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Why "Voluntary" Police Interviews Of Middle-eastern Visitors Are Both Wrongful And Ineffective


Monday, Dec. 17, 2001

In the past few months, Attorney General John Ashcroft has proposed or implemented a wide variety of measures aimed at non-citizens present in the United States. His approach to finding terrorists has been to cast a wide net - detaining hundreds of persons in secrecy, listening in on their conversations with attorneys, and creating secret military tribunals without setting any limits as to who, among non-citizens, can be brought before them.

Now, the Attorney General is beginning a program of "voluntary" interviews of 5,000 Middle Eastern men who have entered the U.S. on business, tourist and student visas within the last two years. These persons have not committed any crimes, nor are they suspects in any criminal investigations. Rather, they are being singled out based on their nationality, race, religion, and gender.

In late November, Attorney General Ashcroft issued a memorandum asking local police departments to assist with the questioning. In part, the interviews will address the interviewee's possible involvement in armed conflicts, his knowledge of terrorism and his familiarity with weapons.

But they will also reach much further: The interviewers will ask for lists of names and telephone numbers of all of the interviewee's friends and colleagues in the United States, and also lists of places where he lives, prays, works and socializes. As a result, the government will be able to build up detailed dossiers on several thousand individuals whom there is no reasons to think are criminals.

The government need not intern people now that it can create such profiles. A person may feel "fenced in" by virtue of the data that the government will collect. In a country where freedom of thought, movement and association are prized, these interviews directly counter such values.

The interviews at best are a waste of resources and at worst, a blatant example of improper profiling. "Needle in a haystack" law enforcement will not help us to effectively combat terrorism. It will also cause unnecessary fear and mistrust among Arab-American immigrant communities in the United States.

The Interviews' "Voluntary" Nature Makes Them No Less Intimidating

The Attorney General has described these interviews as voluntary, and Michigan - a state with a large Arab-American population - has decided to extend "invitations" to 700 persons asking them to come in for FBI questioning rather than simply coming to knock on their doors.

Either way, the "voluntary" nature of the contact masks the reality of informal but potent government coercion. The "requests" will be terrifying to many, and will feel coercive - particularly to persons who have come from totalitarian governments, for whom "disappearances" are a reality of daily life.

Moreover, the interviews, which are meant to be informational, may have surprising consequences for those who come forward to cooperate. If an interviewee has a minor visa violation he may find himself behind bars for an indefinite period.

A recent memo from the Immigration and Naturalization Service sent to attorneys general across the nation, states that certain interviewees may be detained without bond. If the FBI or the United States Attorney's Office requests that someone with a visa violation be detained under no bond, this request is meant to be honored by state law enforcement.

The government should not ask persons to cooperate only to lock them up once they arrive at the doors of the police station.

The Taint of Racial, Religious, and National-Origin Profiling

The government has claimed it has selected the interviewees based on national origin (their home countries are thought to harbor terrorists), not race or religion. But race and religion likely play a part.

Consider that after the Oklahoma City bombing, the government did not expend resources inviting militia group members for interviews. Nor have we fought organized crime by interviewing Italian immigrants or visitors. Nor do we interrogate Irish Catholic immigrants or visitors in order to find persons who may be involved with the Irish Republican Army.

It is not surprising, then, that some Arab-American commentators have expressed fear that the interviews involve wholesale racial, religious or national origin profiling, and are therefore unconstitutional.

Dragnet Justice Is Not Efficient

Not only will the process be tainted by reasonable suggestions that profiling is occurring, but the cost of identifying, inviting and then interviewing 5,000 Middle Eastern men is likely to be high both in terms of financial and human resources.

Rather than patrolling our streets or complying with domestic terrorism alerts issued by the federal government, police officers now will be asked to spend time interviewing several thousand persons in the hope that they will find some new information about Al-Qaeda.

Will the interviews bear fruit? It is unlikely. True terrorists are unlikely to attend the "voluntary" interviews. They may operate under different names from those under which they entered the country - or they may go underground, switching names when they receive the interview letter.

Moreover, the FBI would be more likely to elicit cooperation through a heartfelt appeal to Arab-American communities and visitors from Middle Eastern countries for information, than with a letter to individuals that will inevitably perceived as hostile, threatening, and unfairly based on the recipient's national origin, race, or religion.

The Reasonable Fears of Innocent Interviewees

The people we will be terrifying will probably, then, be entirely innocent. Imagine that you are a Middle-Eastern man who receives a letter from the government. And assume you have no connection at all to terrorism. You would still likely be scared and nervous - just as recent recipients reasonably have been. And you would likely still have many questions and reasonable fears about the interviews.

You might wonder: Should I bring a lawyer with me? The letters do not make it clear whether you can bring an attorney. What if I cannot afford one? Should I risk going alone, or is it better just not to go, since the government claims these are "voluntary"? If I don't go, will they assume I am a terrorist? Will they start following or surveilling or wiretapping me? Should I just leave the country? Is that the message these letters are really meant to convey?

Even though I have no connection to terrorism, what if the government thinks I do? For example, if a charity to which I belong or make donations is later deemed to have terrorist links, will I be penalized even if I had no idea about the link? What if the government does not believe that I didn't know?

What impact will my statement have on possible future criminal prosecution against me? What if my answers are incorrect, or my memory is not accurate? What if my statements are later proven to be untrue, and the government thinks my honest mistake is some kind of cover-up or evidence of crime?

What if my English is okay, but not perfect? Will there be an interpreter? What if my understanding of a question is different than the government's - perhaps because of language differences?

Will my community shun me because I have been required to go for an interview? Will my neighbors view me with suspicion? Might someone even attack me if they know that I went for an interview - or that I decided not to? If someone in my community is later detained or arrested, will I be blamed?

The letters being sent to individuals do not provide many answers to such questions. The Justice department guidelines for the interviews do not instruct law enforcement to inform persons that that have a right to refuse to answer questions or that they have the right to have a lawyer present.

The American Civil Liberties Union, in an attempt to fill the information void, has released a document that sets forth the constitutional rights of non-U.S. citizens who are being questioned by law enforcement. These rights include the right to an attorney.

Obviously, the interviews will be accompanied by a great deal of fear and uncertainty - and the expense and time of hiring a lawyer. Should we inflict this burden on people who we have no evidence at all to suggest are terrorists?

In the former Soviet Union and East Germany, neighbors were encouraged to spy on one another and to serve as government informants. People lived in constant fear and suspicion and could not talk freely. With the fall of the Berlin Wall, the East German secret police files revealed that even husbands and wives had spied on one another.

We should not replicate such practices. Law enforcement should do its own investigating and not ask a large segment of the community to act as informants.

How Foreign Visitors Help the U.S.

These interviews have another cost, besides the psychological and economic cost to the interviewees, and the cost of sending a message of racial or religious profiling. They also could drive present and future visitors out of the country.

If so, that would be a serious loss. Some interviewees may be relatives of U.S. citizens or permanent residents visiting family, who will not feel comfortable visiting again. Moreover, even when visitors are not family members, the United States benefits tremendously from the presence of foreign students, workers and tourists. Many of those being interviewed are foreign students who pay tuition to American colleges and universities.

Yet recent waves of detentions and interviews may deter many foreign students from wanting to study in the United States. Why spend money here (private funds or foreign government scholarships) when you can do so in another country that may be more hospitable and welcoming to you?

Possible Conflict Between the Interviews and Local Privacy Laws

As mentioned above, rather than conducting the interviews themselves, the federal government has asked local law enforcement to do its job. Several police departments, however, have exposed concerns or reservations about the interviews.

Several police departments - including three in Oregon ant at least one each in Michigan and California - have refused to help federal officials because of a fear that such inquiries would violate state anti-discrimination or privacy laws.

University of Wisconsin-Madison's Chancellor has announced that the university police will not assist in the questioning of international students asked to participate in the interviews. The university has also stated that it will provide federal officials only with information that is already considered public unless legally required to do otherwise.

Oregon Police Chief Andrew Kirkland stated that finding and interviewing 200 Middle Eastern men in the Portland Oregon area and also using FBI guidelines for interviewing them would violate two Oregon laws. One prohibits the police from acting as immigration agents. Another (referred to by some as the anti-McCarthyism law) prohibits the policy from collecting information on any individual or group unless such information is related to criminal activity.

Portland's mayor supported the police chief's interpretation of Oregon law. However, Oregon's Attorney General has issued an opinion stating that the request does not violate Oregon law. Nonetheless, the disagreement shows that it is not clear exactly where the legal boundaries are - a particularly troubling reality with respect to interviews that are already controversial and problematic enough without this legal ambiguity.

Finally, even if the Oregon anti-McCarthyism law is not violated in its letter, as the Attorney General claims, we should be concerned - not just in Oregon, but nationally - about the values the law seeks to protect. Creating dossiers on those who are not criminal suspects, our history has shown, is a practice that has a huge potential for abuse.

Anita Ramasastry is an Assistant Professor of Law at the University of Washington School of Law in Seattle and the Associate Director of the Shidler Center for Law, Commerce & Technology.

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