An chain of emails advising an FBI official what to do with an FBI Special Agent who has been approached by an Naval Criminal Investigative Service investigator regarding the capture in Afghanistan of a subject who was later killed reportedly while in custody. The agent asked the investigator if they were the target of the investigation, but only received the response that the investigation was a criminal matter. The agent is seeking a counsel's presence during the interview, but a FBI official replies that, "the Agent has to proceed at his own risk for the time being until this is sorted out."
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FOGLE, TONI M. (INSD) (FBI)
ALL INFORl,IATI ON CONTA ~~D
HERE IN I S illJCLASSI FIED
DATE 03-1 3-2009 BY 65179 DMH/ 1s c
From: I I.(INSD) (FBI)
Sent: Wednesday, September 29, 2004 2:43 PM
To: FOGLE, TONI M. (INSD) (FBI)
Subject: RE: NCIS interview request of SA IL...... _
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SENSITIVE BUT UNCLASSIFIED
NON-RECORD
, Yes, this is the one we discussed this morning. HRT w/Special Forces in Afghanistan.
~j... ...J
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-----Original Message-----
From: FOGLE, TONI M. (INSD) (FBI)
Sent: Wednesday, September 29,20042:38 PM
To: GRANT, 'ROBERT D. CINSD) (FBI); ASHLEY, GRANT D. (DO) (FBI)
cc:1 kINSD) (FBI); MrRSHON, MARKJ) (SF)(FBI)
Subject: RE: NOS interview request of SfIl .
SE'NSITIVE BUT UNCLASSIFIED
NON-RECORD
0- did you see this -- is this,the,one we discussed? I'm g,etting confused.....
-----Original Message----
From: GRANT, ROBERT D. (INSD) (FBI)
Sent: Tuesday, September 28,200411:59 AM
To: ASHLEY, GRANTD. (DO) (FBI)
Cc: FOGLE, TONI M. (INSD) (FBI)jl.- ---JkrNSD) (FBI); MERSHON, MARKJ.'(SF)
(FBI)
Subject: RE: NOS interview request of sAJL....- _
SENSITIVE BUT UNCLASSIFIED
NON-RECORD
Grant - The issue regarding SAl Iifthis is the same situation Toni Fogle reported, is one,
where the Agent should be advised that his cooperation is "voluntary" on his part. This is
complicated by his potential risk for having witnessed something that should have been reported,
but was not. In addition to whatever potential exposure he has regarding the investigation being
conducted by NCIS, he could face other exposure from the FBI regarding "failure to report". As you .,
may know, we recently completed an inspection of the GITMO activities. FBI personnel with
knowledge of the activities in the prison there were queried and those that had relevant information
were given a degree of immunity to release them of their "failure to report". They were subsequently
" interviewed.under those protections. However, with the emergence of the Afghanistan matter we
now have very similar situations and no institutional decision yet on how to proceed to ensure we
approach our personnel systematically and carefully to: a) get the information the Director needs ;
and, b) not put at risk unecessarily any pending prosecution or subject the FBI to serious criticism.
Valerie Caproni has surfaced this matter to the DD to work on a systemic solution, Complicating
this matter has been the DIGs knowledge of this and unhappiness with not being consulted. In a
nut shell, the Agent has to proceed at his own risk for the time being until this is sorted out.
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11/9/2004 FBI001846CBT ACLU-RDI 6087 p.1
DOJOIG 001619
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Sorry
Rob
-----Original Message-----
From: ASHLEY,' GRANTO. (00) (FBI)
Sent: Tuesday, September 28,20048:06 AM
To: Capronl, Valerie E. (OGe) (FBI); GRANT, ROBERT O. (INSO) (FBI)
Cc: TIOWELL, J STEPHEN (IR) (FBI)
Subject: FW: NCIS interview request of S~L...- _
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SENSITIVE BUT UNCLASSIFIED
NON-RECORD
Val/Rob - Can we provide the SA some more concrete guidance or obtain some position as
to his status? I remember vividly FBI personnel taking this position when they didnt need to
and it was personally and institutionally damaging. GOA
-----Original Message-----
From: TIDWELL,J STEPHEN (IR) (FBI)
Sent: Monday, September 27,20046:39 PM
To: ASHLEY, GRANTO. (DO) (FBI)
Cc: REINHOLD, TRACYA. (DO) (FBI)
Subject: FW: NCIS interview request of SAl b 6
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SENSITIVE BUT UNCLASSIFIED
NON-RECORD
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Gentlemen:
Latest we have on our plate.
L
-----Original Message-----
From: TIDWELL,J STEPHEN (IR) (FBI)
Sent: Monday, September 27,20045:14 PM
To: MERSHO~ MARK J (SE)(EBI): qproni, Valerie E. (OGe) (FBI)i KELLEY, PATRICK W.
OGC FBI .L J(ASD)(FBI)~ I(CfO)(FBI)ilL....-__
INSO FBI
Cc: (HRT) (FBI)~ KHRT) (FBI)il
(HRT) (FBI) ----
...S-u...,..b....,.je-ct .....: NCIS interview request of SA1 _
SENSITIVE BUT UNCLASSIFIED
NON-RECORD
s~ r Afgahnistan, has been adVised by 110 Dei ithat l\lelS is seeking cui
interview him regarding the capture in Afghanistan of a subject who was later killed reportedly
while in custody of SOF. SAl Icontacted the NCIS investigatorl land
asked if he was a target of the investigation and: !would not give an answer to the
question other than to say it is a criminal matter:--sPI Iwas present during the
capture and detention, but was not involved beyond that initial contact or knowledgable at the
time of what happened to the detaine:1 Absent some indication regarding the question of
whether he is a witness or a target. SAl Iprefers not to be interviewed or,
if interviewed, then with counsel present. Can someone in OGC or INSO provide some more
info re this request and any protocols that we are operating regarding these?
Thx, Steve Tidwell .
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11/9/2004 FBI001847CBT
ACLU-RDI 6087 p.2
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