by Peter Maass, The Intercept:
IN LATE JANUARY, George Papadopoulos did what a lot of Americans do when FBI agents ask for a few minutes of their time — he agreed to talk. It’s a decision he likely regrets, because in October the former adviser to President Donald Trump’s election campaign pleaded guilty to making false statements to the FBI. He is now a key figure in special counsel Robert Mueller’s investigation of Russian interference in the 2016 election.
The court files in the Papadopoulos case say little about the conditions of his chat with the two FBI agents. We don’t know how long it lasted, where in Chicago it took place, what its tenor was, or whether Papadopoulos was aware the agents probably knew the answers to most questions they asked. One thing, though, is clear: Papadopoulos engaged in a form of self-harming behavior that defense lawyers always advise against — saying “yes” when a pair of friendly FBI agents knock on your door and ask to chat.
His interrogation was recorded but the transcript has not been released, so it’s impossible to know precisely what the FBI agents might have said that gave Papadopoulos the impression it would be in his interests to talk and to lie. But in another high-profile case, involving former NSA contractor Reality Winner, the government released a transcript of the interrogation. It provides a verbatim example — and a rare example — of how FBI agents ingratiate themselves with unsuspecting suspects and intimidate them into saying things that bring doom upon them.
The interrogations of Winner and Papadopoulos were what the FBI likes to call “noncustodial,” so they were not read their Miranda rights — because, the FBI claims, they were not arrested or detained at the time of the interrogation. (Winner’s lawyers have argued in court filings that she was effectively detained and should have been Mirandized.) By avoiding the obligation to inform suspects of their right to a lawyer and the right to stay silent, the FBI makes it easier to get Americans to say things — whether truths or lies — that will be used against them. The Fifth Amendment protects people from testifying against themselves, of course, and the Sixth Amendment provides the right to legal counsel, but law enforcement authorities get around these constitutional protections by contending that some interrogations are noncustodial. The result is that suspects are enticed into talking before they realize the jeopardy they face and the rights they possess.
“Because warnings are only required prior to custodial interrogation, one way to minimize the impact of Miranda on investigations is to try to conduct interrogations whenever possible in noncustodial settings (such as the suspect’s home or on the street, without arrest-like restraints),” notes an article in Police Magazine, which caters to the law enforcement community. The article bore the headline “How to talk to suspects without Mirandizing.”
There’s a problem with that kind of advice — the presence of law enforcement officers can turn homes and sidewalks into coercive environments, making the distinction between “custodial” and “noncustodial” a murky if not artificial one. The Winner transcript, which was released in September, offers an unusual look inside one of these home interrogations. In its early we’re-on-your-side phase, the interrogation pivoted on Winner’s love of dogs and her CrossFit workouts.
ABOUT A DOZEN FBI agents arrived at Winner’s rented house in Augusta, Georgia, on the afternoon of June 3, as she returned from grocery shopping.
“The reason we’re here today is that we have a search warrant for your house,” one of the agents told her, according to the transcript.
“OK,” she replied.
“All right,” Special Agent Justin Garrick said. “Do you know what this might be about?”
“I have no idea,” Winner replied.
“OK, this is about possible mishandling of classified information.”
“Oh my goodness,” Winner responded.
The agents soft-pedalled the reason for their visit. It can be relatively innocuous, in the eyes of the law, to mishandle classified information — it might not even be a crime, if the information is not too serious and the reasons for mishandling it not too nefarious. But this wasn’t, in the eyes of the FBI, an innocuous case. Garrick, who asked most of the questions, is a specialist in espionage and counterintelligence, according to court documents. The government’s charging documents make clear that at the time of her interrogation, Winner was suspected of what the government was treating (probably cynically) as a very serious offense that jeopardized national security. The interrogation ended with Winner being arrested and charged under the draconian 1917 Espionage Act.
The agents did not mention the Espionage Act while they talked with her. And they did not hint at the possible prison-for-a-decade consequences of what they suspected she had done: mail a classified NSA document to a media outlet. On June 5, the day Winner’s arrest was belatedly announced, The Intercept published a story based on a leaked NSA document detailing Russian attempts at cyberattacks against the U.S. election infrastructure. Though The Intercept has no knowledge of who sent the document, several publications reported that Winner mailed it to The Intercept, which has published a statement about its role in the case.
Her interrogation on June 3 began innocently enough. The first few minutes revolved around making her house safe for agents who would search it, which meant making sure her dog wouldn’t bite anyone, and making sure her guns (she had three) were secured. The conversation then took a decidedly casual turn.
“How long have you had your dog?” Garrick asked.
“She’s actually a foster,” Winner replied. “I’m rehabilitating her so hopefully she can get adopted later on.”
“How old is she?”
“Oh, we don’t really know. She’s one of those.”
“Yeah,” Garrick said. “One of my dogs was a rescue and when I got him … I was the only guy who could touch him.” He later added, “If you can tell, we’re all dog people.”
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