Know Your Legal Rights Before Talking to the FBI
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
The Fort Hood shooting massacre last year, the Christmas day bombing attempt, and the Times Square car bombing attempt have prompted the FBI to again increase its surveillance of the Muslim American community in this country. Muslim Advocates recently issued a “community alert” informing all Muslim Americans, but especially those from Pakistan and South Asia, that the FBI may be contacting them for information and advice in “addressing violent extremism.” Muslim Advocates was so concerned that it offered a free webinar about how Muslims can freely and safely work with law enforcement.
We agree with Muslim Advocates that before any Americans speak to the FBI they should have an attorney presence. The FBI does not conduct “information gathering” interviews to seek advice about how to address “violent extremism.” The FBI is a law enforcement agency whose overriding function is to investigate criminal wrongdoing, especially potential terror attacks. They can very easily, and have quite frequently, take “innocent” information provided to them and turn it into a “terrorism” investigation which actually has no foundation in fact or law. Muslim Advocates offers the following advice, to which we subscribe:
- Be smart, protect yourself, know your rights
- Protect your friends, family and community
- Learn more about how to work with law enforcement
- When contacted by the FBI, inform agency that your attorney will contact them
- Seek an attorney
Our law firm has provided pro bono assistance to hundreds of Houston-area Muslim Americans who have been faced with “voluntary” FBI interviews. Our position is not to be obstructionists but to make sure that Muslim Americans suddenly in the target sight, or even potential target sight, of the FBI have proper legal advice in the critical “information gathering” process. For instance, to inform the client that false statements to FBI agents can be a federal felony criminal offense with a possible five year term of imprisonment. Additionally, that everyone in the U.S. has constitutionally protected rights guaranteeing free exercise of religion, speech and association, which can be infringed upon by certain FBI practices and questions.
The St. Louis Dispatch reported recently that the ACLU has established a civil rights project to protect American Muslims from law enforcement intimidation, especially the FBI. Such legal projects are necessary because 2.5 million Muslim Americans were born abroad, according to a 2007 Pew Research Center report, and this necessitates that many of them travel frequently to see their families in their native countries. Such foreign travel automatically makes them “persons of interests” in the eyes of the FBI. Muslim Americans cannot engage in “innocent travel.” They are uniformly considered “suspects.”
That’s why Brenda Jones, the executive director of the ACLU of Eastern Missouri, told the Dispatch that “talking to people in the Muslim community, you get the sense that this is a group under siege.” This has been our sense from the Muslim community in Houston as well.
In many respects, this is an accurate assessment of all Muslim American communities across the nation, particularly here in Houston. Since “9/11,” the FBI has had the entire Muslim American community in its target sights. The agency’s level of interests always intensifies following either a terror attack or attempted terror attack in this country. Peter Joy, director of Washington University Law School’s Criminal Justice Clinic and professor of legal ethics, told the Dispatch that while the FBI has made “mistakes with Muslims in the past” because the agency’s focus was on “crime prevention,” he added that “those were early missteps” and the agency is now engaged in a “more positive” outreach approach.
Maxwell Marker is an Assistant Special Agent in Charge at the FBI’s St. Louis division. He conceded to the Dispatch that “there’s a climate of distrust at times. We have to do extra outreach to breach the climate of distrust and improve our relations with the Muslim community … For us to know what’s going on, what issues are affecting them, what crime problems might exist, we have to talk to people. That’s how we get information so we can have a positive impact in the community.”
We view the positive, optimistic view expressed by Professor Joy and Agent Marker with serious skepticism.
People either in, or supportive of, what’s become known as “the tea party movement” gather in large anti-government demonstrations. They carry signs calling our President and elected officials some of the most vile names and they preach a political philosophy of “take our country back” by any means necessary.
Conservative political figures inflame this anti-government extremism with talk of succession, not paying taxes, creating state militias, establishing state currency and banks, and refusing government money that would help people who are not members of the “tea party movement.” And while the FBI has probed around some of the “fringe elements” of the tea party movement for possible “terror attacks” against this country, or even against the President himself, the law enforcement agency has not targeted this movement to the same degree it has the Muslim American community. The Pew Research Center reports that 53 percent of Muslim Americans say it is more difficult to be a Muslim in this country since the Sept. 11 terror attacks—an unmistakable indicator that the FBI has unfairly targeted them in terror-related probes.
For example, the American Society for Muslim Advancement recently purchased a building near Ground Zero and announced plans to spend $100 million to build a mosque called the Cordoba House. The idea for the project has been led by the group’s Executive Director Daisy Khan, and it has generated a firestorm of criticism. The New York media has called it a “monster mosque.” Pamela Geller, the Executive Director of Stop Islamicization of America, has announced a June 6 D-Day rally to protest the creation of Cordoba House anywhere within sight of Ground Zero. Khan, on the other hand, sees it as a “peaceful offering,” a way to bridge the cultural divide between the Muslim American community and the rest of the American society.
The intense public backlash against the Cordoba House project and the FBI escalated law enforcement interest in the Muslim American communities nationwide explain why a majority of Muslim Americans feel like they are “under siege” in this country. Jay Hacking is a St. Louis attorney and a convert to Islam who works with the ACLU to protect the rights of Muslim Americans. “We, as Muslims, have an obligation to report any wrongdoing we’re aware of,” Hacking tells Muslim American organizations. “But what we’re concerned about is when people like you go into an interview with the FBI or police without knowing your rights.” Hacking says the ACLU is concerned that “Muslims – both citizens and noncitizens – have their rights violated by law enforcement officials.”
There is ample reason for this concern. Last October Abdow Munve Abdow, a Minneapolis-St. Paul resident, was an occupant in a vehicle driving through Nevada when it was stopped by a Highway Patrol officer. There were four occupants in the vehicle with Abdow. The men told the officer they were going to a wedding in San Diego, but the officer became suspicious when the men couldn’t name the person whose wedding they were attending. The officer ran the men’s name through a “federal database” and learned that the vehicle’s driver, Cabdulaahi Faarax, was a “possible member of a terrorist watch list.” The officer also learned that Abdow’s wife had filed a missing person report on him with the Culver County, Minnesota Sheriff’s office because she had not seen her husband since the day before.
The trooper contacted the FBI who made a decision to let the men go. Two days later, the Foundation for Defense of Democracies (“FDD”) reported, a Customs and Border Protection officer identified two of occupants in Faarax’s vehicle as having been dropped off by a taxi at the U.S.-Mexico border in San Yaidro just south of San Diego. That same day, the FDD says, FBI agents interviewed Abdow at his work place telling him they were investigating “missing Somali males” in the Twin Cities area.
In response to an initial question, Abdow told the federal agents that only one person traveled with him to Las Vegas and that they had not been stopped or encountered anyone during the drive. Abdow’s story began to shift, telling the agents he didn’t want to “name any names” but there had been three other people in the vehicle. He eventually told the agents the “nicknames” of those three individuals before telling the agents “I am talking too much” and saying he did not know anything.
Last October Abdow was indicted by a federal grand jury on two counts of making false statements to the FBI during the course of a “terrorism” investigation. The FDD reported that while neither the criminal complaint nor the indictment itself specified why Abdow false statements related to an ongoing terrorism investigation, they implied the trip to Las Vegas for was for “recruitment” of potential terrorists.
18 U.S.C. § 1001 prohibits making “materially false, fictitious, or fraudulent” statements in a matter that is “within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.” While a false statement to an FBI agent, or any other government agent, is punishable by five years, the penalty increases to eight years when the false statement “involves international or domestic terrorism.
The FDD advises that the best defense in cases like Abdow is the “literal truth” defense successfully employed in United States v. Subeh, 2006 U.S. Dist. LEXIS 45514 (W.D.N.Y. July 5, 2006). The Subeh case represents why so many Muslim Americans distrust the FBI. In that case, Subeh was asked by FBI agents if his brother, Ismail Dorgham, had any interest in becoming a “suicide bomber.” He told the agents he could not answer that question. Subeh was indicted under § 1001 for making a false statement to the FBI agents because Subeh had in fact seen a letter written by his brother indicating such an interest.
The federal district court, however, found Subeh not guilty because his answer was the “literal truth.” The court pointed out that the question by the agent was “directed to Dorgham’s state of mind, not Subeh. Accordingly, Subeh’s opinions or beliefs about Dorgham’s intentions are immaterial, as such opinions and beliefs would reveal Subeh’s state of mind, not Dorgham’s … because Subeh was not asked by investigators about his own opinion, but instead was asked about Dorgham’s intentions, his statement that he could not answer a question about his brother’s state of mind was not false, and indeed, was true.”
Thus, when Muslim Americans are questioned by the FBI about whether they think anyone in their community is a potential terrorist, or acting in a manner that is suspicious, they can simply refuse to answer those questions, and, better yet, consult a lawyer of their choosing. Americans cannot either be compelled or intimidated into answering questions that go to someone else’s state of mind. Anti-government sentiment expressed by Muslim Americans in their community should have no greater terror potential than the anti-government sentiment expressed at “tea party conventions.”
Thus, Muslim Americans should place no greater “threat” to them than do members of the teas part movement. We fully recognize that Muslim Americans, just like other citizens, have a moral duty to cooperate with law enforcement when they have concrete information about impending criminal wrongdoing or wrongdoing that has already occurred. They are not bound, legal or morally, to provide speculative, opinion information to law enforcement officials about their friends, neighbors, and family members.
Of course, as the FDD pointed out, we are also mindful that “false statement charges can be used for various purposes in terrorism investigations. In Abdow’s case, it appears authorities used the charge to detain him as the investigation proceeds: it gives them a legal hook to do so. Such charges were also used for similar purposes in the ongoing investigation of Najibullah Zazi and his associates.
“There are two aspects in determining if a defendant can be detained pretrial. First, there has to be probable cause that a crime has occurred (i.e. false statements to federal authorities; although defendants will almost never be detained pretrial for this offense when there is not another, larger issue lurking in the background). Second, there is the separate question of whether detention is warranted, for which a court considers two factors: whether the defendant poses a danger to the community, and whether he should be considered a flight risk.
The crime for which the defendant has been arrested is relevant to these questions, but the prosecution can present evidence linking him to broader concerns about a Shabaab recruiting network in the Twin Cities area. Abdow was released to a halfway house with conditions placed on him; the halfway house can help the government ensure that he does not flee. Sometimes false statements are brought not because of concerns about pretrial detention, but simply because the prosecution wants to charge the defendant with the full range of offenses that he committed. Prosecutors have also used false statement charges in a manner that has been described as ‘pretextual prosecution”: that is, the underlying concern in the prosecution is the defendant’s possible connection to terrorist activity, but he is charged with a different offense.”
That’s why we advise any Muslim Americans who have any ties, no matter how innocent, with individuals suspected of being involved in any anti-government activity, speech or protest to refuse to answer any questions by the FBI without assistance of a lawyer. The FBI can manipulate an honest, innocent answer into a false statement charge and federal prosecutors can use it as a “pretext” to further a larger suspected terrorism plot. We would love to be able to tell Muslim Americans that they have no need to fear either the “FBI” or the federal government at large. But there is simply too much information in the public record that substantiates why Muslim Americans should have legitimate, even compelling reasons to distrust all law enforcement and intelligence agencies. We would not be honest, responsible legal advocates if we advised Muslim Americans otherwise.
The United States Government, and all its law enforcement agencies, must do more than “pay lip service” with its “outreach” efforts to the Muslim American community before there can be an environment of cooperation and trust between the two. This begins with an honest and frank discussion about government abuses of Muslims since 911. Real efforts to reach out and meet members of the community, and attempts to learn about Muslim culture, will go miles in decreasing the paranoia felt by law enforcement towards Muslims and vice-versa. There is a real opportunity to begin this process now, but it will not go any where unless the “voluntary” interview program ceases and the FBI quits “talking at” the community.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair