NCIS must record interviews
By: North County Times Opinion staff - | ∞
Our view: Military investigators risking their own cases by failing to use yesterday's technology
Seven years into the 21st century, it's long past time for NCIS to catch up to 20th-century technology.
The investigators of the Naval Criminal Investigative Service, the federal agency responsible for investigating sailors and Marines accused of criminal acts, must immediately start recording their interviews and interrogations of witnesses and suspects with something better than a ballpoint pen.
The perils of not doing so are apparent to anyone following the Article 32 hearing of Marine 2nd Lt. Nathan Phan, who stands accused of assaulting three Iraqis in March and April, and making a false official statement regarding one of the incidents. Defense witnesses testified last month that NCIS agents added false material to the statements the agents were collecting from those witnesses while researching the charges against Phan. We may be stuck with a "he said, she said" dispute over what happened in those interviews, and it shouldn't have to be that way.
The disputed testimony in Phan's case has cast a harsh light on the outdated methods NCIS agents use to record those statements. Essentially, NCIS agents write down the statements of the witnesses they are questioning, and then have witnesses initial their own statements. But that leaves far too much room for error or interpretation. At least one witness now says he signed off on an inaccurate statement because he was busy with guard duty in Iraq.
The glaring truth is it didn't have to be this messy. Video cameras have been around for decades, tape recorders even longer, and newer digital devices make recording even easier. There is simply no excuse for military investigators to rely on notebooks and their memories when conducting custodial interviews.
A 2004 study of police experience with recording custodial interrogations by Thomas P. Sullivan of the Northwestern University School of Law convincingly makes the case: The precise words a suspect utters are captured in permanent record. The visual cues of gesture and reaction (often indispensable in evaluating a face-to-face conversation) are available to subsequent juries and judges. Accusations of police misconduct ---- for failing to properly provide Miranda warnings or ignoring requests for a lawyer, for instance ---- can be supported or dismissed almost instantly.
Sure, machines break down and human error can render them useless, but both can be minimized through training and policies that take such inevitable, presumably infrequent mishaps into account. The value of having such a neutral record of an interview or interrogation is priceless.
An NCIS spokesman told North County Times reporter Mark Walker in September that the agency was reviewing its policy of not video- or audiotaping statements it takes from witnesses or suspects.
That answer came in the early days of the prosecution of the so-called "Pendleton 8," seven Camp Pendleton-based Marines and a Navy corpsman who were charged in connection to the slaying of a 52-year-old Iraqi civilian in the village of Hamdania, Iraq. The case against Phan, who wasn't present during that fatal April 26 incident and hasn't been linked to it in any way, nonetheless sprung from the Hamdania investigations. Phan was the commanding officer of the eight platoon members charged in the Hamdania killing, five of whom have pleaded guilty to various charges. Statements written down by NCIS agents pursuing the Hamdania case formed the crux of the assault cases against Phan.
Phan's is the second straight high-profile case against locally based Marines to send up a flare illuminating the unjustifiably antiquated interviewing methods employed by the NCIS. It's long past time for the agency to start properly recording the statements it takes from witnesses and suspects.
After all, if the police departments of Oceanside, Carlsbad and Escondido have all used recording and audiovisual equipment for years, why are the feds so slow to catch up to last century's technology?
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MorallyRight1 wrote on Feb 6, 2007 2:10 PM:Kudos to the North County Times for expressing the 'Well, Duh!!!' at the huge mis-step into the new Millenium, on behalf of the NCIS. When men & women's lives are at stake, it would be especially prudent for them to use all of the technology available to them. I wonder if this 'oversight' might not be deliberate?
AW4cryinoutloud wrote on Feb 6, 2007 3:00 PM:I had a prayer answered today. I have been waiting for someone in the media to stand up against "any" one of the many injustices in these hearings. Those in power in this country; media being the most influential, seem to abuse that power at will, without any regard to lives ruined. NO one, except those involved, knows what happened in Hamdania or Haditha. To deny our Marines their inherent rights and protections provided by law, which allow them every avenue available to defend themselves against their accusers, is an unforgiveable example of abuse of power. These Marines have never been given the benefit of the doubt by the media (NCTimes not included) in it's reporting from the very beginning. Nor have those in power within their own military community treated them as though they were presumed innocent. Isn't there supposed to be a Corroboration Rule followed in these proceedings? NCIS can't even "corroborate" their own statements or their own accusations against any of these Marines. They've obviously been aware for months that their system was a failure and of the cruel effect it would have on these cases. NO one; not the media, not NCIS, and not the prosecution, can corroborate the accusations of the Iraqi so-called witnesses. Actually, the media did state several times that the accusations could NOT be confirmed. All NCIS and the prosecution have proven is their ability to accept unauthorized (leaked) information, coerce, threaten, intimidate, and have plea deals good to go as quickly as possible; all accumulatively whittling away the rights and protections of the Marines who have yet to be heard. None of them should ever have been put through this. None of their families should have been put in the position of financial ruin and the heartbreak they've endured because of Abuse of Power which, according to the UCMJ, is illegal. It's obvious there are not going to be any "fair and impartial" trials for Sgt.Hutchins, Lance Corporal Pennington, Corporal Magincalda, or Lt.Phan; and Heaven help the ones who follow. NCIS, the Prosecution and the Corps' could stll restore their honor: Right the wrongs. Let OUR Marines Go!!!
mark wrote on Feb 6, 2007 8:30 PM:The military's justice system seems to rely almost exclusively on confessions from defendants in custody. I am not sure that NCIS's present procedures are compatible with an audio and in particular video record.
Mike wrote on Feb 14, 2007 7:44 AM:Don't you get it? NCIS and the JAG Corps couldn't carry out their military injustice if they taped their so-called "confessions." NCIS agents are FBI wanna-bees and couldn't hammer innocent service-people the way they do now if they taped their shennanigans. MorallyRight1 is right on asserting that their decision to not tape is deliberate. BZ to AW4cryingoutload. NCIS agents should be out arresting insurgents instead of treating batlefields as crime scenes and arresting our own people for killing the enemy.
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