Questioning the Questioning
Is the federal government's Muslim-American voluntary interview program violating civil rights?
Last week, when Nabil, a Muslim-American store owner, heard that the United States Department of Justice would be requesting interviews from 5,000 legal immigrants of Middle Eastern decent, his first reaction was fear. It wasn't that he was scared to participate, if asked. Rather, he said, it was the idea that the government was requesting people to come in based solely on their country of origin and when they entered the United States.
"The people who are getting questioned are being called in for no reason," said Nabil, who asked that his real name be withheld. "It seems like racial profiling, and it scares me because they are just picking people out and nobody really knows what they are calling them in for. Just because you are Muslim doesn't mean you are an extremist."
"The Justice Department is requesting the interviews in hopes of obtaining information about the terrorist attacks of Sept. 11," said assistant U.S. attorney Robert Storch. The interviews are to be conducted by various law enforcement agencies, including the FBI, local police departments and other antiterrorist task forces.
"There was a directive from the attorney general [John Ashcroft]," said Storch. "We certainly are going to follow that, given the nature of the threat against the country and what happened on Sept. 11. We are trying to do everything we can to gather information that might be helpful in combating some future tragedy."
Storch said the persons being asked to come in are young males between the ages of 18 and 33 who came into the country after January 2000 from countries identified as having terrorist activity -- more specifically, Al Qaeda activity. The questions asked, said Storch, are designed to determine if the interviewee has information that can aid in the investigation. He was not specific about the type of questions, but he emphasized that the interviews are voluntary, and that a person may refuse to participate.
"These people are not suspected of any criminal conduct," said Storch. "That is not how the list was created. The government keeps records of who comes to the United States in various immigration capacities. These names were obtained from those records."
The interviews have been characterized by the Bush administration as nothing more than a "relaxed chat," according to The New York Times.
"We are being kind and fair and gentle in terms of inviting people to participate," Ashcroft told the Times.
But for many civil libertarians, immigration lawyers and Arab-American groups, these so-called friendly chats, by their very nature, are coercive and threatening. They argue that the selection process is merely another form of racial profiling; as a result, they say, the questioning process violates the United States Constitution.
"It's a dragnet operation," said Louise Roback, executive director of the New York Civil Liberties Union. "They are targeting people solely because of their Middle Eastern descent, not because of any reasonable suspicion that they are involved in any criminal activity."
Roback said that with hundreds of people already in jail for minor immigration violations, the interviews could never be truly voluntary.
"Although they say the primary purpose of the interviews is not to inquire about a person's immigration status, they can ask about that," said Roback. "The threat of being detained, together with the atmosphere of a vast investigation, in and of itself is coercive."
Roback also noted that the Justice Department's guidelines for interviews do not instruct law enforcement to inform people of their right to remain silent or the right to have a lawyer present.
The ACLU Web site points out that some questions could put people in the "suspicious" category. For example, a person could be asked whether they support any cause that terrorists espouse -- that presumably includes Palestine statehood, which the Bush administration itself supports. The concern is that an honest response could trigger suspicion and further investigation.
"People may incriminate themselves unknowingly," said Roback. "Many of these people are from countries where they do not have these same laws, so they may not know their rights."
Bill Fanciullo, a criminal defense lawyer who served as a federal prosecutor for 10 years, said that he did not believe that the government's procedures are violating the rights of individuals being brought in for questioning. He said that since people are being asked to come forward voluntarily, federal officials and law enforcement agents are not violating civil rights, as law enforcement agents are permitted to ask people for information. The Fifth Amendment, he said, offers potential interviewees the right to refuse to speak to authorities, and the Fourth Amendment protects them from unreasonable searches and seizures.
Further, he said that it is not required in all cases for law enforcement to inform individuals of their rights; that, he said, is only required when someone is taken into police custody.
"There are legal guidelines in this country for these types of situations," he said. "And I am not seeing them violated."
But Mark Mishler, a lawyer at the firm of Walter, Thayer & Mishler, said that if people are being singled out based on criteria such as age, ethnicity or gender, then it's possible that rights are being violated.
"Arab-American background, age, gender, arrival into the United States at a certain time -- there is nothing inherently improper or criminal about that as a test for whether somebody is subject to law-enforcement interrogation," said Mishler. "This strikes me as violating rights that people have under the 14th amendment, which states that people are not supposed to be discriminated against."
Mishler voiced concerns about First Amendment rights, as well.
"Are Arab-Americans going to feel like they can't participate in certain community organizations out of fear that attending a meeting or a particular religious institution or ceremony might then target them for government harassment?" he asked. "These are all First Amendment issues."
But he said it is difficult to determine whether or not the interviews are violating civil rights without actually looking at each case individually.
"We can raise lots of concerns and questions," said Mishler. "But without really knowing what is going on, it is really difficult to make any categorical statements."
Storch insists that in this district the interviews will be conducted in a fair manner, and those conducting them will make it clear that it is voluntary.
"Nobody is being coercive, nobody is being dragged down to the station," said Storch. "This is being described as a roundup or dragnet operation and that is just not happening."
But for Nabil, who has lived here for more then 10 years, innocent people shouldn't be subject to this type of treatment.
"Just because I am from Pakistan and have a history of being involved with a political party makes me a candidate for questioning," he said. "My civil liberties? They are out the window."
Nancy Guerin is a staff writer at the Albany, New York alternative newsweekly, Metroland.