FBI Botched Interrogation of Suspected NSA Leaker

The house of Harold Thomas Martin III photographed in Glen Burnie, Md., on Oct. 5, 2016. The federal government contractor is accused of stealing highly classified information.

In the case of a former National Security Agency (NSA) contractor accused of stealing a large cache of classified documents, a federal judge this month agreed to toss out statements made by the contractor, Harold Martin, on the basis that federal agents failed to advise him of his Miranda rights while he was held in custody and interrogated for four hours.

Charged with 20 counts of willful retention of national defense information and theft of government property, Marin, 54, was arrested following a search of his Glen Burnie, Maryland, residence on August 27, 2016. There, FBI agents discovered both digital and physical copies of documents that, according to prosecutors, contain classified and top-secret information said to be critical to “a wide variety of national security issues.

According to a memorandum filed two weeks ago, Martin’s attorneys have argued to suppress virtually all of the evidence collected by investigators, including the fruits of the FBI search of his residence. However, a U.S. District judge in Maryland denied all but one motion. A motion to suppress statements made by Martin during the Aug. 27 search has been granted.

The existence of the memo was first reported by Politico.

While Martin was not under arrest at the time, and had been advised as such by the agents present, the judge found that the circumstance of his interrogation created an atmosphere in which any reasonable person would conclude that they were being held in custody. The conditions contributing to this belief include the fact that Martin’s movements in his own home were “significantly restricted during the interrogation,” which lasted four hours, and the fact that Martin was initially handcuffed and forced to lay on the ground by SWAT agents with guns drawn.

In one instance, Martin was prevented from entering his kitchen to retrieve a bottle of water, even though he had asked one of the agents to accompany him. He was also separated from his partner throughout the interrogation and allow only sixty seconds to speak with her.

“The agents never gave [Martin] Miranda warnings,” the memo says.

Among other cases, the judge cited a previous ruling in 2013 case which found a man had been held in “custodial interrogation,” despite not being under arrest, due to the fact that his home had been swarmed by 15-30 officers in the early hours of the morning, whereupon he was interrogated in his basement for three hours. Due to these conditions, it was ruled that the officers should have advised the suspect of his Miranda rights (the right to remain silent, have an attorney present during questioning, etc.)

“That the agents told the Defendant that he was not under arrest, was free to leave, andthat his participation was voluntary did not render his interrogation noncustodial,” the judge in Martin’s case wrote. Accordingly, Martin’s motion to suppress the testimony he provided the officers that day may no longer be used in court.

Unfortunately for Martin, this will likely have little impact on the case against him. The judge refused to toss out the evidence found in his home and the trunk of his car, as well as that obtained via Twitter, which Martin unsuccessfully argued was only obtained after a warrant was granted without probable cause.

In his opinion, the judge notes that even in cases where a search warrant is later found to be invalid, evidence is still admissible unless the basis for the warrant is so obviously deficient that “no officer could presume it to be valid,” or the judge is misled by law enforcement or is blatantly biased.

The judge found that Martin’s Twitter data was obtained after messages were discovered in which he requested a meeting with another suspect or person of interest whose identity and Twitter handle has been redacted from public documents. A message from Martin reading, “shelf life, three weeks,” was reportedly sent hours before a secretive hacking group known as Shadowbrokers exposed a cache of exploits and other tools belonging to a team of NSA-linked hackers known as the Equation Group.

One theory is that when Martin mentioned “shelf life” in what was apparently a Twitter direct message, he was referring to an unpublicized computer exploit—also known as a “zero day”—created for or purchased by the NSA. In this explanation, Martin may have believed the exploit would be useless in three weeks time, potentially because it was going to be used or otherwise exposed publicly. (The value of a zero-day exploit is significantly reduced once used, particularly if the target is a foreign government capable of reverse engineering the exploit.)

It’s unclear who precisely Martin was communicating with in this exchange. The Shadowbrokers’ Twitter account was created after the first dump of NSA-linked tools, meaning that Martin could not have been communicating with that particular account. However, this does not rule out the possibility that he was communicating with a separate account somehow linked to the Shadowbrokers.

Martin also sought to have suppressed evidence obtained through use of a cell-site simulator, a phone tracking device commonly referred to as a “Stingray.” Martin’s argument was based on the 2018 Carpenter v. United States ruling, which found that the collection of cell-site location information—data which allows police to track a suspect’s movements based on cellphone location—constitutes a “search” under the Fourth Amendment, meaning that, generally, a warrant supported by probable cause is required.

As the judge notes, however, the Fourth Circuit of Appeals ruled earlier this year that Carpenter cannot be enforced ex post facto, meaning that cell-site location information (CSLI) obtained with only a court order prior to the Supreme Court decision cannot be ruled retroactively inadmissible. “At the time,” the judge wrote—citing the Fourth Circuit case, U.S. v. Chavez—the government was not considered in violation of the Fourth Amendment when it obtained CSLI “from a service provider without a warrant.”

Martin’s trial is scheduled to begin on June 17, 2019, in the U.S. District Court for the District of Maryland.


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