Section 7 of the FBI's "Manual of Investigative Operations and Guidelines" reads: "Use of tape recorders for the purpose of recording the statements of witnesses, suspects and subjects is permissible on a limited highly selective basis, and only when authorized by the SAC (special agent in charge). I've been railing for years about the FBI's refusal to electronically record interrogations and confessions. For years, the FBI was the standard bearer, way ahead of the curve in terms of ensuring that confessions were reliable and suspects rights were safeguarded. They were reading suspect's Miranda-like rights even before the Miranda decision. But they have a blind spot when it comes to electronic recording.
Apparently, any prosecutor with the courage to call the FBI out on its recording policy is at risk of retaliation. An article in today's New York Times about 8 United States Attorneys who have been dismissed by President Bush and his Justice Department (one of the largest such housecleanings ever), states that Paul Charlton, the former United States Attorney for Arizona (Phoenix) was dismissed, in part, because he annoyed FBI officials by pushing them to record confessions. The good news is that both Democrats and Republicans on the Hill are thinking of holding hearings on these dismissals. If that happens, it could lead to a broader discussion on the issue of videotaping.
Seven states and the District of Columbia now require recording and hundreds, if not thousands, of local law enforcement officers around the country are going to the tape (be it video, audio, or digital). But the FBI (and other agencies within the Justice Department) still refuse to record. The FBI's policy of not recording has cost them some cases and there have been numerous high profile false confessions in cases with FBI Involvement (Abdullah Higazy, Kenzi Snider, Chuckie Hickman and allegations of coercive tactics in others (Wen Ho Lee).
If the FBI's policy is not subject to scrutiny during the investigation of these firings, it is unlikely that any time soon you will see federal prosecutors second-guessing the policy. The only chances left for such a change in policy lie with federal judges (and some have started to push the Feds) and with the President. The good news is that Barack Obama was successful of brokering a compromise in Illinois which led to the first legislation requiring recording of interrogations. Maybe if he is elected President, he'll have the courage to push the FBI.....