RUTHFULLY YOURS

The jury that acquitted Noor Salman of aiding and abetting her husband’s slaughter at the Pulse nightclub believed she was aware of what her husband was planning, but based on the detailed jury instructions and the nature of the evidence they were presented, they had no choice but to deliver a “not guilty” verdict.  We know this now because the Orlando Sentinel received a statement from the foreman, which is presented in its entirety below.  What leaped out at me was a single sentence criticizing the FBI, that comes 294 words into the statement.

I wish that the FBI had recorded their interviews with Ms. Salman as there were several significant inconsistencies with the written summaries of her statements.

Many readers may recall from the FBI’s handling of the Hillary Clinton email scandal that no recordings were made of the FBI’s interview with her (or with any other witnesses, for that matter).  This is because the only record of subject interviews that the FBI makes is Form 302s, notes prepared by an agent.

Readers may also recall that according to two investigative reporters, Sara Carter and Mike Cernovich, fired FBI deputy director Andrew McCabe has been accused of asking FBI agents to alter 302 reports.  It is not clear if this accusation was part of the inspector general’s report that led to McCabe’s firing, nor is it clear that it actually happened.

What matters to me is the ridiculous policy of not recording the actual interviews, and instead relying on the integrity, skill, and diligence of FBI agents in faithfully recording everything of any relevance that took place during an interview.  Sometimes, the pacing and tone of voice of a subject may have great relevance, for example, and written notes cannot possibly fully reflect the reality of the situation.

Relying on Form 302s made sense only in the era when recording an interview was impossible or difficult owing to technology limits.  But now that a pocket cell phone can record interviews almost effortlessly, there is no justification of ceding to the FBI the task of writing up what an agent thinks (or wishes) was said.

Civil libertarian icon Harvey Silverglate is scathing about this practice:

Instead of electronically recording its interviews and interrogations, the FBI’s policy is to rely on agents’ typewritten “section 302 reports,” crafted to reflect the supposed substance of the exchange. At such sessions, one agent takes notes by hand while the second agent – in the traditional two-agent FBI interviewing team – conducts the interview/interrogation.  Tape recordings are almost never done because such recordation is – believe it or not – against formal written FBI policy.  Therefore, the 302 report becomes the sole arbiter of what was, and was not, said; moreover, as we will see below, any interviewee who contests its accuracy risks prosecution. Hence, a potential witness’ script is written – and not necessarily by the witness himself – the moment he opens his mouth in the presence of an agent.

On its face, and in an era where digital recording has become ubiquitous, there seems to be little justification for a policy of not recording interviews.  Paul K. Charlton, a now–former US Attorney in Arizona, certainly thought so when he broke ranks and ordered the mandatory recording of any statements from an investigative target in cases undertaken by his office.  Charlton’s policy was resisted, and he was fired soon after instituting it.  The FBI’s general counsel’s office produced an internal memorandum (PDF), later made public by the New York Times, listing four separate justifications for the non-recording policy.  Two of these arguments, it turns out, are weak, a third is laughably weak, and a fourth is terrifying in its practical implications for the fair, and truthful, functioning of the federal system of criminal justice.

I urge readers to read the entire Silverglate article on Forbes.com.  If there is any logical reason in the public interest (as opposed to the FBI’s institutional interest) why recordings should not be made, I cannot think of it.

I do not think it is an overstatement to say the FBI has forfeited the presumption of absolute and thoroughgoing integrity now that its second-in-command has been fired for dishonesty, and so the practice should be changed as soon as possible to recording and storing every singles interview conducted by FBI agents.  Perhaps President Trump or A.G. Sessions can instruct FBI director Wray to make this policy change.

Here is the entire statement of the jury foreman provided to the Orlando Sentinel

As foreperson of the jury in the Noor Salman trial I felt it important that I present a juror’s perspective of the verdicts. I am giving you my perspective, and not speaking for the entire jury. My initial inclination was not to communicate with the news media at all, however once I returned home a watched the news coverage of the reactions to the verdicts I felt compelled to at least clarify several misconceptions.

First, I want to express my deepest sympathy to family and friends of the victims of this senseless tragedy. I understand the desire to hold someone accountable for this heinous act of violence. Omar Mateen is dead. He cannot be punished. It is only logical the world would look next to Noor Salman.

These past few days have been very difficult. We listened carefully to opening arguments, testimonies from both prosecution and defense witnesses, viewed many exhibits and heard closing statements. We received many pages of documentation from the court outlining very specific instructions related to the charges and how we should apply the law. We used these detailed instructions, our courtroom notes, and all evidence presented by both sides in our deliberations.

Having said that, I want to make several things very clear. A verdict of not guilty did NOT mean that we thought Noor Salman was unaware of what Omar Mateen was planning to do. On the contrary we were convinced she did know. She may not have known what day, or what location, but she knew. However, we were not tasked with deciding if she was aware of a potential attack. The charges were aiding and abetting and obstruction of justice. I felt the both the prosecution and the defense did an excellent job presenting their case. I wish that the FBI had recorded their interviews with Ms. Salman as there were several significant inconsistencies with the written summaries of her statements. The bottom line is that, based on the letter of the law, and the detailed instructions provided by the court, we were presented with no option but to return a verdict of not guilty.