
How the F.B.I. Can Detain, Render and Threaten Without Risk - rbcgerard
http://www.nytimes.com/2015/11/03/opinion/how-the-fbi-can-detain-render-and-threaten-without-risk.html?_r=0
======
dccoolgai
Advice from my father-in-law, who is a prominent attorney: "Never, ever talk
to the FBI without a lawyer - even if you want to help them as a witness...
because if they don't like the truth you're telling them, they can (and often
do) say you lied to them which is a federal offense. If you have your
attorney, they at least know there is a credible witness present who is
keeping track of who said what."

~~~
ams6110
This is good advice for talking to any law enforcement really. They are not on
your side if they are asking you questions.

~~~
mox1
Well this is especially (aka more) important when talking to a "Federal
Agent". This can be US Marshals, Secret Service, Fish and Wildlife management,
DEA, etc. (if you find yourself in this situation ask the person if they are
an "1811" job series). Lying to a federal agent is always an actual felony (18
U.S.C. SECTION 1001).

Lying to a local police officer, state patrol is not always a crime (local,
state laws).

~~~
jsprogrammer
Don't lie?

FBI would need to prove a lie anyway. Not the easiest thing.

Edit: Some of these responses seem to be assuming "Don't lie" is the logical
complement of "tell the truth". That is not the case.

Anyway, "tell the truth" is not a _real_ strategy. That is: the sentence is
essentially meaningless. We already know that _actual_ truth is impossible to
capture.

~~~
bmelton
So, you tell them the truth, and say "Sorry officer, I wasn't in town that
day," only they later find out that there's an eyewitness who says that you
were in town that day, and your credit card purchases show you buying a cup of
coffee a few blocks from where the eyewitness saw you.

It doesn't matter that the eyewitness was mistaken, and just saw someone who
looked like you who drove a similar looking vehicle, or that the purchase was
made by your wife who was borrowing your credit card, because that coffee shop
didn't have security cameras proving one way or the other.

At the end of the day, you're looked at as guilty, for a time at least, and
possibly forever. You have to waste your every spare dollar hiring a defense
attorney to prove your innocence. You have to fend off mobs of social justice
warriors who have ruined your reputation on the internet and real life, who
may have lowered your business' Yelp score to approximately zero. You have to
find a new job, because your old one fired you once you were indicted, and the
newspapers justified them by placing your picture on the front page as the
guilty party, but only printing the retraction months later on page 18.

And this is of course a scenario predicated on the notion that your attorney
is able to actually get you found innocent, and you aren't further hindered by
spending decades in prison for a crime you didn't commit.

~~~
jsprogrammer
Hmm. I didn't say "tell the truth". I said "Don't lie". You may construe that
however you want, I guess.

I don't see how all of what you described couldn't also happen if you just
didn't say anything. The difference would be that _you now have no
contradictory statements or evidence_.

~~~
ergothus
If you've made no statements, you can't be charged with lying (whether the
charge is actually true or not), unless you say they lie about you making
statements.

------
rayiner
Skip the article and just read the opinion:
[https://www.cadc.uscourts.gov/internet/opinions.nsf/E8CAF3B0...](https://www.cadc.uscourts.gov/internet/opinions.nsf/E8CAF3B08FAA9E8185257EE7004E2D02/$file/14-5194.pdf).

The case here decides a specific issue: whether a _Bivens_ action for money
damages is available when the government violates a Constitutional right of a
U.S. citizen abroad in a terrorism investigation. _Bivens_ is basically a
last-ditch option where a tort cause of action is created when there is no
other remedy for a Constitutional violation:
[https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Ag...](https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Agents).
But because it's a totally judicially-created construct, the Supreme Court has
warned caution in expanding it to new contexts.

The opinion does not say that it is _legal_ for the Government to do what Mr.
Meshal alleges it did. The question is whether Mr. Meshal can get money from
the Government for violating his rights.

~~~
makomk
So it's not legal, but there's nothing you can do to stop them? That doesn't
offer much in the way of reassurance to the people being tortured at the
request of the FBI.

~~~
rayiner
If you are being illegally detained, you can file for a writ of _habeas
corpus._ In contrast, _Bivens_ is about getting money damages if you suffered
illegal detainment in the past.

The scope of _habeas corpus_ (which the Supreme Court has held _does_ apply to
U.S. citizens detained abroad) is broader than that of _Bivens_ because the
former is explicitly mentioned in the Constitution, and the latter is a
relatively recent judge-made construct.

~~~
dragonwriter
> If you are being illegally detained, you can file for a writ of habeas
> corpus.

If you are being illegally detained, its not entirely unlikely you will also
be illegally denied the _opportunity_ to file for a writ of habeas corpus; if
you are extremely lucky, someone who _isn 't_ being illegally deprived of
their rights might figure out that you are being illegally detained and file
for the writ on your behalf. But, you know, when the government's illegally
detaining people, illegally denying them access to counsel, and illegally
denying them access to the courts, they generally aren't also advertising the
fact of that detention of those particular individuals so that other people
can intervene to do something about it.

The lack of effective after-the-fact accountability, both personal and
institutional, for such violations is a serious problem which makes them more
likely to be continued or repeated. The availability of the writ of _habeas
corpus_ to terminate the unlawful detention is obviously necessary, but nearly
equally obviously insufficient.

~~~
vox_mollis
Yup. I'm consistently amazed at the law enforcement apologists who
vociferously argue about one's legal options in circumstances where law
enforcement is _already_ conducting itself illegally.

Meta: I understand that HN encompasses far, far more than classical hacker
culture, but the pro-authoritarian drift of this community is really becoming
apparent.

~~~
rayiner
A few _Bivens_ lawsuits isn't going to deter one whit an FBI that's already
doing things that illegal. All it will do is get the judiciary to burn
institutional capital on what is fundamentally a political issue.

There is a big difference between saying that the courts are not the right way
to fix the problem and saying that what the FBI is doing is not a problem at
all. Getting the courts involved in these foreign national security issues
undermines the institutional capital of the judiciary. It makes it more likely
that the government will get used to ignoring court authority when it comes to
core domestic functions.

~~~
mindslight
> _Getting the courts involved in these foreign national security issues
> undermines the institutional capital of the judiciary._

The courts shirking justice when LEOs transgress undermines their
institutional capital with the only group that should actually matter - the
people.

When "law enforcement" can routinely violate the law yet not be charged and
the victims not made whole, _equal protection_ has gone out the window. Why
should anyone respect a "court" that simply functions as a rubber stamp for
government activities?

~~~
rayiner
If "the people" cared about LEOs violating the rights of accused criminals and
terrorists, they'd stop voting for hard-line authoritarians that promise to be
tough on crime/terrorism. Instead, they vote for them at all levels of
government. Even Obama gained a lot of popularity in his second campaign for
being the guy who put a bullet in the head of Osama bin Laden.

~~~
jdc
I doubt the pro-Republic view folds quite so easily.

------
late2part
A number of years ago I did consulting work for a mid sized company. 2-5 years
later, my employers's front office admin called me and said "2 Gentleman from
'Dog' are here to see you." I called these gentlemen from Dog, and found that
they were from the DOJ, not Dog or D.O.G. And they were really from FBI but
apparently DOJ sounds better. They started by asking me about the company, and
they mis-stated the name, apparently intentionally.

After listening to their questions, I said "Gentlemen, I will have my attorney
call you, he will arrange everything."

These magic words, they stopped asking questions. He setup a conference call
some weeks later, and they interrogated me left and right and up and down.
They kept mis-stating things that I had to correct, they kept inferring malice
where none was.

I had nothing to hide, but they were both ignorant and manipulative.

After they harassed the company I'd done work for 3-6 months, costing the exec
they were after something like $100k+ in legal fees, they sent a letter to the
exec saying they were ending their investigation.

Don't talk to the police. Ask them to put their questions in writing, hire an
attorney, or just ignore them.

I was polite, and they didn't attempt to force me to answer.

Had I actually been at work that day (I was working from home) I would have
come up and seen two cop-looking guys with guns and badges, I still feel I
would have done the same thing, but it would have been harder.

You can't watch this enough:
[https://www.youtube.com/watch?v=6wXkI4t7nuc](https://www.youtube.com/watch?v=6wXkI4t7nuc)

------
mercurialshark
The author and title confuse the issue at hand. The subject, a US citizen,
travelled abroad under his own free will. The Due Process Clause of the
Constitution only applies domestically. Had the FBI detained him on US soil
and rendered him to foreign entities, that would trigger due process scrutiny.

Being that he was already in Somalia, the FBI can coordinate with host
countries (and intelligence agencies) to interrogate individuals. Not only is
the FBI not obligated to return him to the US, it's by no means obvious that
they can forcibly extradite, even if they had wanted him returned to the US.
Sure - they could request (as the State Department and FBI do all the time) -
but that's a different issue.

Disclaimer: I'm not saying it's good, just that the issues (and therefore the
author's conclusions) are presented inaccurately.

------
mtgx
Although I think this is still mostly a decades-old systemic issue, I think
Obama has been a _huge_ factor in making this problem worse.

Every time there was an abuse, he has defended the crimes and the criminals,
whether it was the FBI, CIA, or NSA.

Bush administrations' crimes? - "We need to move forward"

CIA torture - "We tortured some folks - but you don't actually expect me to
punish anyone for doing it, do you?!"

NSA - "There have been no abuses". Enough said.

Even with the OPM hack, the largest government data breach in US' history,
Obama has tried to push the story under the rug, so it doesn't make his
administration _look bad_ \- or something.

Obama got it wrong. You don't "move forward" by ignoring the problem. You move
forward by admitting the problem exists and then _punishing_ those
responsible. The criminals in the government can't continue to have jobs or
even keep their liberty as if nothing happened, while through their power,
they have destroyed many lives.

~~~
hackuser
It bothers me too. However, I wonder if it's realistic to think a President
will ever fight or hinder the national security or law enforcement
establishment, especially publicly. Off the top of my head, I can't think of
one who has (though they may change the rules, as Obama has), no matter what
they say during campaigns.

Loyalty is the #1 rule of any organization, and publicly turning on your own
subordinates would appear exceptionally disloyal; look at the price De Blasio
paid in NYC for mild criticism of law enforcement. The President has over a
million people working for him/her in the executive branch; he/she is highly
dependent on them to get anything done and done properly. Also, President's
jealously guard their power and authority; they are unlikely to take steps to
significantly reduce it.

I suspect the only remedy will come from outside the executive branch, such as
Congress or the judiciary. (Part of the reason the US has 3 co-equal branches
of government is for situations like this one.)

------
ck2
Same anti-constitutional way the TSA does every day?

BTW the FBI has never, ever, found themselves in the wrong after shooting
someone, apparently they are perfect, infallible human beings.

Not for decades. Because trust them, only they investigate themselves.

------
l3m0ndr0p
The FBI is our version of the Gestapo of Nazi Germany.

~~~
vezzy-fnord
The Geheime Staatspolizei were actually remarkably inefficient, relatively
understaffed, highly bureaucratic and reactive over proactive. The FBI are
significantly more competent, I'd assume.

~~~
akiselev
J. Edgar Hoover took power of the FBI's predecessor in the mid 1920s and was a
contemporary of the Gestapo and early KGB so he probably learned a lot about
how to do and what not to do as a secret police force.

------
yourepowerless
Simply more proof that the laws have become illegitimate tools of power for
the elite and corrupt. American is no longer a democracy in any meaningful
sense of the word, but a tiered society of those inside the halls of power,
given extraordinary and unaccountable powers to detain, torture, murder others
and the meek who suffer such atrocities.

It's laughable and sad anyone appeals to the court system for a remedy when
they simply are a rubber stamp, but what do people expect when secret courts
and NSLs abound?

Voting won't help, legal redress won't help, what then can you do?

~~~
Balgair
I know to what you allude, massed rebellion, but I really think that is not
the answer. Look at the Tea Party for an example of how voting still works and
really well. Eric Cantor, the former House Majority Leader, was 'sniped' in a
primary vote: To quote from wikipedia: "In the June 10, 2014, Republican
primary, despite internal campaign polls placing him 30 points ahead of his
opponent[59] and his spending advantage (Cantor outspent his opponent 40 to
1),[60] Cantor lost to Tea Party candidate Dave Brat in a major upset,
44.5%–55.5%. This made him the first sitting House majority leader to lose a
primary since the position was created in 1899.[61][62][63][64] His loss in
the primary was described by the Los Angeles Times as "one of the greatest
political upsets of modern times."
([https://en.wikipedia.org/wiki/Eric_Cantor#2014_Republican_pr...](https://en.wikipedia.org/wiki/Eric_Cantor#2014_Republican_primary_and_resignation)).

What more can be said? YOUR VOTE COUNTS!

EDIT: Sorry to derail the comment thread on the article.

~~~
chimeracoder
> Look at the Tea Party for an example of how voting still works and really
> well. Eric Cantor, the former House Majority Leader, was 'sniped' in a
> primary vote

> What more can be said? YOUR VOTE COUNTS!

Except... the Tea Party has failed rather miserably on most of their core
objectives, particularly their single biggest one: repealing Obamacare.

Over the last five years, we've had some legislation passed that the Tea Party
was happy about, but most of it is right in line with the preexisting core
Republican platform. The Tea Party candidates haven't done a great job of
preserving their own careers - Sarah Palin is a no-name outside Republican
circles at this point, Michelle Bachmann left Congress, and Rand Paul's best
successes have been when he _strays_ from the Tea Party line.

They've done a good job of making noise so that people know their existence,
and they've done a good job of making themselves a force within the Republican
party, but arguably, they've worked _against_ their own interests more than
they've advanced their agenda by helping to decrease the relevance and/or
power of the Republican party[0]. Much as I don't like Boehner, the fact that
he had to step down is a symptom of the deepening problems that the Republican
party has, not a symbol of the success of the Tea Party.

The Tea Party makes for a great foil to the Democrats, which makes it easy for
the Democrats to capitalize on a fear of the tea party in their own campaigns.
The Tea Party cost the Republicans the Senate in 2010, and while they didn't
cost the Republicans the House, I maintain that the Republicans succeeded
_despite_ the efforts of the Tea Party, not because of it[1].

[0] Look at how they cost the Republicans the senate race in Delaware and
nearly lost Alaska as well, both of which were previously sure wins for the
GOP.

[1] Oh, let's not forget about Olympia Snowe, whose decision not to run for
re-election was influenced by the threats of a primary challenge from the
right. Snowe ended up being replaced by King, who caucuses with the Democrats.

~~~
burkaman
It doesn't matter what the Tea Party has done, the point is that they won a
bunch of elections against way more established politicians.

The candidate with the most votes wins, not the most powerful one or the one
with the best ideas.

~~~
chimeracoder
> It doesn't matter what the Tea Party has done, the point is that they won a
> bunch of elections against way more established politicians.

Actually, it does matter, because accomplishing policy goals is the point, not
electing candidates that (claim to) support the name of an ad-hoc 'party'.

If the Tea Party is succeeding only in electing candidates who claim to belong
to the Tea Party but don't actually advance the Tea Party agenda (either
because they don't actually care to or because they're unable to), that's a
failure.

