An email, including a chain of forwarded emails, concerning an Naval Criminal Investigative Service interview of a Las Vegas FBI Special Agent regarding an incident in which the FBI agent is alleged to have been present during an interview between an Naval Criminal Investigative Service agent and a detainee concerning that detainee's report of abuse. The chain generally concerns the "fuzziness" of legality, jurisdiction and procedural guidelines when it comes to external agency interviews of FBI agents. File name: DOJOIG001604.
Message
FOGLE, TONI M. (INSD) (FBI)
From: pGC) (FBI)
Sent: Thursday, September 30, 2004 6:11 PM
To: FOGLE, TONI M. (INSD) (FBI)
Subject: RE: NCIS request to interview agent in Las Vegas
SENSITIVE BUT UNCLASSIFIED
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HEREIN IS U1ICLASSIFIED
DATE 03-1 3- 2009 BY 65179 DI1H/1sc
I think the jurisdictional analysis remains the same so long as the activity is occurring on a U.S. installation in a
foreign country. For any misconduct committed on that U.S. installation by civilians (u.s. or foreign), I believe that
DOJ has the sole U.S. jurisdiction to prosecute those involved absent any agreement between the U.S. and the
accused's country of origin. (the military has some agreements with some local foreign jurisdjctions for crimes
committed against the base by locals as well as agreements with foreign military groups whose staff are working
with us) And, federal law would be applied to the situation so that is easily understood by our people . Everything
gets murky if the interview/activity occurs outside the U.S. and away from a U.S. installation. (Or if the military
base is a multi-national base like the one in Saudi Arabia) The agents would likely come under the jurisdiction of
the justice system in that country for any misconduct that is alleged(absent any agreement to the contrary
between the U.S. and the foreign government.) The same would be true for any foreign national police who
abuse or commit misconduct on one of our installations, they would be subject to our jurisdiction, again absent
any agreement to the contrary. Basically, we can be subjected to their rules and they can be subjected
to ours depending on where the action takes place and depending on any agreements that are in place.
And I don't think that we could criminally prosecute an agent who committed misconduct in a foreign country off
of a U.S. installation. (Administratively the agent could still be disciplined) As a prosecutor, I had to decline to
. investigate/prosecute a seemingly bad off-duty shoot in Central America by a State Dept. Diplomatic
Security Service Agent. (Agent was drinking in a local bar, a fight broke out, Agent shot and killed a local) The
crime occurred off of any U.S. installation and the victim was not an american (new terror laws criminalize acts of
violence committed against Americans in foreign countries, and the statutes are broad.) The DSS agent was
already back in the States and the foreign country apparently could not prosecute without the State Dept's
permission. (Like diplomatic immunity) So, State wanted DOJ to look at it but we couldn't. They had not made a
decision as of last Fall. But absent whatever agreement State had with that country, I believe that the agent
would have been facing trial in that foreign country for killing one of their citizens.
By the wayJ lone of our attorneys here is involved in writing a policy and procedure for agents' b 6
conducting operations in Iraq. (The fact that we've been there for 1.5 years without any direction is disconcerting b7 C
but they are doing it now. And the fact that the original DOJ draft suggested that agents "arrest" wrongdoers in
Iraq didn't inspire my confidence.) After I got your email, I talked to him and we don't have a clear answer-on
what would happen because it involves an entire Military theater rather than just an installation. AND the agents
are being assigned to military command rather than just Visiting a base. I'll try to send you whatever they come
up with. If you have any specific questions, I can try to do the research on it. Let me know.
-----Original Message-----
From: FOGLE, TONI M. (INSD) (FBI)
Sent: Thursday, September 30, 2004 10:40 AM
Tol raGC) (FBI)
cc~ I(INSD) (FBI)~ rNSD) (FBI); GRANT, ROBERT D. (INSD)
(FBI); MERSHON, MARK J. (SF)(FBI) '- .....J
Sijbject: RE: NOS request to interview agent in LasVegas
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Thanks for all of your insight, this is turning into a widespread issue - and I'm hoping the Bureau will
implement a universal policy regarding how we address these issues/concerns in the future. Contact
directly or through you (either) is fine. Again, I appreciate your reaching out and taking the time to provide
your insights.
As an aside - your analysis involves military situations. Have you thought about those situations where
there is other agency interrogation with no arrest, or where foreign national police are involved? T>
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-----Orjgjnal Message-----
Froml I(OGe) (FBI)
Sent: Thursday, September 30,200410:15 AM
To: FOGLE, TONI M. (INSD) (FBI) .
Subject: RE: NelS request to interview agent in LasVegas
SENSITIVE BUT UNCLASSIFIED
NON-RECORD
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I apologize for not providing better notice, the time was very compressed and this was my first
experience with this situation. I promise to do better with it in the future. It ended up on my desk
because I've been dealing with some of the discovery issues related to the Military Tribunals in
Gitmo.
The interview was last Thursday (09/23/04), the agent's name wad lout of the Las
Vegas Division. He had been TOY to Gitmo. The ReliefDivision Counsel (ROC) was present for
the interview. (\ told the ROC thad ~ould not be compelled by the military so that he was
free to place any conditions on the interview he wanted including who was present.) The NCIS b6
Investigator who conducted the interview wasI [from the NCIS in California. b 7 C
The interview was short and all the questions focused on the abUSj alle:atjOns made by one
detainee to an NCIS investigator in the presence of the agent. SA did not
document anything about the allegations in GITMO since NCIS was con ucting the interview with
the detainee. Apparently, he did not recall any great detail about the allegations made by the
detainee. The Agent and the Relief Division Counsel agreed that the interview went smoothly.
11/912004
. I read the other emails that you forwarded. Coincidently, I am a former FBI Agent who
then became a Federal Prosecutor in the DOJ Civil Rights Division where one of my responsibilities
was to conduct grand jury investigations and trials of police misconduct. (I returned to the FBI in the
past few months) Regarding the representation of the.agents who are interviewed, DOJ is in an
interesting position on these GITMO interviews because they would be the only prosecutors with
jurisdiction to prosecute any of the agents for any misconduct that occurred there. (Crime occurring
within federal territory/reservation) We wouldn't have to be concerned with the military
authorities (agents don't fall under their jurisdiction) and no local, county, or state prosecutors have
any jurisdiction. So, even if DOJ didn't want to grant authority to represent the agents at these NCIS
interviews, DOJ could decline any prosecution, based upon a description of the facts, just like in any
other misconduct case that is handled administratively. (Which typically allows the employing
agency to compel its employees to submit to an interiview.) Alternatively, with a few of these
detainees filing civil complaints, DOJ should be worried about civil liability rather than criminal
liability which, in the past, has resulted in consultation with the agents by civil AUSA's & DOJ
attorneys. DOJ civil division has experience representing agents against Bivens civil suits which
mirror criminal theories of liability.
The NCIS investigation is continuing, Investigato~ Iwas under the impression that other
FBI agents had been contacted for interviews but this was the only one that I had heard of. I
am dealing with a Deputy Assistant Director of NCIS on the discovery issues, I was just going to tell
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him to contact me before anyone identified in the documents they've been getting is
contacted. Would you rather be contacted directly rather than through me?
I I
NSLB -CTLU 1
LX 1 room;l'5I.l.iSw2"-l1.L.7 _
Outside #:1'-- _
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-----Original Message----
From: FOGLE, TONI M. (INSD) (FBI)
Sent: Wednesday, September 29,20045:40 PM "
To~ I(OGe) (FBI)
ec: GFANT ROBERT p. CINSD) (FBI); MERSHON, MARK J. (SF)(FBI);I I(INSD)
(FBI)!. I(INSD) (FBI) 1.....- _
Subject: RE: NelS request to interview agent in Las Vegas
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I've been out of the division for a week and a half, and just received your communication. I'm
going to forward you some past communication (delete the names, but review the insight)
coming out of my section. My preference is for one of my SSAs to be in the interview for'
Bu informational purposes. Please advise us of further details . Thanks. (More bu-wide
specific policy should be forthcoming. The DO has been briefed on the increasing frequency
of these concerns.) T>
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-----Original Message-----
Froml tOGC) (FBI)
Sent: Wednesday, September 22,20041:12 PM
To: FOGLE, TONI M. (INSD) (FBI)
Subject: NelS request to interview agent in Las Vegas
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SENSITIVE BUT UNCLASSIFIED
, NON-RECORD
I am the NSLB attomeyasslqned to CONUS IV in CTLU #1. I W
Assistant Division Counsel in Las Vegas because NCIS had requested to interview a
Las Vegas agent about an interview for which he was present in Guantanamo Bay,
Cuba. I spoke with the NCIS investigator to find ascertain the reason for the
interview. (I am already dealing with NCIS for requests for information which the
detainees provided during our interviews in Gitmo which is necessary for the
Tribunals) NCIS told me that the agent was present when a naval investigator
interviewed a detainee about allegations of abuse made by the detainee against
military personnel. The naval investigator wrote a report on it. The FBI did not
produce a 302 on this interview as it was a milltary investigation. (We have
interviewed this particular detainee several times since he was placed in Gitmo.)
.: I instructed the NCIS to produce a letter that said that the agent was being contacted
-- as a witness, that he was not under investigation, and that they wanted to interview the
agent about his recollection of the allegations made by the detainee. They are trying
to cover all their bases as the investigation-is being pushed by Wolfowitz:s office and
the military is under great scrutiny regarding their treatment of the detainees. Per my
request, they produced the letter to the Assistant Division Counsel in Las Vegas.
NCIS did not intend to tape record the interview nor provide any advice of rights as the
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agent was not the subject of any allegation. The Assistant Division Counsel (ADC) in
Las Vegas will be present for the interview. The agent and ADC are prepared to
speak to the NCIS investigator tomorrow. (The call came to me on Monday, I spoke
with NCIS on Tuesday.)
Even though there is no allegation against the agent, I thought someone in Inspection
should know its going on. I am sorry for bothering you with it but I didn't know who
else to contact. If you could forward my email to the appropriate unit or person, I
would appreciate it. My telephone number is below. Thank you for your assistance.
IAssistant Genera~ Counsel
National Security Law Branch
Counter Terrorism Law Unit 1
LX1" ~ I
SENSITIVE BUT UNCLASSIFIED
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