FBI Botched Interrogation of Former NSA Contractor Accused of Stealing Secrets

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 huge cache of classified documents, a federal judge this month agreed to toss out statements made by the contractor, Harold “Hal” Martin, on the basis that FBI agents failed to Mirandize him properly during four-hour interrogation, even though the suspect was not under arrest at the time.

Charged with 20 counts of willful retention of national defense information and theft of government property, Martin, 54, was arrested following a search of his Glen Burnie, Maryland, residence on Aug. 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.”

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According to a ruling filed two weeks ago, Martin’s attorneys have argued to suppress virtually all evidence collected by investigators, including the fruits of the FBI search of his home. However, a judge denied all but one motion—to suppress Martin’s statements during the Aug. 27 search.

The ruling, issued by Judge Richard D. Bennett in the U.S. District Court in Baltimore, was first reported by Politico.

While Martin was not under arrest at the time and was told he could leave at any time, the judge found that various factors during his interrogation contributed to an overall atmosphere in which any reasonable person would have believed themselves detained. Contributing to this belief is the fact that Martin’s movements in his own home were “significantly restricted” during the lengthy interrogation, and the fact that SWAT agents at the outset of the raid forced Martin to the ground at gunpoint and handcuffed him.

During the interrogation, Martin was at one pointed 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 ordeal, allowed only sixty seconds to speak with her.

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“The agents never gave [Martin] Miranda warnings,” the judge wrote.

The judge cited a 2013 case in which a man was held in “custodial interrogation,” despite not being under arrest. The man’s 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, to have an attorney present during questioning, and so on) even though he was not under arrest at the time.

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“That the agents told the Defendant that he was not under arrest, was free to leave, and that his participation was voluntary did not render his interrogation noncustodial,” the judge in Martin’s case wrote. Accordingly, Martin’s statements provided the day of the raid are no longer admissible in court.

However, the FBI’s error is unlikely to have much impact on the case. The judge refused to toss out any of the evidence found inside Martin’s home or inside the trunk of his car, as well as evidence provided by Twitter, which Martin unsuccessfully argued was gotten with a warrant obtained by the FBI in bad faith.

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Martin’s judge notes that even in cases where the validity of a search warrant is later called into question, evidence may still be admissible unless the grounds for the warrant are so obviously deficient that “no officer could presume it to be valid, or when it’s shown that a judge has been misled by law enforcement or is blatantly biased.

The judge wrote that Martin’s Twitter data was obtained only after messages surfaced in which he requested a meeting with another individual whose identity remains secret. A message from Martin saying, “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.

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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, or “zero day,” created for or purchased by the NSA. In this explanation, Martin may have believed the exploit would be worthless in three weeks time, potentially because it was would be used or otherwise exposed. (The value of a zero-day exploit, which can cost up to millions of dollars, is significantly reduced once used, particularly if the target is a foreign government that can reverse engineering the exploit.)

Due to redactions, it’s not clear with whom Martin was communicating during this exchange. The timeline offered by the judge, however, suggests it was not a known Shadowbrokers account. Whether the account Martin spoke with has been linked to the Shadowbrokers in a way that’s not public is also unclear.

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Martin’s legal team also sought to suppress 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.”

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

[Politico]

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Dell Cameron

Privacy, security, tech policy | Got a tip? Email: dell@gizmodo.com | Send me encrypted texts using Signal: (202)556-0846

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