November 14, 2011 4:16:21 PM by
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 alternet.org 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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November 09, 2011 3:33:50 PM by
On October 30th, the Obama administration proposed an executive rule that will instruct government agencies to lie to the citizenry. The administration's proposal is a rule-change to the Freedom of Information Act: under the new policy, agencies would be instructed to tell citizens seeking prohibited documents not merely that the documents are not available, but that the documents do not exist at all. As my research assistant Daniel Schwartz and I show in our article on Forbes.com today, the implications of this seemingly insignificant bureaucratic decision are quite far-reaching, and make a veritable mockery of President Obama's supposed embrace of a new "era of openness" in government.
November 07, 2011 4:10:21 PM by
Caleb Warner may not be returning back to school this year, but he has been inspiring people to speak out against the guidelines for prosecuting sexual assault on college campuses.
On July 15th I published an op-ed in The Wall Street Journal about Caleb, a University of North Dakota student accused of sexual assault. Caleb was kicked out of school and the local police swore out an arrest warrant; not for him, but for his accuser. Utilizing the same evidence that led to his expulsion from school, the police determined that Caleb was not guilty, and that his accuser had filed a false police report. Even though police felt there was clearly insufficient evidence to bring charges (much less convict), the school was perfectly comfortable bringing him in front of a disciplinary board and expelling him. They were so comfortable, in fact, that even after Caleb's accuser left town following the warrant for her arrest, the school still did not agree to rehear his case.
But after a summer of bad press, along with intensive lobbying by the Foundation for Individual Rights in Education (FIRE), the University of North Dakota vacated all of Caleb's charges, including his expulsion. While he has said he is unlikely to return to the University of North Dakota, he now has a clean record, and can move on with his life.
Caleb's story has also inspired a number of other people who are concerned about due process on campus.
November 04, 2011 12:25:01 PM by
Yesterday, I was quoted in a story in the Boston Herald about a new lawsuit brought by my colleague Harold Friedman against the Boston Police Department. Harold's client, Maury Palino, alleges that he was hit and pepper sprayed in retaliation for filming some policemen making a violent arrest. In the article, I argue that the right to film police officers is essential to promoting an open and more free society, a right, incidentally, recognized by the courts in Simon Glik's recent case.
You can find the article by clicking here.
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November 03, 2011 2:58:41 PM by
On Tuesday, I was invited to discuss the Tarek Mehanna case on WBUR's radio program "Greater Boston." In the show, I debated Captain Glenn Sulmasy, a Law Professor at the US Coast Guard Academy in Connecticut.
As I have written here and elsewhere, my view is that the Mehanna case is, fundamentally, about free speech. Mehanna's translations of some Jihadi videos form the basis for his most serious charges of "Providing Material Support to Terrorists." I argue, in my debate with Capt. Sulmasy, that translations represent clearly protected speech; after all, I could make a translation of Mein Kampf, and it would not mean that I should be arrested for having urged the killing of Jews and Gypsies!
To hear a recording of the segment, click here, or listen to the embedded program below.
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