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DoJ Requires Electronic Recording of Interrogations – But Not in National Security Cases

In an important decision not widely reported, the Department of Justice last month adopted a policy requiring that interrogations of suspects arrested by the principal federal law enforcement agencies (including the FBI and the Drug Enforcement Administration) ordinarily must be recorded electronically. The new requirement is an unquestionably positive development, long overdue, but it expressly exempts interrogations in national security cases – an exception that is at best puzzling and, at worst, downright alarming.  The new policy, set forth in a May 12 DoJ memo entitled “New Department Policy Concerning Electronic Recording of Statements” (full text), will go into effect on July 11, 2014.

Preserving an unambiguous record of what transpires in custodial interrogation has long been advocated as a win-win proposition for all concerned and has increasingly been adopted as formal policy by responsible law enforcement agencies. Justice Department action adhering to this consensus can only be applauded, but on close inspection the new policy turns out to have several disappointing features.

First, the positives. The presumption that interrogations must be recorded applies to all custodial interviews in connection with all federal crimes. And although its caption refers to the recording of “statements,” the policy specifies that the entire interview must be recorded, from the moment the suspect enters the interview room until the moment when the interview is concluded. The obligation to record the whole interview session is crucial. Police departments routinely transcribe a suspect’s confession but choose not to preserve an objective record of the interrogation process that preceded it. By requiring that the entire interview be recorded, the new DoJ policy insures that any subtly coercive or suggestive influences—or their absence—will be reliably documented.

Although (inevitably) the new recording policy is cast as a presumption, rather than an inflexible requirement, it carries procedural checks to prevent the “presumption” from becoming merely an aspiration honored in the breach. Any decision not to record a presumptively required interview must be documented by the agent in charge and will be subject to review by DOJ and FBI superiors.

In other respects, the new policy is less comprehensive. No recording requirement applies when circumstances make recording impracticable–for example, when equipment is unavailable or malfunctioning. This exception is understandable, but an important loophole lurks here, because the recording obligation begins, and recording equipment ordinarily will be available, only at the time when the arrested suspect enters the interview room. Yet, the FBI and other agencies are under no obligation to defer the interrogation until that time, even when there is no law enforcement need for questioning to begin immediately. Thus, the problem of off-screen influences resurfaces—suggestive or coercive stimuli may be brought to bear (or may be alleged to have been brought to bear) before any recording starts. And the policy makes no evident effort to confine the scope of this loophole.

An additional set of exceptions is potentially more important–and is thoroughly mystifying because it cannot be explained by any conceivable logistical concern. Recording is not required, not even presumptively required, in questioning for any of three partially overlapping purposes: for gathering “public safety information,” “national-security related intelligence, ” or matters “concerning intelligence, sources, or methods, the public disclosure of which could cause damage to national security.”

The public safety exception echoes the Supreme Court’s decision in New York v. Quarles which held that Miranda warnings need not be given prior to questioning intended to avert an immediate threat to public safety (such as, in Quarles’ case, the location of a handgun hidden somewhere near the place of arrest). The Court’s concern in Quarles was that Miranda warnings might deter the suspect from disclosing information urgently needed to prevent potentially lethal injury. But whatever the justification for this exception to Miranda, it is difficult (if not impossible) to see why public safety concerns justify any exception to the presumptive requirement to record formal interviews.

Unwarned public safety questioning ordinarily occurs under exigent circumstances in the moments immediately following arrest. Because recording is typically impracticable at that time, the recording requirement is inapplicable in any event. Occasionally (in a ticking time-bomb scenario, for example), public safety may still be implicated when questioning continues in a more formal setting. Under those circumstances, the Quarles exception to Miranda could still apply. But since recording is no longer impracticable, why wouldn’t a responsible law enforcement agency want to preserve an unambiguous record? Unlike a public safety exception to Miranda, a public safety exception to recording seems to serve no purpose other than that of affording a loophole that can be exploited for illicit purposes.

The same point applies with even greater force to the exceptions for “national security” and “intelligence, sources, or methods.” If recording is feasible (and that is the only condition in which the recording policy applies), national security and counterterrorism officials can only gain by having an unambiguous record of precisely what a suspect was asked and precisely how he or she answered. Indeed, an official who deliberately chose not to make and preserve a clear record of a national security interrogation would display less dedication than incompetence.

But perhaps what these exceptions reflect is a “Snowden” effect – a fear that anything recorded can or eventually will be leaked, with potential damage to national security resulting from the disclosure. If so, the explanation raises more worries than it puts to rest. Snowden, after all, was motivated to expose what he quite correctly perceived to be rampant illegality. Is that what DoJ believes would be revealed by a documentary record of national security interrogations? Or has DoJ lost all confidence in its ability to keep lawful, appropriately classified information secret? And either way, does the national security exception imply that national security interrogators will not make notes at all and will not keep records of any kind?

No national security establishment can possibly operate effectively on the basis of unwritten knowledge and word of mouth. If our government has reacted to the Snowden affair by developing an aversion to writing anything down, we are in deep trouble. The reality, of course, is that there is no chance of this happening; national security interrogations and the fruits of other intelligence work must and will be documented. But then we have done little or nothing to mitigate the danger of leaks – a danger that our intelligence community must find effective ways to address, whether or not national security interrogations are fully recorded.

At best, the decision to opt for partial, paraphrased information rather than a complete original record affords an opportunity to scrub potentially embarrassing details (a kind of anticipatory redaction), at the cost of eradicating at the same time the nuances and tiny pieces of mosaic that intelligence officials so often insist to be crucial. It is a decision to subordinate accuracy to the lure of freedom from the constraints of propriety and law, a profoundly sad choice.

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About the Author

is the Robert B. McKay Professor of Law at New York University Law School.