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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Justice strikes out: The railroading of Barry Bonds

While I have not followed baseball since my beloved Dodgers left Brooklyn, a recent baseball-related story caught our attention. As many of you may know, Barry Bonds—the “home-run king”—was just convicted in federal court of obstruction of justice, and acquitted of three counts of perjury. At issue was whether Bonds lied, in 2003, to a federal grand jury about his steroid use and relationship with the Bay Area Lab Cooperative (BALCO). The jury failed to convict him of perjury, but due to a disturbing reading of the law, District Judge Susan Illston upheld the conviction of obstruction. It seems that, during the course of the Grand Jury questioining, Bonds rambled on, and failed, initially, to answer a given question directly. Even though he later gave a clarified, specific response to the question at hand, his rambling constituted, for 12 jurors and a District Court judge, an attempt to obstruct justice. For obvious reasons, every citizen—especially the more loquacious among us—would have reason to worry if this conviction stands.

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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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Boston Globe op-ed: Finneran's only crime is careful diplomacy

Those familiar with Three Felonies a Day know the story of former Speaker of the Massachusetts House Thomas Finneran. Finneran was charged with federal obstruction of justice and perjury because he allegedly lied, in court testimony, about the extent of his involvement in a legislative redistricting plan that was being challenged as discriminatory. Under questionable circumstances, Finneran entered a guilty plea in 2007. Accepting this plea as indisputable proof of culpability, the Supreme Judicial Court disbarred Finneran earlier this month.

In today's Boston Globe, I put Finneran's case in the context of the ever-increasing rate of guilty pleas in the federal criminal justice system, noting that the Feds essentially made him an offer he could not 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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