Attorney General's Guidelines for Interviews Regarding Terrorism
In an effort to combat terrorism and investigate the attacks that took place on September 11, 2001, the Department of Justice announced that it will be "inviting" certain individuals to participate in "consensual" interviews. According to reports, a list of 5,000 men, between the ages of 18 and 33, who have arrived in the U.S. on various nonimmigrant visas since January 1, 2000 has been issued. Most if not all happen to be from Middle Eastern or Muslim countries.
Moreover, recently, a memorandum from the Deputy Attorney General, containing guidelines for these interviews has been made public. The memorandum is addressed to all U.S. Attorneys and members of Anti-Terrorism Task Forces. It establishes guidelines for the manner of conducting these interviews and provides an outline of the topics to be covered.
Aside from issues about racial or ethnic profiling, the guidelines also raise serious privacy and other first amendment (right to free association and expression) concerns. However, in addition to that, the guidelines contain several questions that not only compel the interviewee to reveal information regarding his own immigration status and immigration history, but also require him to implicate friends, family or acquaintances.
Although the guidelines indicate that the primary purpose of these interviews is not to ascertain the legality of the individual's immigration status, it encourages the interviewers to contact local INS officials if they suspect that a particular individual may be in violation of federal immigration laws. The guidelines state, "Those officials will advise you whether the individual is in violation of immigration laws and whether he should be detained." [Emphasis added].
Therefore, from the outset, the guidelines allow an individual not knowledgeable about immigration laws to make a determination as to whether a particular individual should be referred to the INS. The guidelines also state that the interviewers "should obtain all telephone numbers used by the individual and his family or close associates." Many foreign nationals associate with other foreign nationals, or have family members in the U.S. who may have recently arrived here. The person being interviewed is asked to implicate family, friends and associates who may have immigration issues, as well. Alternatively, the person conducting the interview can inquire as to the identities of individuals the interviewee lives with. Again, the chances of a newly arrived immigrant sharing quarters with others in the same situation are high.
The guidelines also state that individuals should be asked about their reasons for visiting the United States. If an individual is here on a visitor's visa, but is thinking about enrolling in school, or finding employment, issues may be raised as to his intent and his compliance with the terms of his visa. Immigration laws permit an individual who enters the country with one non-immigrant visa, such as a visitor's visa, to change his status to another nonimmigrant category, such as a student or H-1B visa. However, an individual not conversant with immigration procedures might erroneously determine that an individual whose visitor's visa has expired and has a pending petition is violating immigration laws and must be referred to the INS.
Although the guidelines attempt to mitigate the interrogative aspects of these so-called "consensual" interviews, and specifically remind potential interviewers that the subjects are free to "decline to answer questions," one wonders how free an individual in this situation might really feel. The guidelines state that the interviews are not "custodial interrogations," and as such, "there is no need to seek a waiver of Miranda rights." Without realizing that he has a right to remain silent, therefore, the interviewee might reveal much more about his immigration status than he must. Or, an interviewee with concerns about his immigration status may feel coerced into providing otherwise private and personal information. Alternatively, an interviewer may erroneously interpret a subject's nervousness having to do with his immigration status as cause for criminal suspicion. The difference is that traditionally, criminal suspects are given Miranda warnings and may not be arrested or interrogated without probable cause.
There is no question that law enforcement authorities in this country have a right to conduct an investigation of possible terrorist cells in the U.S. However, sweeping interrogations of mainly Arab and Muslim men based solely on what one can only presume to be their ethnicity and recent immigrant status (as if all others are exempt from engaging in such activities) raise serious issues about the legitimacy and ultimate efficacy of the investigation.
About The Author
Parastou Hassouri is an associate attorney at the Law Offices of Cyrus D. Mehta. She received her J.D. from the University of Pittsburgh School of Law in 1999. Prior to joining the firm, she served as a Judicial Law Clerk with the Executive Office for Immigration Review, New York City Immigration Court.