Not Just Tsarnaev: Right To Council Dwindles

On May 7th, defense attorneys for Dzhokhar Tsarnaev filed a motion to suppress statements that FBI agents claim Tsarnaev made during an interrogation in the Intensive Care Unit of Beth Israel hospital. The pre-trial wrangling over whether this interview, which took place before Tsarnaev was read his Miranda rights, can be admitted into evidence raises important questions about the right to counsel and the privilege against self-incrimination. In my latest column for WGBH News, co-authored with my research assistant Juliana DeVries, we explain how the Supreme Court has in recent years allowed for the serious erosion of these key Constitutional protections.     

You can read the column at the WGBH website

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Beware the FBI when it is not recording

Civil libertarians are used to sounding the alarm about pervasive government surveillance in the era of cellphones, drones and the Internet. But, as alleged Marathon bomber Dzhokhar Tsarnaev’s classmate Robel Phillipos is now discovering, an equal threat to liberty is the FBI policy forbidding recording of interviews.

My latest column, which ran in this Saturday’s (May 11th) Boston Globe, explains the danger faced by witnesses and defendants who talk to the FBI. You can find it on the Globe’s website.

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What to do if the FBI wants to interview you

One of the most shocking, and under-reported, Department of Justice practices is the FBI's express policy NOT to tape-record interrogations. Not recording interrogations allows the FBI to claim itself the sole arbiter of what is, and is not, true in a witness's testimony. Such a strategy gives clear, and unfair, advantage to the prosecution, and presents problems for witnesses, defendants, and defense lawyers alike.

But there is a simple, and effective, strategy which, if implemented, can get around the pesky problem: insist on recording the interview yourself. Recently, the Massachusetts ACLU asked me to discuss what to do if the FBI decides it needs your testimony. Here is how I responded:

I have been happy to see that the ACLU video has been catching on. In a recent article on critiquing the "surveillance state", my interview was given as pragmatic advice to those who fear they might face an FBI interview. I sincerely hope my advice helps and that, eventually, the FBI decides to reform its harmful policy.

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Constructing Truth: the FBI's (non)recording policy

President Obama today officially
 signed into law a bill allowing FBI Director Robert Mueller to be appointed two years beyond his original ten year posting. But what Obama neglects to confront, and all but a few citizens fail to notice, is a fundamental flaw in the FBI’s truth-gathering apparatus consistently defended by Mueller (and, to be fair, his predecessors): the Bureau-wide policy of deliberately not recording interrogations and interviews, a practice that allows the FBI to threaten/manipulate witnesses and manufacture convictions, and which brings into question basic notions of fairness and justice. In the latest installment to my blog, co-authored by my research assistant Daniel Schwartz, we explores the deeper implications of the non-recording policy, and exposes it as a means for the FBI, in the words of Sonny Corleone, to deliver to witnesses “offers they can’t refuse.”
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Updates related to Harvey's
book Three Felonies a Day, a critical
take on the Justice Department

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