The American-Arab Anti-Discrimination Committee (ADC) is deeply troubled by new guidelines that will give federal law enforcement authorities carte blanche to conduct investigations of individuals on the mere suspicion of questionable activity or upon meeting the FBI’s assessment of what it considers a threat. This change will essentially move FBI investigations from being evidence-driven to those potentially based purely on suspicion.
These revised Attorney General guidelines on FBI investigations will be implemented on October 1, 2008. While the FBI is working on a supervisory-level review directive on how to implement these new guidelines to their field divisions, this will not be finalized for some time after agents are given this new authority by the Attorney General’s office.
ADC has been closely following the development of these revised FBI guidelines and has continued to engage with the U.S. Department of Justice (DOJ) and the FBI in an effort to address these concerns prior to implementation. ADC staff members have been allowed to review the draft language in a meeting at DOJ. ADC has also been working with allies in Congress and other civil liberties and post-9/11 community organizations to outline specific concerns to DOJ. Starting in early July 2008, ADC submitted comments along with several other organizations in opposition to the DOJ’s implementation of these newly revised investigative guidelines. DOJ officials have stated the purpose of their effort in making these revisions is only to consolidate several separate guidelines to ensure more effective investigations by their agents. When this regulation was originally instituted in the 1970s it was part of a series of law enforcement reforms to cut down widespread abuses of police investigative authorities for political purposes
The Department of Justice’s consolidation and expansion of its investigative authority will seriously jeopardize the Constitutional and privacy rights of all Americans and particularly Arab, Muslim and South Asian Americans during this election season. The proposed revisions would also encourage the collection and dissemination of domestic intelligence information not related to criminal activity, This is a serious misstep on the part of the Attorney General’s Office which may have a negative impact on the serious coordination, trust, and communication the FBI has been able to establish with these communities. One may wonder why the Attorney General is rushing to implement the guidelines before the FBI is able to prepare the necessary directives giving their field divisions guidance on the supervisory review process and safeguards for these new techniques.
Implementing these unnecessary changes will encourage law enforcement agencies to shift from enforcing the law to gathering “intelligence” in ways that are harmful to a communities’ ability to exercise their Constitutional rights of free speech, freedom of religion and freedom of association. Law enforcement for the purpose of detecting potential terrorism threats should be based on evidence and is best approached in terms of a partnership between community and law enforcement. The proposed changes likely will lead to intelligence-gathering and dissemination that undermines Constitutional rights and community-police trust, while adding nothing to our security.
The revised guidelines maintain the Attorney General’s racial profiling guidelines issued in 2003. In 2003, ADC expressed concern for the apparent loopholes which allow officials to bypass protections against racial profiling for broadly termed national security concerns.
ADC is also concerned about language in the revised guidelines which allows the FBI and other law enforcement agents to share collected information with foreign intelligence services, their ability to take part in special events and demonstrations they determine a threat and the ability to investigate organizations or certain enterprises again on an FBI-determined assessment of threat that is not based on actual evidence.
Based on experiences in the community in recent years, and purely as a precautionary measure, ADC is presenting some suggestions for the consideration of the communities, to be evaluated by each family and individual according to their own best judgment and in the context of their own situation and relationship with their local community. ADC urges everyone to exercise common sense and rely on their own best judgment, but offers the following as suggestions should the need arise:
Know your rights
1) Your absolute discretion as to whether or not to submit to any voluntary interview. This means it is your right to decide whether to submit to an interview.
2) Your right not to answer questions without the presence of an attorney. ADC highly recommends that individuals not participate in any interviews without an attorney.
3) The fact that the FBI and law enforcement agencies cannot threaten to take away your green cards or otherwise interfere with your immigration status. If an FBI agent or law enforcement officer makes any such threats, you have the right to terminate the interview and retain an attorney. Individuals who face any such threats should contact the ADC Legal Department immediately by calling 202.244.2990 or via email at: email@example.com .
4) Your absolute discretion in selecting the date, time, and location of any voluntary interview as well as who may attend the interview including an interpreter if needed. Remember that the interview is voluntary unless specifically told otherwise.
5) Your absolute discretion in selecting what questions to answer during such a voluntary interview. For example, one may choose to answer questions about their neighborhood or activity they may deem suspicious and yet refuse to answer any questions regarding their immigration status, political views, or religious beliefs and practices.
ADC urges anyone who is contacted by federal authorities or law enforcement concerning this matter to report the incident to the ADC Legal Department by calling (202) 244-2990 or via email at: firstname.lastname@example.org . Upon request, ADC will do its best to provide third party observers, in cases where individuals would want such additional safeguards.
The writer is executive director of the American-Arab Anti-Discrimination Committee.
Editor’s note: At press time, the Department of Justice had decided to delay implementation of the new guidelines discussed in this article. No new date was announced.