or in someone’s home. Don’t the people who make these rules understand this?

Then it is filled with exceptions such as: the person refused to be recorded – something easily manufactured; or getting public safety information which makes the exception broader than the mandate; or if national security information is involved which seems to be where you’d really want the recordings; or if the circumstances make it impracticable which can easily happen; or if the SAC and US Attorney agree” that significant and articulable law enforcement purposes” require it not be done.

Reading the exceptions and seeing the few limited locations where it applies actually defeat the purpose of the stated policy. This shows that the FBI had a significant role in drafting the policy since it made it into, for lack of a better word, a joke. Other agencies might have had some input but the FBI is so bent out of shape with the idea that it must record interviews, a procedure few other law enforcement agencies find difficult, that it conned Holder into thinking he was doing something when he wasn’t; or perhaps Holder just wants to look like he’s doing something right rather than actually doing it right. It’s the old all talk no walk that is a pap for his left leaning friends.

Putting in a policy that recordings must be made and then writing the circumstances under which they are to be done and giving broad exceptions to when they much be done is a huge setback. The FBI will avoid doing recordings but state that there is no need for a policy requiring them to do it because such a policy is already in effect.

As we’ve seen in the Todashev situation, the Massachusetts State Police made recordings of their interview with him behind the FBI’s back; doing this they are able to demonstrate Todashev was involved in the Waltham Triple Homicide; something one would have hard trouble believing without it since the FBI agent killed him.

We need to have all interviews between FBI agents and others recorded even if the person is not in custody. Why isn’t the question asked: Why Is The FBI Afraid Of Recording All Interviews And Interrogations? If the recordings of a person’s words are the best evidence then we should have that and not some FBI agent’s recollections. Eric Holder should be ashamed of himself knowing the problem and then addressing it in such a pusillanimous manner.

5 replies on “A Feint Toward Justice Is Truly A Giant Setback: AG Eric Holder’s Big Blunder”

  1. Matt: you are correct: too many loopholes in the FBI/DOJ tape-recording regulation.
    Matt: Questions about Todashev: NEWs from Boston Magazine: “Currently, the Massachusetts chapter of the American Civil Liberties Union, the Florida chapter of the Council on American-Islamic Relations, Dzhokhar Tsarnaev’s lawyers, the Boston Globe and even the agent who shot Todashev, have all asked that the FBI release more information on the case.”
    My questions: 1. Ibrigham Todashev cannot be called a professional fighter. On July 27, 2012, almost a year before he was killed, he had his first and only professional fight. He beat a man whose “pro record” was 0-1-0. Todashev’s career MMA record was 1-0-0. One win, no losses and no draws. Hardly the profile of a pro. He was 27 years old, five foot eight, 155 pounds, when he had his one and only pro fight. He was not a big man. He was not a good fighter. The MMA says his sanctioned amateur record was 4 wins and 2 losses. He was an average AMATEUR. 2. He did not beat two men in a Florida Mall over a parking space dispute, as reported by the FBI. From a close reading of the facts, he confronted a 60-plus year old father and his @30 year old son and punched out the son, knocking him out. Todashev also reportedly had been an amateur boxer, but I’ve found no record of that. 3. The night he was shot, he did not wield a “metal pole”; he held what apparently was a plastic broom handle; the broom handle morphed into a metal pole as the FBI’s nose grew longer; Original reports said he wielded “a knife.” 4. He did not “charge” anyone: his body was found half-way lying in the entry-way to the kitchen; from looking at photos and diagrams of the murder scene, it seems that he was standing in the kitchen entrance when first shot: . He was shot three times in the chest, fell to his knees, then shot once in the top of the head while on his knees, and three times in the back, while still on his knees or flat out on his back. 5. It seems likely that after he was first shot, he fell to his knees, then was executed. 6. It seems to me he didn’t “lunge” at anyone while on his knees, otherwise his body would have moved beyond the kitchen. 7. It seems to me he didn’t “charge” at anyone otherwise his body would’ve been found somewhere in the living room, not still partly in the kitchen. CONCLUSION: Questions remain about the Todashev killing. POST-SCRIPT: IN APRIL 2014 THE ACLU SUED THE FEDS TO GET INFO ABOUT “BOSTON’S TERRORIST TASK FORCE.” The plots thicken.

    1. William:

      The new directive is really a non-directive ripe for not following.

      As for Todsahev, you ask some compelling questions and rightly point to the misinformation we have been smothered with. I gave the thing a pass because I am led to believe that he did confess to being involved in a triple homicide, if the tapes of the Mass State Police show that and I hope someone gets them, so the guy is a bad dude. Aside from that, the FBI has on its team the guy who killed him and I have no problem with him fearing for his life and shooting Todashev, but his background being in this type of situation before makes me think now that some fault may fall upon him as acting too precipitously. Yes, much remains open to question. I will have to return to it some day but for now I must move on.

  2. Unfortunately Holder’s act is not a real reform as you point out. A symbolic gesture at best. It looks to be when you look at the fine print, as totally cosmetic. A pr attempt designed to fool the public. Greenwald the NSA critic said if you are relying on the Congress to reform the spy agency you’ll get this kind of superficial, meaningless reform. At least the attention you brought to the issue forced them to do something.

    1. NC:

      You’re right it did force them to do something but sometimes doing the wrong thing is worse than doing nothing at all. I’m sure if you read the new policy you could see that it was worse than Swiss cheese with all the holes in it. Any FBI or DEA or ATF agent worth his weight in salt will first interrogate a person off campus prior to bringing him or her into as setting where a recording must be done; or, if perchance they run into the person in such a setting they will decide to transport the person elsewhere’s and while in transit they don’t have to record the statements. It’s so much better making up what you believe the person said rather than having the person’s actual words.
      Remember the bum who was drunk in one of the bars in the Fanuel Hall area in Boston who ran into the FBI agent and told her in an attempt to make a move on her that he was a bag man for Kevin White; she then testified to that before a grand jury but when he went in he denied that he ever said it so he was indicted for perjury. If a recording was made it would have shown the guy was drunk and speaking through his hat. But that would have been an inconvenient fact so best not do the recordings.

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