An email, including forwarded emails, regarding the legality of another agency requesting to interview FBI personnel. The author of one of the forwarded emails states that whenever this type of request is made, both the agent and FBI are to be briefed beforehand in writing of the issues to be discussed in the interview. A representative of the bureau is also to be present when the agent is interviewed or testifies. The email states, "by going through this process, we get a clear picture of whether the other agency is investigating out employee and what the employee should be advised of."
Message
FOGLE, TONI M. (INSD) (FBI)
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AL L INFORl·rATION ONT II
HERE IN IS lij~C IF ED
DATE 03 - 1 2-2009 BY 6 51 7 9 rn
From: FOGLE, TONI M. (INSD) (FBI)
Sent: Tuesday, October 05, 2004 1:23 PM
To: I I(lNSD) (FBI);Ir--------I(INSD) (FBI)
Subject: FW: More Military requests coming your way
UNCLASSIFIED
NON-RECORD
Please include his additional info in our precautions provided to interviewees. Let me know when the request
comes in. T>
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-----Original Message-----
From: FOGLE, TONI M. (INSD) (FBI)
Sent: Tuesday, October 05,20041:22 PM b6
TO~ IeOGC) (FBI) b7C
Cc: MERSHON, MARK J. (SF)(FBI); THORNTON, CHARLENE B. (PX) (FBI); GRANT, ROBERT D. (INSD) (FBI)
Subject: RE: More Military requests coming your way
UNCLASSIFIED
NON-RECORD
c=J- You certainly don't need to apologize for misreading, your insight was very helpful. Thanks for the heads b 6
up and thanks again for the additional insight. I'm sharing your analysis with others in my division who have an b 7 C
interest in these matters. T>
;;~-~tinal Message----- IeOGe) (FBI)
Sent: Tuesday, October 05,200411:22 AM
To: FOGLE, TONI M. (INSD) (FBI)
Subject: More Military requests coming your way
UNCLASSIFIED
, NON-RECORD
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You should be getting an email from] lin my office because Army CID is requesting us to
identify any FBI personnel who were present at Abu Garib Prison in Iraq. I also realized that I didn't
actually answer your question appropriately about the difference between a request to interview FBI
personnel from the military or a civilian or foreign law enforcement agency. I apologize for misreading your
email having you read stuff you weren't asking for.
Anytime we get a request from another agency to interview FBI personnel, even a subpoena from local
prosecutors or defense, we feel that we are authorized by prior court decisions to determine exactly what
the other agency wants to speak to the Agent about. Under the Touhy case, a U.S. Supreme Court case
from the 1950's, an agent cannot be held in contempt for not answering a question on the stand when the
FBI has not authorized the Agent to respond. This occurs if the other agency is touching upon informant
information or classified information or sensitive techniques, etc ... The Code of Federal Regulations also
describes this process for obtaining info. from the FBI even with a subpoena. (And it even limits what info.
Federal Prosecutors can release) So, we insist that the other agency brief us on what the agent is going to
be asked (not question by question, but issue by issue) and put it in writing. 'If we have any objections, we
then tell the other agency. The agent is also advised of those issues and the agent is authorized to
respond or not. We also insist on being present when the agent is interviewed or testifies. If the other
agency goes outside those issues, we instruct the agent not to answer until we get the appropriate
authorization. (including in Court and the judge is warned beforehand) By going through this process, we
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get a clear picture of whether the other agency is investigating our employee and what the employee
should be advised of. Ultimately, any interview (not testimony) with another agency is voluntary and the
agent can decline or set whatever conditions the agent feels comfortable with.
At a minimum, any FBI policy-about responding to such requests should include this process. Its justified
not only because it benefits the agents but because the FBI has the opportunity to object to releasing any
sensitive information. I don't know what to tell you about the representation issue. DOJ is being
shortsighted because civil liability is a real possibility in any abuse situation, even for the witnesses, far
more likely than any criminal charges. As such, they should be having civil attorneys speaking to the
agents and reviewing the contingencies so that everyone is forewarned.
I I
N8LB - CTLU 1
LX 1 room 58 217
Outsid-=Jl...- OI
Pager:L I
UNCLASSIFIED
UNCLASSIFIED
UNCLASSIFIED
11/9/2004
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