Monday, August 22, 2005

FBI and AIPAC--Volokh

First David Bernstein then Orin Kerr at the Volokh Conspiracy commented on the case of AIPAC staffers being charged with receiving classified information from a DOD staffer. Bernstein passed on allegations that the FBI agents were asking bad questions (tending to show anti-Semitism), while Kerr questions the piece:
"As best I can tell, the only real factual claim in the piece is that 'strange questions' were being asked during the investigation. The piece doesn't say who was asking the alleged strange questions, however, or two whom they were addressed. In addition, the two specific questions mentioned don't sound to me like something an FBI agent would ask (especially the second question). David suggests that the asking of such questions wouldn't surprise him because some anti-Semitic views are popular in 'many 'intellectual' circles,' but I don't think such circles are generally thought to include the Federal Bureau of Investigation.
My feelings on the case--from the papers it sounds like Washington's iron triangle of lobbyists and bureaucrats operating as usual, that there seems to have been a violation of law, that the case is overblown, except as a warning shot to people in similar situations to remember classification rules, and that the AIPAC side is doing what everyone does who's caught with their hand in the cookie jar--yell "police brutality" (i.e., misconduct). The last reflects my normal tendency to go with the authorities in most cases.

However, today's Post shows the limits of Kerr's logic. Would a police detective, who's investigating a murder with a suspect would continue blithely on after the suspect asked for an attorney. I would have said "probably not"--thinking Miranda had impacted police behavior. Tell me that the interview is being videotaped and I'd say: "surely not."

I'd be wrong. See this piece in the Post. So, Orin Kerr and I should remember it is possible to overestimate the common sense of people, even PG detectives and FBI age. And maybe we should consider requiring all interviews to be recorded--the technology is there, why shouldn't we use it?

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