This email, including a forwarded chain of emails, says that the CTD, or perhaps OGC, should advise personnel pre-deployment of their responsibility to report actions that may be a violation of law and/or prescribed procedure. File name: DOJOIG001700.
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FOGLE, rqNI M. (INSD) (FBI)
From: THOMPSON, DONALD '!I/.JR (RH) (FBI)
Sent: Wednesday, July 28, 20041 :38 PM
To: FOGLE, TONI M. (INSD) (FBI)
Subject: RE: legal questions
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ALL INFORl,rATION CONTA I ~m D
HERE IN I S l~J C L AS S IF I ED
DATE 03- 1 3- 2009 BY 65179 D}lli/1sc
Toni, the responsible operational entity, in this case, CTD, should be advising any personnel,
predeployment, of their affirmative responsibility to report any actions they observe that may be a violation of the
law and/or prescribed procedure. If not CTD, perhaps OGC needs to put out guidance along these lines more
broadly. I will raise this issue accordingly.
-----Original Message-----
From: FOGLE, TONI M. (INSD) (FBI)
Sent: Wednesday,July 28, 2004 1:26 PM
To: THOMPSON, DONALD W. JR (RH) (FBI)
SUbject: FW: legal questions
SENSITIVE BUT UNCLASSIFIED
NON-RECORD
I think we're in a trick bag, I'll let you know what happens. I'd suggest we provide agents some warning.
Forewarned is forearmed(?)
----Original Message-----
From~ I(OGC) (FBI)
Sent: Wednesday, July 28, 2004 1
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To: FOGLE, TONI M. (INSD) (FBI)i=. .....-__.....lI(OGC) (FBI)~I.....- IcOGC) (FBI)
Cc: GULYA~SY, ANNE M. (OGC) (FBI
Subject: RE: legal questions
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I can run that type of hypothetical past DOJ. But as I've said my experience with them is
that they won't authorize it. I've had this argument with them before during the Office of
Special Counsel's Waco investigation, especially after the investigation turned criminal.
If they even sensed that our employee (although technically not a target) in any way may
have engaged in wrongdoing which would put them outside the scope of their
employment, they wouldn't authorize it.
I'm happy to try again.
THIS IS A PRIVILEGED ATTORNEY-CLlENTJATTORNEYWORK PRODUCT COMMUNICATION.
0'
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I IUnit Chief
Civil Litigation Unit II
Office of the General Counsel
FBI Headguarters, Rm. 7947 ,I I
11/9/2004
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DOJOIG 001700
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----Original Message-----
From: FOGLE, TONI M. (INSD) (FBI)
~Bt: Wednesday, Ju", 2f(J~gi (~iM_M 1(OGC) (FBI);IL...- IcOGC)
Ce: GULYASSY, ANNE M. (OGC) (FBI)
Subject: RE: legal questions
UNCLASSIFIED
NON-RECORD
Yes - there is the potential of being charged with criminal responsibility.
An example....
Army CID wants to interview a couple of agents who may have information regarding allegations of
prisoner abuse. We know they at least had contact with that prisoner. Their level of activity I
information, observation could potentially subject them to criminal responsibility if they acted and/or
failed to act. I'm not saying they did (I have no idea since we haven't interviewed them) -- I just don't
want to see them inadvertently exposed .
I have been told the allegations of abuse have not been made against them. If the allegations had
been made against them, it would be one of my cases -- with all the appropriate criminal advice of
rights being given.
;;~-~~Iginal Message----- IeOGC) (FBI)
Sent: Wednesday, July 28, 2004..J..2..:.1olol5.J....P..l.:.'ML...- _
To:1 IeOGC) (FBI);I kOGC) (FBI); FOGLE, TONI M. (INSD)
(FBI)
Cc: GULYASSY, ANNEM. (OGC) (FBI)
Subject: RE: legal questions
UNCLASSIFIED
NON-RECORD
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Toni -~ Ireferred your second question to me for a response. You are b6
correct in that DOJ currently has a policy of providing emergency interim legal b 7C
representation for agents involved in a critical incident, typically a line-of-duty
discharge, where the SUbject is seriously injured or killed. The CDC/ADCs
and the CLU UCs have a limited atty-c1ient relationship with the agent for the
purpose of obtaining private counsel to represent the agent in a criminal
inquiry into the shooting. The reasoning behind this is that the agent, while
acting within the scope of his or her employment, has become the subject of a
local criminal investigation and thus is in need of immediate representation.
, This is a very unique situation, as DOJ would not normally authorize
representation for an employee who is the subject of a criminal investigation.
In the situation you presented I'm assuming our agents are being interviewed
as witnesses in administrative inquiries? Are they in any way in jeopardy by
subjecting themselves to these interviews? And by that I mean potentially
subjecting themselves to criminal charges. If not, DOJ will not provide
representation .
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I'd be happy to discuss this with you further but based on my experience with
DOJ on a variety of representation issue, this is not a situation would DOJ
would authorize representation.
I IUnit Chief
Civil Litigation Unit II
Office of the General Counsel
1FBI HeadQUarte~s, Rm. 7947
THIS IS A PRIVILEGED ATTORNEY-CLIENT/ATTORNEY WORK PRODUCT
COMMUNICATION.
-----Original Message-----
From~ kOGC) (FBI)
Sent: Tuesday, July 27,2004 12:11 p~
Tol I(OGC) (FBI);l___ 1(OGC) (FBI)
Subject: fIN: legal questions
UNCLASSIFIED
NON-RECORD
Please see Toni's second question. It seems like a CLU question to me.
-----Original Message-----
From: FOGLE, TONI M. (INSD) (FBI)
Seqt· TUeSday 1,,1~ 27, 2004 7:5~6....!.A~M..!.._ ....,
To~ J(OGC) (FBI);I IeOGC) (FBI)
ee: THOMPSON, DONALD W. JR (RH) (FBI); MCCRAW, STEVEN C. (INSD) (FBI)
Subject: legal q,uestions
UNCLASSIFIED
NON-RECORD
A couple 'of maybe not so quick questions:
FIRST ISSUE:
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11/9/2004
1) We have to do 180 notifications to individuals under an OPR inquiry -- when the
inquiry exceeds 180 days. Notification is re-issued in 30 day increments after that.
The AD (delegated to me) has to sign off on the legitimacy of the reason for the
extended time within the OPR process. .
Problem - every time we do this (especially with those under very lengthy DOJ OPR
or DOJ OIG inquiries) _. the employees get angry.
I know we're.dolnq these notifications because of BADGE requirements, but with DOJ
;~. matters, do we have the same BADGE obligation we would have in FBI matters?
It doesn't make sense that FBI's agreement should impacUinfluence DOJ -- and that
being said, even though FBI OPR is a conduit for DOJ we have no real control over
them or the timeliness of their actions.
Question - under the BADGE settlement agreement do we (FBI OPR) have to do
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notifications when either DOJ OPR or DQJ OIG has taken jurisdiction over the case?
SECOND ISSUE:
2) The FBI no longer functions with borders and in isolation of other agencies/military.
As such, agents are called upon to be interviewed by other agencies/military in a
"witness" capacity. This is becoming an increasingly frequent event. (Clearly if they
are implicated in wrongdoing we would take the lead in the investigation and would not
make them available for interview.)
My concern is that the FBI seems to look to us (Internal Investigations Section) to
protect these employees from outside influences and to participate in the interview
process. You both know that our client is the Bureau / Director. We aren't in a
position to protect employees, and for us to go out in that capacity may mislead the
employee (which I don't want to do),
OGC at one time allowed agents in the field to utilize CDCs and AD.Cs in a
representative capacity for a limited time (like 24 hours) after a shooting incident -- to
allow time to obtain an attorney through'DOJ - and to provide for some kind of
attomey-c1ient relationship. I'm not sure if this program still exists, I know it was
controversial at the time.
All that being said .- is there any way OGC could consider developing a similar
(outreach) type program where you make attorneys available for protection to
the agent b.eing subjected to an interview?
Thanks in advance for your thoughts in these two areas. T>
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