NCIS must record interviews

By: North County Times Opinion staff -

Our view: Military investigators risking their own cases by failing to use yesterday's technology

Seven years into the 21st century, it's long past time for NCIS to catch up to 20th-century technology.

The investigators of the Naval Criminal Investigative Service, the federal agency responsible for investigating sailors and Marines accused of criminal acts, must immediately start recording their interviews and interrogations of witnesses and suspects with something better than a ballpoint pen.

The perils of not doing so are apparent to anyone following the Article 32 hearing of Marine 2nd Lt. Nathan Phan, who stands accused of assaulting three Iraqis in March and April, and making a false official statement regarding one of the incidents. Defense witnesses testified last month that NCIS agents added false material to the statements the agents were collecting from those witnesses while researching the charges against Phan. We may be stuck with a "he said, she said" dispute over what happened in those interviews, and it shouldn't have to be that way.

The disputed testimony in Phan's case has cast a harsh light on the outdated methods NCIS agents use to record those statements. Essentially, NCIS agents write down the statements of the witnesses they are questioning, and then have witnesses initial their own statements. But that leaves far too much room for error or interpretation. At least one witness now says he signed off on an inaccurate statement because he was busy with guard duty in Iraq.

The glaring truth is it didn't have to be this messy. Video cameras have been around for decades, tape recorders even longer, and newer digital devices make recording even easier. There is simply no excuse for military investigators to rely on notebooks and their memories when conducting custodial interviews.

A 2004 study of police experience with recording custodial interrogations by Thomas P. Sullivan of the Northwestern University School of Law convincingly makes the case: The precise words a suspect utters are captured in permanent record. The visual cues of gesture and reaction (often indispensable in evaluating a face-to-face conversation) are available to subsequent juries and judges. Accusations of police misconduct ---- for failing to properly provide Miranda warnings or ignoring requests for a lawyer, for instance ---- can be supported or dismissed almost instantly.

Sure, machines break down and human error can render them useless, but both can be minimized through training and policies that take such inevitable, presumably infrequent mishaps into account. The value of having such a neutral record of an interview or interrogation is priceless.

An NCIS spokesman told North County Times reporter Mark Walker in September that the agency was reviewing its policy of not video- or audiotaping statements it takes from witnesses or suspects.

That answer came in the early days of the prosecution of the so-called "Pendleton 8," seven Camp Pendleton-based Marines and a Navy corpsman who were charged in connection to the slaying of a 52-year-old Iraqi civilian in the village of Hamdania, Iraq. The case against Phan, who wasn't present during that fatal April 26 incident and hasn't been linked to it in any way, nonetheless sprung from the Hamdania investigations. Phan was the commanding officer of the eight platoon members charged in the Hamdania killing, five of whom have pleaded guilty to various charges. Statements written down by NCIS agents pursuing the Hamdania case formed the crux of the assault cases against Phan.

Phan's is the second straight high-profile case against locally based Marines to send up a flare illuminating the unjustifiably antiquated interviewing methods employed by the NCIS. It's long past time for the agency to start properly recording the statements it takes from witnesses and suspects.

After all, if the police departments of Oceanside, Carlsbad and Escondido have all used recording and audiovisual equipment for years, why are the feds so slow to catch up to last century's technology?

Ellie