Today In "Shut Up, Moron": Terrorism Suspects Learn FBI May Not Be Trying To Just Help Them Out After All

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11 Responses

  1. FYI, your link is to title 47, 1001, not title 18, 1001. Proper link here.

    Now, maybe it's just me, but I get confused by this. How can they make it a law to lie to an investigator if you're not under oath? And when you set down to talk to the investigators, do they inform you up front that anything non-factual statement that you make can put you in jail? Somehow I doubt that (or more people would actually "clam up").

    I do think your advice — "Just shut up" — is good, but I just wonder how we've gotten into a world where it's become as necessary as it is. We've gone from "don't admit to a crime" to "don't deny a crime because they'll assume that's a lie, since they already assume you're guilty."

  2. Andrew T says:

    Everything you say here makes sense. But how should someone handle situations where the police/FBI/whoever wants to talk to them as a witness to a crime, or as a victim of one?

    Maybe your answer will be "never talk to the police/feds without a lawyer's help, regardless of the context". But assuming that there are some situations where you should talk to them solo, how can a non-lawyer tell the difference? I'm sure we can come up with scenarios where a person thinks they are a witness to a crime whereas the police think they might be the perp.

  3. Mike says:

    Andrew T: Witness today; suspect tomorrow. After all, if you were present to "witness," the offense, who's to say you didn't do it?

  4. @Andrew T: It's not yet illegal to say to a cop, "Sorry; I'd rather not talk about it."

  5. Matt Raft says:

    I was waiting for an intelligent, reasonable post about the Zazi situation. Ken, you did not disappoint.

    I am involved with several Muslim lawyer groups. We put on "Know Your Rights" workshops that basically impart the following advice: 1) "Don't talk to law enforcement without a lawyer"; and 2) "Yes, we know it's considered rude in Middle Eastern culture not to invite someone in your house who just wants to talk to you, but when it's the FBI, it's okay to close the door (assuming there's no warrant)."

    For the next Know Your Rights workshop, I'm going to give the advocacy groups a link to this post. I do employment/discrimination law in California, but from what I hear at these workshops, I'm fascinated by law enforcement's seemingly endless desire to go after Muslims who voluntarily offer information.

    The best part? The FBI is now complaining that Muslim advocacy groups are preventing them from gathering information. In other words, the FBI has the gall to wonder why Muslims won't cooperate with them after they lock up and charge the ones who do cooperate.

  6. JJW says:

    So, if a police officer says to me "Sir, do you know what time it is", I should say "Sorry, officer, I can't answer that question". If I am taken to the police station, every question should be answered with "My name is JJW. I live at 123 Main Street." Sort of the equivalent of name, rank and serial number – the only thing that a (true) POW is required to give.
    How are police supposed to jobs if EVERYONE refuses to talk to them?

  7. Ken says:

    FYI, your link is to title 47, 1001, not title 18, 1001. Proper link here.

    Fixed. Thanks!

    Now, maybe it’s just me, but I get confused by this. How can they make it a law to lie to an investigator if you’re not under oath? And when you set down to talk to the investigators, do they inform you up front that anything non-factual statement that you make can put you in jail? Somehow I doubt that (or more people would actually “clam up”).

    Many, many documents you sign for the feds have a Section 1001 warning. No, most of the time the cops won't warn you. The theory is that a lie to the government causes harm that should be punishable. Note that the Supreme Court has ruled that the feds can prosecute you even if your answer was a mere exculpatory no — in other words, if they merely asked "did you do it" and you said "no." That's U.S. v. Brogan. I actually had a client prosecuted for that. They gathered all the evidence they needed to show that he had hacked somebody's voice mail, visited him, asked him if he did it, and noted that he said "no", then charged him with hacking and 1001. That's chickenshit.

  8. Ken says:

    I'll address two related questions:

    Everything you say here makes sense. But how should someone handle situations where the police/FBI/whoever wants to talk to them as a witness to a crime, or as a victim of one?

    Maybe your answer will be “never talk to the police/feds without a lawyer’s help, regardless of the context”. But assuming that there are some situations where you should talk to them solo, how can a non-lawyer tell the difference? I’m sure we can come up with scenarios where a person thinks they are a witness to a crime whereas the police think they might be the perp.

    So, if a police officer says to me “Sir, do you know what time it is”, I should say “Sorry, officer, I can’t answer that question”. If I am taken to the police station, every question should be answered with “My name is JJW. I live at 123 Main Street.” Sort of the equivalent of name, rank and serial number – the only thing that a (true) POW is required to give.
    How are police supposed to jobs if EVERYONE refuses to talk to them?

    No, not every interaction with police is ominous. Sometimes common sense can tell anyone that the questions are benign. But here are some rules of thumb:

    1. If they want you to come to the police station to answer questions, it's foolish to assume it's benign.
    2. If they can't define in a few words exactly what they want to know ("we're trying to find out if anyone saw the accident" or "we're trying to find Jimmy Jo-Bob"), but instead say things like "we need to clear up a few things," it's foolish to assume it's benign.
    3. If you know you did anything wrong, or have the least reason to believe anyone thinks you did anything wrong, or if you are closely associated with someone who did something wrong, it's foolish to believe it is benign.

    Lawyers can ease this a bit. Under some circumstances, a lawyer can get government assurance that a client is merely a witness. The value of that assurance depends on a wide variety of factors.

    But let's be real — coming in to answer questions about whether you are associated with terrorist organizations is not close to the line.

  9. Scott Jacobs says:

    And if a judge's immunization of your testimony before a Grand Jury isn't worth a damn, why would I think for a moment that any assurance made that I'm "just a witness" or a promise of limited use immunity is worth a damn either?

  10. Ken says:

    Scott, immunization may be worth a damn in some circumstances. When you've been acquitted of terrorism charges and an AUSA has a major hard-on for you, I think it's probably not worth a damn in the long run; they'll find a way to use it against you. And remember the other component of the situation — the defendant/witness is claiming that the facts the government wants him to admit to are not true.

    As to "just a witness" assurances – please note that I said "under some circumstances." Those circumstances would be (1) in some sorts of cases where the rules do not go out the window, (2) extended from a prosecutor I know and trust, who cares about his/her reputation, (3) in a situation where the evidence I see is consistent with the person being only a witness. And even then I advise the client of the limitations of that assurance, and the risk.

  11. Windypundit says:

    One of the more disgusting examples of this was a case where the feds had flipped a crooked building inspector and had him go around and take bribes from a bunch of building owners. Then the feds interviewed the building owners—who were the victims of extortion, remember—and asked them if they'd ever bribed a building inspector. When they said "no", the feds nabbed them for the false statement. I guess we should be thankful the feds didn't flip a rapist…