Pro Bono Legal Representation in Voluntary Interviews, Profiling by FBI
By: John Floyd, Houston Criminal Defense Attorney
On August 15th, 2009, I received an award in recognition of my pro bono work for the Muslim community in Houston. CAIR-TX, Houston Chapter, presented the award upon which was inscribed: “In Recognition of: His personal dedication and committed assistance in providing protection to our community from undue harassment from federal agencies.” The award came after years, and hundreds of hours of pro bono work, representing individuals targeted under the Department of Justice’s voluntary interview program. In almost every case, these individuals were targeted for interview simply because of their religious beliefs, places of worship or country of origin and were not suspected of any criminal activity whatsoever. The voluntary interview program is simply an intelligence gathering effort designed to collect data about the Muslim community in hopes of preventing future acts of terrorism.
Sometime in 2002, I was approached by a fellow lawyer who worked with ACLU and had been offering his services pro bono to represent individuals targeted for “voluntary” interviews by the FBI and other agencies comprising regional Joint Terrorism Task Forces. He needed some criminal expertise and hoped I could help in what a growing problem in the Muslim community. As I soon realized, the term “voluntary” was misleading. Voluntary meant you were not under arrest, were probably not the target of a criminal investigation, and could refuse the interview. But, in practical and emotional terms, the process was hardly voluntary.
The agents would approach unsuspecting people at their homes and request entry to ask a few questions. As most legally untrained and intimidated people would do, the agents were allowed in and would begin to ask questions. If the interviewee began to feel uneasy, scared or insulted by the questions and refused to answer, or was intelligent and asked for a lawyer, the agents would persist, normally invoking the old reliable police tactics of “if you don’t have anything to hide or if you haven’t done anything wrong, you don’t need a lawyer and should talk with us.” If the person had resolve and refuse to talk, agents would threaten to begin interviewing neighbors, friends, family and even employers, knowing these threats would normally coerce compliance.
The interviewing agents were sometimes aggressive, insulting and asked questions contrary to the letter and spirit of the principles set out in our great Constitution. It was a new McCarthyism, but this time Big Brother was focused on the Muslim community and, after 911, nobody seemed to care. The common response to these abuses, and other Bush era tactics of terror mongering and the “you’re either with us or against us” propaganda, was fear inspired complicity.
Some Muslims began to fear attending their mosques, speaking to friends about their religious views and voicing their political concerns. The overall hostile political atmosphere of the day, coupled with these voluntary interviews, was having a true dampening effect on the freedoms of religion, association and speech so prized in America and by our founding fathers.
I agreed to help represent those targeted for these voluntary interviews pro bono. The only caveat I added, as I am a criminal defense lawyer, was that I could not represent anyone pro bono who faced criminal exposure. Little did I realize the extent of the commitment I had made and the hours of work I would give to our project over the coming years, as the number and intensity of interviews would only increase.
As luck would have it, my first pro bono voluntary interview was conducted by an aggressive, belligerent FBI Agent. I believe he was a former marine. Our client had been contacted by the agent and was very concerned, if not terrified, about why he was being targeted by the FBI. He was also obviously intimidated by the harsh tactics used by the agent. We met with the client for an hour or so and determined that he had absolutely no criminal exposure and that this was a true “voluntary interview.” Our client wanted to talk with the agent, if for no other reason than to get him off is back, so we agreed to a meeting. However, and pursuant to our advice, he would only answer specific questions and would not answer those that infringed on his Constitutional rights, ie. questions about his religious beliefs, which mosque he attended or give names of his friends or associates at the mosque.
Within minutes of starting the interview, the agent began to express hostility with the idea of having lawyers in the room, especially lawyers who understood the law and DOJ policy concerning voluntary interviews. His already nasty personality became even more heated, eventually hitting the table and yelling that our “client did not have a right to a lawyer!” We immediately ended the interview. A few days later, we sent a letter of concern to the Special Agent in Charge of the FBI in Houston expressing our concern with the tactics and tone of the interview. The agent never harassed our client again.
After witnessing this agent’s incredibly hostile and abusive demeanor toward our client, a law abiding person who was not a criminal target, who was only being targeted for the interview because of his religion and race, I could only imagine which direction this interview would have taken had lawyers NOT been present. At that moment, I was fully committed.
Over the years, I have consulted over a hundred individuals contacted for voluntary interviews. Some only needed us to call an agent to professionally decline the interview, others have wanted to cooperate because they are proud Americans and wanted to help, still others felt compelled to do so in order avoid an aggressive agent going to their employer or neighbors. What they all had in common was they wanted the assistance of counsel and for things to remain professional.
For most of these clients, I dedicated at least an hour, pre-interview, to consult with them and probe into their past, their travels, their politics, whatever questions I could think to ask to ensure they have no criminal exposure. This is a critical and time consuming task that any lawyer volunteering to help clients pro bono must be prepared to do. Just like with paying clients, we must know our pro bono client’s personal history and current concerns to determine whether they have any potential exposure, whether it’s criminal, immigration or otherwise. We must also clearly explain to these clients that making false statements to federal agents is a federal felony. So, if they want to be interviewed, they must either tell the truth or remain silent. It is malpractice, in my opinion, to allow a voluntary interview to occur without properly consulting and interviewing the client. There are many individuals who have been convicted and sentence to prison for making false statements to federal agents, so it is imperative the interviewee understands this important fact.
I must also say, over the years, the quality of the agent’s questions and sensitivity for religious concerns has, in general, improved. While there are still some bad apples conducting these interviews, so consumed by hatred and prejudice that they will never change, the efforts of pro bono lawyers across this Country and the sensitivity and legal training provided by DOJ has made a positive impact on the manner of these interviews.
Over the last week, since receiving the CAIR award, I have considered the event, during which I received an incredibly warm reception and enthusiastic standing ovation, and the positive impact that pro bono work does for the reputation of the legal profession.
Before this event, I never considered the impact of my pro bono work on the community at large. I only saw it as a good service to the individual client. I now have a greater appreciation for the larger impact that doing pro bono work can bring to a community and the positive effect such efforts have upon the public’s image of lawyers in general. Yes, it can be demanding, time consuming and at times frustrating, but it is vitally important. We lawyers have unique tools to help those in need and we owe it to ourselves and our communities to do so.
Given the previous eight years of fear and hate preached from the highest levels of government, the Muslim community is very vulnerable to false aspersion, suspicion and unwarranted attack. I will do my modest part to help.
I have been asked many times why I have given so much time to this effort. My answer is simple: Because it is the right thing to do. I also have skin in the game. In 1994, I married a Muslim woman from Pakistan and took the Shahada, which is the Muslim testimony of faith, “There is no god but Allah, and Mohammad(Peace be Upon Him) is the Messenger of Allah.” While I am not a scholar, I am a member of this community and my work as a pro-bono lawyer has made me a better Muslim. I am grateful for the opportunity to serve my community and for the blessings, friendship and knowledge I have received in return.
I would also like to thank the Houston Chapter of CAIR Texas. They have done an admirable job in spreading the word regarding individual rights in this country, especially in regard to these voluntary interviews. This is especially commendable given the harsh political environment in which they have been forced to work over the years since 9/11 and the right- wing smear job that has been put upon their organization, attributing the words and actions of a very few of their members to the entire organization.
AsSalam Alaykum, Peace be Upon You
By Houston Criminal Defense Lawyer John Floyd