The FBI Is Still Operating Under The Rules of J. Edgar Hoover When It Comes To Gathering Statements of Witnesses

In my book, Don’t Embarrass The Family, I tell how I became involved with these matters involving Whitey Bulger. Dealing with them, especially having sat through the trial of FBI agent John Connolly, I began to fear that the FBI had become an untamed monster.  In the Connolly case it was embarrassed by the disclosure that it had been using top gangsters as partners in its fight against organized crime after it became public knowledge. To protect itself, it tossed one victim, Connolly, into the pit to be chewed on by the lions to sate the public’s appetite and continued with business as usual.

Connolly was convicted of some of the minor offenses but was sentence in a major way to eight or more years in prison.  Even though the knowledge and abetting of Connolly’s actions were widespread throughout the FBI somehow an agreement was made between the DOJ prosecutors and the FBI that only one person would take the hit.  An obviously more corrupt FBI agent John Morris, who had taken money from Whitey and his only other top echelon informant and who entered into a Machiavellian plot with the Boston Globe to see if he could have Whitey hit, was allowed to skate free as long as he cooperated and testified against Connolly.  No other FBI agents were charged with any crimes or disciplined despite the widespread knowledge and approval of Connolly’s actions.

I did a lot of thinking about these events after the trial and also looked back on what I knew of the FBI’s past dealings. This resulted in a section of the appendix to my book which I called “Self Accountability Is No Accountability.”  As part of that I made 15 recommendations where I thought the FBI could improve itself.

My first recommendation is “Record Interviews.”  Do you know if the FBI comes out to interview you the two agents will not do the interview if you insist on recording it. The FBI is afraid to have anyone record their discussions with individuals preferring to conduct the interview, take notes, and then return to their office where they will write up what they call a 302 form which sets out their impressions of the conversation. Obviously, that does not accurately reflect what is said. This has resulted in the perverse idea among the FBI agents that “if it is not in writing it does not exist.” Or, the reality of what happened is only what the FBI agents reduce to writing.

The FBI strongly resists any change in this procedure.  Recording a witness is the exception and not the rule. It is as if we are back in the 1930s. That is how it was done then and nothing will change it. The question that comes to my mind is why doesn’t the FBI want to use the best evidence available which are a person’s words.

We saw this in the recent trial of Bobby George the Boston criminal defense lawyer who was convicted after taking money from a DEA informant who set him up so that he could get a pass himself. When the informant testified, he had lied so often in the past, like the witnesses against Whitey, that it was impossible to believe anything he said.

The jury nevertheless convicted Bobby. It did so because the informant made secret tape recordings of their conversations. The jury did not believe the informant yet it felt compelled to believe Bobby’s words on the tape.

When I did wiretaps under Title III, and when the FBI does these wiretaps, the requirement mandated by Congress is that all the conversations intercepted must be recorded.  A person designated as a monitor will sit and listen to each conversation.  That person will make notes about the subject matter of the conversation and will decide whether the conversation is privileged, in the latter case it is terminated and not listened to.

Congress did not think it was all right that we rely on the notes taken by the monitor as evidence of the conversation. It wanted us to have available the full conversation and not the conversation as interpreted by another person.

We all know how easy it is to record a conversation.  Everyone with a smart phone or ipod can do this. Yet the FBI refuses to do it.

I’ve wondered what is behind its desire not to produce the best evidence. Why does it insist that the only part of an interview that matter is what the agent puts down on paper at a later time in his office?

Federal Judge Wolf was asked by the FBI to be interviewed.  He agreed.  He set one condition. He wanted to preserve for himself the right to read the 302 before it was filed.  He did and made some corrections to it. He recognized the fallibility of agent’s memories.

Too bad this right is reserved for judges only. None of us could have this courtesy. One author wrote that when he read a 302 of his interview with the FBI, he didn’t recognize anything that he was alleged to have said as being something that he did say.

J. Edgar Hoover died 40 years ago. A lot has happened since he’s been dead. It strikes me that the FBI’s use of the same reasons for not recording interviews and witness statements that Hoover used is a pretense that we’re still back in 1972.  Isn’t it time the FBI came into the present and started collecting the best evidence? It won’t do it on its own. Why is Congress so afraid to require it to come into the 21st Century?