Your Government in Action

Your Government in Action Outrageous and unnecessary conduct By Stephen P. Prentice October 2000 Every law student can recite Article IV of our Constitution by heart simply because it is one of the most important articles. Remember...


Unlawful conduct -Alaska Airlines connection
Federal agents cannot interview or interrogate people when they know or should know that these people, employees for example, have a company lawyer either on or off premises who is available to counsel them and the company. Federal prosecutors and their agents are required to abide by the ethics rules of the state bar where they are conducting investigations.
This means that prosecutors or agents acting on their behalf cannot interview or interrogate your employees, management, mechanics or office staff, without counsel being present. And, if they do, they are individually subject to sanctions because of their conduct. This is called the McDade Law.
In the ongoing Alaska Airlines investigation, federal agents claim that they were prevented from interrogating mechanics in a timely fashion because of the requirement that they had to contact the mechanics' lawyers and advise them accordingly. Federal agents were blocked at the Alaska Airlines facility in Oakland, CA by company lawyers who represented the employees. Later on, when these employees were served with grand jury subpoenas, attorneys were able to delay appearances by insisting on grants of immunity from prosecution. This immunity, by the way, should include not only criminal prosecution but also FAA certificate action, which may be conveniently left out of any agreement.
The FBI knows very well that early simultaneous interviews of several employees without a lawyer present is most fruitful in providing incriminating information. Under current law, however, it is an unlawful practice and could result in direct disciplinary action against prosecuting attorneys and their agents including those of the DOT.

The McDade law
The McDade law, or more precisely, the "Citizens Protection Act of 1998" (28 USC 530B), was passed by Congress and supported by all the bar associations. It is named for Representative Joseph McDade (R-PA ) who was the victim of an investigation that many believe had run amok. Mr. McDade was subsequently found not guilty. He claimed he was substantially damaged (not surprising) by prosecutors and their agents. Many agree with him.
Another result of this law is to curtail the common police practice of "wiring" an informant with a body mike, called consensual monitoring. This conduct can now lead to disciplinary actions against prosecutors and or their agents in many states.
In addition, interviews with corporate "whistle-blowers" are hampered because of the necessity to include the company lawyer in the interview process. It is very likely that in this FBO case, it would have prevented the raid in question. When a disgruntled employee decides to go to the Feds with testimony of alleged illegal activities at a company, the agents are required to contact company counsel and have him or her present during any interview of the disgruntled employee.
Needless to say, the defense bar praises this law for protecting the right of citizens to have the advice of counsel when being interrogated by government agents. On the other hand, the federal prosecutors and their agents detest it because it prevents their interviewing any employee until counsel is present or consulted.
FAA powers
FAA inspectors have the right, at any time, to inspect, seize, and copy any records they want from an air carrier. They don't need a search warrant or any other authority, much less probable cause. So, the question is asked, "Why not simply ask the FAA to drop by and get what the FBI wanted?" An interesting question that has everything to do with politics and little to do with the merits of any case.
Aircraft records are routinely inspected, copied, and retained by FAA inspectors. There are no secrets in the aircraft maintenance field and there is no reason for raids by FBI agents or other law enforcement agencies to gather evidence. Many have suggested that the only reason for these raids is to raise the political profile of the agencies concerned. Go figure.


The rest of the story
Some six months before this raid, an aircraft operated by the company had crashed due to fuel exhaustion after all aboard were presumed dead or incapacitated. No specific cause for the crash has been found by the NTSB. Many will speculate, but to date there is no finding whatsoever of any negligence on the part of the carrier or anyone else relevant to the accident.

Equal Access to Justice Act
Finally, keep this useful law in mind.
If you can show and it is found that an individual or a company was wrongly targeted and never charged with any substantial crime, there is recourse. A petition can be filed under the Equal Access to Justice Act for damages, including attorney fees. Some companies have recovered in this manner after their business has been damaged by irresponsible and or unnecessary actions of Government agents.
Keep in mind that your only contacts in Government in these matters are the Federal Court Judges, the Magistrates, and your local Congressman. You can also complain to the United States Attorney for the District. Find out who they are, keep their phone, fax and e-mail address handy and don't be afraid to call or write to them and voice your thoughts. They can exert pressure on your behalf - that's what you pay them for!

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